Citation Nr: 1414639 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 10-06 513 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to an increased disability rating for left ring finger injury in excess of 10 percent. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 2000 to July 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from June 2009 and August 2009 rating decisions of the RO in Oakland, California, which granted an increased disability rating of 10 percent for the service-connected left ring finger injury with an effective date of February 4, 2009. This case was previously before the Board in November 2011. The Board denied an increased disability rating in excess of 10 percent for the service-connected left ring finger injury, and also denied an effective date earlier than February 4, 2009 for the 10 percent disability rating. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2013 memorandum decision, the Court ordered that the part of the November 2011 Board decision denying an increased disability rating for a left ring finger injury, including denial of an extraschedular rating, be set aside and the matter remanded for further adjudication. Specifically, the Court found that the Board failed to address a 2009 medical examiner's opinion that the Veteran's left ring finger "was entirely fixed, ankylosed and non-usable." The issue of entitlement to an earlier effective date was affirmed. That Board notes that, as to the issue of entitlement to an extraschedular rating, the Court explained that "the Board found no exceptional factors warranting an extraschedular rating, and [the Veteran] fails to demonstrate that the Board clearly erred in that finding." Further, the Court advanced that the Veteran failed to demonstrate that the Board's evaluation under Diagnostic Codes 5227 and 5155, as opposed to a different diagnostic code, was arbitrary or capricious. However, because these questions are inextricably intertwined with the remanded issue of entitlement to an increased disability rating, the Court also remanded these questions for consideration. In the instant decision, the Board grants an increased disability rating of 20 percent for the entire rating period on appeal for the Veteran's service-connected left ring finger injury. As this is the maximum schedular disability rating possible (i.e., the rating for a completely amputated minor ring finger), there is no need to further discuss the Board's remand responsibilities. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). 38 C.F.R. § 4.71a, Diagnostic Codes 5227-5155 (2013). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. FINDING OF FACT Throughout the rating period on appeal, including due to constant finger pain, swelling, painful flare-ups, and a complete inability to use the minor ring finger, the left ring finger injury has more nearly approximated amputation of the minor ring finger with metacarpal resection (more than one-half the bone lost). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire increased rating period on appeal, the criteria for a disability rating of 20 percent for left ring finger injury have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.14, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227-5155 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this decision, the Board grants an increased disability rating of 20 percent for the Veteran's left ring finger injury. As such action represents a complete allowance of the Veteran's claim, no further discussion of VA's duties to notify and to assist is necessary. Increased Disability Rating for Left Ring Finger Injury Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2013). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The RO assigned a 10 percent disability rating under Diagnostic Codes 5227-5155. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned). Limitation of motion of the ring or little finger for the major or minor extremity warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5230. Unfavorable or favorable ankylosis of the ring or little finger for the major or minor extremity also warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5227. For the index, long, ring and little fingers (digits II, III, IV and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. 38 C.F.R. § 4.71a, Note 1. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). When rating under Diagnostic Code 5227, consideration is to be given as 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. 38 C.F.R. § 4.71a. Amputation of the ring finger of the major or minor extremity without metacarpal resection at the proximal interphalangeal joint or proximal thereto warrants a 10 percent rating, while amputation of the ring finger of the major or minor extremity with metacarpal resection (more than half the bone lost) warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5155. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinsk, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). At an April 2009 VA finger examination, the Veteran conveyed that the pain and swelling in his left ring finger had worsened. Pain was moderate to severe, with daily flare-ups. He advanced being unable to adequately use his left ring finger, and he would avoid doing so when performing actions such as typing and lifting heavy objects. The Board notes that VA has received numerous statements made by the Veteran, along with medical documentation and other lay evidence, concerning the status of his left ring finger. The reported symptomatology primarily consists of pain (at a level ranging from 2 to 10 out of 10 depending on the activity), swelling, reduced mobility, sensitivity to cold and hot temperatures, and interference with activities involving the use of his left ring finger. The April 2009 VA examination report conveys that, upon objective examination, the left ring finger was obviously ankylosed. The metacarpal phalangeal joint was normal with full extension to zero degrees with hyperextension to 30 degrees and flexion at 90 degrees. The distal interphalangeal joint also had normal function with flexion of 0-80 degrees and full extension to 0 degrees. Both joints had normal range of motion after three repetitions without reduction of joint excursion, or weakness, pain, fatigability or loss of coordination. There was angulation radially to the distal component of the ring finger. The proximal interphalangeal (PIP) joint was chronically ankylosed with a deformity fixed at 30 degrees, thereby creating an inability for full flexion, which would be normally be 100 degrees, resulting in what the VA examiner referred to as a DeLuca "score" of negative 70 degrees. The entire digit showed deformity, loss of coordination, and an inability to be properly utilized. The assessment was chronic dislocation of the PIP joint of the fourth digit of the left hand. After diagnosing the Veteran, the VA examiner went on to opine that, as a result of the service connected left ring finger injury, the Veteran had diminished strength and dexterity in the non-dominant left hand. Further, and most probative to the instant matter, the VA examiner opined that the left ring finger should be treated as if it were amputated as it is entirely fixed, ankylosed, and non-usable. After a review of all the evidence, lay and medical, the Board finds that, resolving reasonable doubt in favor of the Veteran, and considering the findings of the VA examiner in the April 2009 VA examination report, for the entire increased rating period on appeal, including due to constant finger pain, swelling, painful flare-ups, and a complete inability to use the minor ring finger, the Veteran's left ring finger injury has more nearly approximated amputation of the minor ring finger with metacarpal resection (more than one-half the bone lost). The evidence shows that, for the entire increased rating period on appeal, the Veteran's service-connected left ring finger injury manifested as an entirely fixed, ankylosed, painful, and non-usable digit which is in approximation to that of a completely amputated minor ring finger. The Board finds that, based upon the findings of the VA examiner, the Veteran's lay statements, and resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected left ring finger is unusable and is comparable to that of an amputated minor ring finger with metacarpal resection (more than one-half the bone lost); therefore, a 20 percent rating is warranted under Diagnostic Codes 5227-5155. 38 C.F.R. § 4.3, 4.7, 4.71a. The Board has considered whether any other diagnostic code would allow for an increased rating for the Veteran's left ring finger injury in excess of 20 percent. A 20 percent disability rating is the highest available under Diagnostic Code 5155 for amputation of either the minor or major ring finger. 38 C.F.R. § 4.71a. Under Diagnostic Code 5227, either favorable or unfavorable ankylosis of the minor or major ring finger is noncompensable, and under Diagnostic Code 5230, limitation of motion of the minor or major ring finger is noncompensable. Id. Further, the evidence does not reflect that the Veteran's disability has resulted in limitation of motion of the other digits. Id., Diagnostic Code 5227. As to overall function of the left hand, the April 2009 VA examination report reflects that the Veteran has diminished strength and dexterity in the left hand. However, the examiner expressly opined that this diminished strength and dexterity should be compensated for by considering the left ring finger as if it had been completely amputated. As the instant decision rates the Veteran's service-connected left ring finger injury as if the finger had been fully amputated, the Board finds that there is no other appropriate Diagnostic Code for rating interference with the overall function of the left hand, that the increased disability rating of 20 percent fully encompasses the interference with the overall function of the Veteran's left hand, and that a separate rating is not warranted. Id. The Board has also considered whether any other separate ratings may be applicable based on the evidence. There are no symptoms associated with the left ring finger injury that would allow for a separate evaluation. Further, the Board has considered all present symptomatology of the Veteran's left ring finger injury in finding that such symptomatology and actual impairment more nearly approximates that of a full amputation of the minor ring finger. The Veteran has complete functional loss of the minor ring finger due to constant pain, swelling, and ankylosis, which together have significantly limited the use and motion of the left ring finger. 38 C.F.R. §§ 4.40, 4.45, and 4.59, along with the Court in DeLuca, instruct the Board to contemplate such symptomatology in evaluating disabilities of the musculoskeletal system; and the Board has done so here in finding that the Veteran's minor ring finger has effectively been amputated due to all of the present symptomatology which goes beyond that of simple limitation of motion. Granting a separate rating based on any part of the present symptomatology or impairment would result in improper pyramiding. 38 C.F.R. § 4.14. As previously noted, in its May 2013 decision, the Court explained that the Veteran failed to demonstrate that the Board's evaluation under Diagnostic Codes 5155 and 5227, as opposed to a different diagnostic code, was arbitrary or capricious. For the above stated reasons, an increased disability rating in excess of 20 percent is not warranted for any period. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of an extraschedular rating for left ring finger injury under 38 C.F.R. § 3.321(b)(1). As discussed above, in its May 2013 decision, the Court noted that the Veteran had failed to demonstrate that the Board clearly erred in finding that a referral for extraschedular consideration was not warranted; however, remand of the question was necessary as it was inextricably intertwined with the remanded issue of entitlement to an increased disability rating. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The Veteran's left ring finger injury has manifested in a symptomatology and functional impairment most nearly approximating an amputation of the minor ring finger due to constant pain, swelling, and ankylosis, which substantially limits the functional use and motion of the left ring finger. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The schedular rating criteria specifically provide for and contemplate ratings based on the absence of the minor ring finger (Diagnostic Code 5155). The Veteran's pain, swelling, inability to use the minor ring finger, and reduced functionality of the left hand are accounted for in the rating criteria as, taken together, the entire symptomatology has been found to be the functional equivalent of having the minor ring finger removed. In this case, comparing the Veteran's disability level and symptomatology of the left ring finger to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the left ring finger injury, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In the November 2011 Board decision, the Board found that the Veteran had reported that he was both a full-time student and employed, and, therefore, consideration of individual unemployability due to service-connected disabilities (TDIU) was unnecessary under Rice v. Shinseki, 22 Vet. App. 447 (2009). As VA has not received any additional evidence suggesting that the Veteran's service-connected disabilities have prevented him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him, neither the Veteran nor the evidence raises an informal TDIU claim. ORDER A disability rating of 20 percent, but no higher, for left ring finger injury, for the entire appellate period, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs