Citation Nr: 0729601 Decision Date: 09/20/07 Archive Date: 10/01/07 DOCKET NO. 05-24 405A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable evaluation for residuals of a right little finger injury. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from October 1992 through June 1994, with additional, unverified periods of service prior to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT The residuals of a right little finger injury are comparable to amputation. CONCLUSION OF LAW The criteria for a 10 percent rating for a right little finger deformity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5156, 5227 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that her right little finger deformity is disabling and warrants a compensable rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which sets forth separate rating codes for various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Generally, a disability must be considered in the context of the whole recorded history. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. §§ 4.1, 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5227, which pertains to ankylosis of ring or little finger. DC 5227 provides a noncompensable rating for such ankylosis whether it be unfavorable or favorable, or of the major or minor extremity. There is no compensable rating for the little finger for ankylosis. Likewise, DC 5230 provides only a noncompensable rating for the ring or little finger for any level of limitation of motion. The criteria for DC 5156, amputation of the little finger, provides a 10 percent rating for amputation at the proximal interphalangeal joint or proximal thereto (either hand), without metacarpal resection. With metacarpal resection (more than 1/2 of that bone lost), a 20 percent rating is warranted (either hand). At a VA medical examination of the right hand in October 2003, it was reported that the veteran was right handed. Her right little finger was reported as in a fixed abnormal position , with chronic pain in the finger, especially in the joint, and down the side of the hand. The pain is aggravated by bumping her hand and opening car doors. The veteran reported no impact on her activities of daily life. She is able to write, grab things, and hold objects. The physical examination revealed right fifth finger joint deformity, but good grip strength at 5/5 bilaterally. She was diagnosed with boutonniere deformity of the right fifth finger. Range of motion of the fingers was essentially normal, except the flexion of the PIP joint was 50 degree contracture, with 0- 100 noted as normal. There was no indication that the right little finger dysfunction influence the adjacent fingers and their function, or the right hand as a whole. A December 2004 VA outpatient treatment also shows that the veteran complained of pain in her fingers with some associated spasm. Later, private medical evidence shows treatment for the right little finger and a suggestion of surgery. In particular, the physician recommends a palmar plate release and cross finger flap from ring to little finger. See records from Roderique Centre for Hand & Upper Extremity Surgery. The veteran's August 2007 hearing testimony is consistent with the medical evidence. She reported pain in her finger and the palm of her hand. See hearing transcript at page 10. She reported pain when lifting things, such as the trays of mail she must lift in her work with the U.S. Postal Service. Id. at page 2-3. A review of the entire claims folder reveals that the evidence does not show that the veteran's right finger deformity meets the criteria for a compensable rating. The medical evidence shows the right ring finger has been described as deformed. The veteran is able to make a fist with her fingers approximating her palm, and her grip has been described as 5/5, equal on both hands. Other than the fixed flexion of the right little finger joint, motion exists in the remaining fingers. The evidence does not show that the right little finger deformity warrants a compensable rating under DC 5227. The veteran has testified and offered statements concerning her right finger complaints and symptoms. Although she may testify as to symptoms she perceives to be manifestations of disability, the question of whether a disability is present is one which requires skill in diagnosis, and questions involving diagnostic skills must be made by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As such, the veteran's opinion in this regard is of limited probative value. However, it is the Board's judgment that with application of the note following Diagnostic Code 5227 to the effect that consideration is to be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand, that a 10 percent rating may be assigned for the veteran's residuals of fracture of the left fourth finger under the rating criteria. Subjective evidence of right little finger pain at finger and down the hand has been reported. See hearing transcript at page 10, and October 2003 VA examination report. She experiences spasm in the fingers. She testified that the finger interferes with her work. The Board finds that the residuals of fracture of the right little finger, including ankylosis, limitation of motion, right finger pain, right hand pain are analogous to that associated with amputation of a ring finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. The rationale involves application of 38 C.F.R. §§ 4.40, 4.45 and 4.59 as well as 38 C.F.R. §§ 4.7 and 4.3 to arrive at the conclusion that under criteria the service-connected residuals of an injury of the right little finger, warrant a 10 percent disability rating, but no more. In further support for this decision, the Board notes that, under 38 C.F.R. § 4.59, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of her claim for a compensable rating for her right little finger disability. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. VA sent the veteran a letter in August 2003 informing her of the evidence necessary to establish an increased rating. She was notified of what was necessary to establish her claim, what evidence she was expected to provide, and what VA would obtain on her behalf. The letter notified the veteran that it was her responsibility to ensure that all relevant evidence was received by VA and that she could obtain records on her own and send them to VA. This letter satisfied the requirements of 38 C.F.R. § 3.159(b)(1) (2006). While the veteran was not informed of the type of evidence necessary to establish an effective date or a disability rating, as is required under Dingess v. Nicholson, 19 Vet. App. 473 (2006), these issues are moot considering the disposition of this issue on the merits. VA also has a duty to assist the veteran in substantiating her claim under 38 C.F.R. § 3.159(c), (d) (2006). Here, the veteran's statements, her service medical records, and VA and private treatment records have been associated with the claims folder. The veteran was afforded a VA examination in October 2003 and the report is of record. The veteran was also afforded a Board hearing and the August 2007 transcript is associated with the claims folder. The veteran has not notified VA of any additional available relevant records with regard to her claim. VA has done everything reasonably possible to assist the veteran. A remand for further development of these claims would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to a 10 percent rating for residuals of a right little finger injury is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs