Citation Nr: 1751790 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-39 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for residuals of right little finger fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran had active service from July 1974 to July 1994. This matter is before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2013 and October 2015, the Board remanded the matter for further development. The matter has now been returned to the Board for appellate disposition. In October 2015, the Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) for the issuance of a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). The Board directed the Agency of Original Jurisdiction (AOJ) to advise the Veteran that the claims file would not be returned to the Board for appellate consideration of the TDIU issue following the issuance of the SOC unless the Veteran perfected his appeal. The Veteran was so advised in an SOC issued in June 2017 denying entitlement to TDIU. However, the Veteran did not file a substantive appeal with respect to the SOC. As such, the issue of entitlement to TDIU is not before the Board. FINDING OF FACT There has been no amputation of all or part of the right little finger; the residuals of right little finger fracture has resulted in functional ankylosis of the joint of the right little finger, impacting the overall function of the hand. CONCLUSION OF LAW The criteria for an increased 10 percent evaluation, but no higher, for residuals of right little finger fracture are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227, 5230, 4.73, Diagnostic Code 5309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran and his representative have not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's service-connected disability of residuals of right little finger fracture has been assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5227. A Diagnostic Code ending in "99" is an evaluation by analogy for a disability not specifically listed in the rating code. In this case, the Veteran's residuals of right little finger fracture is evaluated by analogy under Diagnostic Code 5227, the criteria for ankylosis of the ring or little finger. Under Diagnostic Code 5227, a maximum zero percent rating is assigned for favorable or unfavorable ankylosis of the ring or little finger, whether on the major (dominant) or minor (non-dominant) hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227. A Note to Diagnostic Code 5227 provides that evaluation as amputation should be considered and whether an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand. Id. Regarding limitation of motion, a maximum zero percent rating is assigned under Diagnostic Code 5230 for any limitation of motion of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). See 38 C.F.R. § 4.71a, Diagnostic Code 5230. In rating disabilities of the musculoskeletal system, VA may, in addition to applying the schedular criteria, consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran underwent a VA examination in November 2007. The examiner noted that the Veteran did not have any active orthopedic followup care for his finger, lost no time off from work, but had difficulty with writing and computer work due to a fixed angular deformity of his little finger. Household chores that required right upper extremity gripping and fine motor manipulation gave him difficulty due to pain and loss of range of motion of the right little finger. The Veteran denied any significant flare-ups or incapacitating right hand pain that had precluded nonuse in the past year. An examination revealed a fixed ankylosed deformity of the distal interphalangeal (DIP) joint of the little finger. The DIP joint was fixed at 50 degrees of flexion with complete loss of extension and flexion. The Veteran's proximal interphalangeal (PIP) joint range of motion was from 0-90 degrees, metacarpophalangeal (MP) joint 0-90 degrees. Neurovascular status was intact. Grip strength was 40 pounds on the right and 80 pounds on the left. The Veteran was right hand dominant. November 2007 X-ray results showed a healed mallet deformity DIP joint and severe osteoarthritis DIP joint of the right hand little finger. The examiner stated that the Veteran's condition would give him difficulty with heavy right upper extremity material handling and additionally would give him difficulty with fine motor manipulation such as computer entry work or typing. In a November 2007 statement, the Veteran indicated that he was right handed and the deformity of his right fourth finger was extremely painful and frustrating as it was a task to pick up a dry erase marker or a piece of chalk. Gripping anything was painful, frustrating, and embarrassing for him as well. A May 2008 VA X-ray report of the right hand showed a flexion deformity of the DIP joint of the right little finger with associated degenerative arthritis and an old healed fracture base of the fifth metacarpal bone. An August 2008 VA treatment report noted that the Veteran had continued finger hand pain. On his January 2009 notice of disagreement, the Veteran stated that his right hand was practically useless and grossly deformed. He indicated that he needed to rely on his wife and co-workers to help him with things he should have been able to do by himself. The Veteran underwent another VA examination in May 2010. The examiner noted that the Veteran's condition was stable and had no active treatment for his right little finger. He was noted to be right hand dominant. There was an overall decrease in hand strength, limited motion, deformity, weakness, and stiffness. There was no history of flare-ups. For active range of motion, there was no objective evidence of pain but limitation of motion. After repetitive use testing, there was no objective evidence of pain and no additional limitation of motion. There was no amputation of a digit or part of a digit and no ankylosis of one or more digits. There was a deformity of one or more digits, on the right little finger at the DIP joint. There was a mallet finger with 50 degree extension lag, range 50 to 70 degrees. There was decreased strength for pushing, pulling, and twisting, grip was 100 pounds on the left and 50 pounds on the right, and no fatigability. April 2010 X-ray results found DIP joint right fifth finger in moderate flexion associated with degenerative changes, old healed fracture base of the fifth metacarpal bone, and old flexion deformity DIP joint right fifth finger associated with degenerative changes. The examiner found no significant effects on usual occupation or usual daily activities. A VA examination was conducted in August 2013. However, as indicated in the Board's October 2015 remand, the examination is inadequate as the examiner only examined and provided findings of the little finger of the left hand, and not the service-connected little finger of the right hand. Therefore, the findings will not be considered in determining the Veteran's disability rating. In April 2017, the Veteran underwent another VA examination. The Veteran reported that his condition had worsened to the point that he had inability to bend his right fifth finger, causing pain and stiffness. The Veteran reported flare-ups described as sharp pain, and inability to close and use his small finger. Range of motion revealed flexion of the MP joints from 0 to 90 degrees, flexion of the PIP joints from 45 degrees to 100 degrees and DIP joint flexion from 40 degrees to 70 degrees. There was no gap between the thumb and the finger. There was no gap between the tips of the fingers and the proximal transverse crease of the hand on minimal finger flexion. Range of motion contributed to a functional loss, as it affected the Veteran's ability to flex and fully extend his right index finger, and may alter his ability to write, type, lift, grasp, and pull using his right hand. There was pain noted on exam but did not result in/cause functional loss. Pain was exhibited on finger flexion, extension, and opposition with thumb. There was evidence of pain with the use of the hand. Palpation revealed mild pain with palpation of MP and DIP joints, and pain with movement as well. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the right hand. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time, and the examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also found that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. Factors which caused this functional loss were pain, weakness, and incoordination. Range of motion would be unchanged but symptoms of pain and incoordination would increase with repeated use over time. Regarding flare ups, the examiner noted that the Veteran was not examined during a flare up, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare up. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. Additional contributing factors of disability were less movement than normal due to ankylosis, adhesion, etc., weakened movement due to muscle or peripheral nerves injury, etc., and deformity. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. There was ankylosis of the MP joint of the right little finger in extension, with no rotation or angulation of a bone. No ankylosis was found in any other fingers. The examiner found that ankylosis did result in limitation of motion of other digits or interference with overall function of the hand. The Veteran reported that his fifth finger would get in the way, and did not do what it was supposed to do. As a teacher he would have difficulty writing on the board, typing, and handling papers. He also reported that his finger got in the way of using a pen, made him unable to drive a five speed shift, and caused difficulty with buttons, zippers, and putting hands in his pocket. He also complained of stiffness and pain. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing showed a right fifth finger deformity, DIP joint held in partial flexion. The examiner also found that the Veteran's finger condition did impact his ability to perform any type of occupational task, explaining that a work position would need to allow for light duty and limited fine motor skills involving the Veteran's right hand, specifically allowing limited grasping, pulling, writing, typing, and other tasks which would utilize his right hand and fingers. As indicated above, the applicable diagnostic criteria provide that any limitation of motion or ankylosis of the little finger of either hand is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Codes 5227 and 5230. Moreover, although 38 C.F.R. § 4.59 and Burton provide that actual painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint; there is no compensable rating for limitation of motion or ankylosis of the little finger. Therefore, application of 38 C.F.R. § 4.59 does not assist the Veteran in this case. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Thus, a compensable rating for painful motion cannot be assigned in this case. The Board also notes that VA X-ray reports from May 2008 and April 2010 show degenerative arthritis only in the DIP joint of the right fifth finger. The evidence does not demonstrate that there is arthritis established by X-ray evidence of involvement of two or more major joint groups or two or more minor joint groups to warrant a higher 10 percent rating under Diagnostic Code 5003. In addition, the Board notes that the case does not warrant consideration of 38 C.F.R. § 4.71a, Diagnostic Code 5156 for amputation of the little finger. To this end, although the Veteran stated in January 2009 that he felt that his right hand was practically useless; the April 2017 VA examiner found that the Veteran would not be equally well served by amputation, and there is no other evidence to indicate such. Therefore, the right little finger disability is not equivalent to amputation. The Note to Diagnostic Code 5227 also states that an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand due to the service-connected residuals of right little finger fracture. After reviewing the evidence of record, the Board finds that a 10 percent disability rating is warranted for residuals of a right little finger fracture, based on the impact of the disability on the overall function of the hand. The Diagnostic Code which best approximates this disability picture is found in 38 C.F.R. § 4.73a, Diagnostic Code 5309. Rating under Diagnostic Code 5309 by analogy is warranted, based on the anatomical location and functions affected. 38 C.F.R. § 4.20. Injury to the intrinsic muscles of the hand may be rated under Diagnostic Code 5309 for muscle group IX, which controls grasping and delicate manipulative movements. Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Thus, injury to muscle group IX should be rated on limitation of motion, with a minimum 10 percent assigned. 38 C.F.R. § 4.73, Diagnostic Code 5309, Note. The evidence demonstrates that the Veteran has problems with gripping and fine motor manipulation of his right hand, stiffness, and some decreased hand strength. The April 2017 VA examiner found that ankylosis of the right little finger did result in interference with overall function of the hand, and that the Veteran's occupational tasks would need to allow for limited grasping, pulling, writing, typing, and other tasks which would utilize his right hand and fingers. While these functions are still possible, and hence no loss of use is shown, they are more difficult to perform with the ankylosed right little finger. As such, a 10 percent rating is appropriate in light of the impairment of hand function from a single finger. Review of the schedular criteria also does not indicate another diagnostic code more analogous to the service-connected disability that would provide for a higher rating. Thus, a rating of 10 percent, but no higher, is warranted for residuals of right little finger fracture. ORDER An increased 10 percent evaluation, but no higher, for residuals of right little finger fracture is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs