Citation Nr: 1805855 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-18 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable rating for laceration of the right middle and ring fingers. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1963 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2014, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In February 2016, VA notified the Veteran that he was entitled to another hearing in light of the fact that the VLJ who had conducted his hearing was no longer employed by the Board. See 38 U.S.C. § 7107(c). In correspondence received April 2016, the Veteran requested another hearing. In September 2017, the Veteran testified before the undersigned VLJ at a video conference hearing. A transcript of the hearing has been associated with the claims file. This claim was previously before the Board in October 2014, at which time it was remanded for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDING OF FACT The Veteran's laceration of the right middle and ring fingers has been manifested by painful motion, loss of range of motion, functional loss, weakness, and fatigability. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for laceration of the right middle and ring fingers have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Pursuant to the Veteran's Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by a letter dated September 2005. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C § 5103A; 38 C.F.R. § 3.159(c). The duty to assist the Veteran in the development of his claim has been met. All potentially relevant evidence necessary to adjudicate the claim has been identified and obtained, including the Veteran's service treatment records, personnel records, private treatment records, and VA medical records. The Veteran has also been afforded a VA medical examination, most recently in October 2014, in connection with his claim. In a November 2015 appellant brief, the Veteran's representative argued that the October 2014 examination "is too old to adequately evaluate the disability of the right middle and right fingers" and requested the Board to remand for a new examination in the absence of a full grant of benefits. The Board notes that the "mere passage of time" between a prior VA medical examination and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide a veteran with a new, contemporaneous medical examination. Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). Neither the representative nor the Veteran contends, and the record does not otherwise suggest, that the condition has worsened since the October 2014 examination. Absent any other evidence showing the examination was inadequate for rating purposes, the Board finds an additional examination unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Entitlement to a Compensable Rating Legal Criteria Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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, 204-07 (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. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca, 8 Vet. App. at 206. In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Id. at 41. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. at 37. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where a claimant has a full range of motion with pain, or a noncompensable limitation of motion that is accompanied by pain, a 10 percent rating may be appropriate. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); see also Mitchell, 25 Vet. App. at 39. Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton, 25 Vet. App. at 5. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Factual Background and Analysis The Veteran is currently in receipt of a noncompensable rating for his service-connected laceration of the right middle and ring fingers. He contends that he should receive a compensable rating because he experiences constant pain and aching in his fingers, with pain running up his hand and into his arm. The Veteran regularly takes pain medication for the pain in his fingers. He reports having difficulty straightening his fingers, picking up objects, and gripping things, such as a steering wheel. He has stated that he must use his non-dominant left hand more often to compensate for the limitations of his right hand. The Veteran's disability is rated under Diagnostic Code (DC) 5229, which contemplates limitation of motion of the affected digits. Additionally, he is right hand dominant; thus, it is considered his major extremity for rating purposes. According to the rating criteria for Diagnostic Code 5229, a noncompensable rating is warranted for a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and with extension limited by no more than 30 degrees. A 10 percent disability rating is warranted for a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. Ten percent is the maximum schedular rating permitted under Diagnostic Code 5229. See 38 C.F.R. § 4.71a, DC 5229 The Veteran was afforded a VA examination in May 2007. The Veteran reported that he had joint pain and occasional stiffness in his fingers, as well as decreased grip strength. He was taking nonsteroidal anti-inflammatory medication for the joint pain in his hands. On examination, the examiner found that the Veteran had full range of motion of the distal interphalangeal joints of all of the index, middle, ring, and small fingers. He had some decreased flexion from 0 to 30 degrees of the proximal interphalangeal joint of the index, middle, ring, and small fingers. He had full flexion at the metacarpophalangeal joint of the index, middle, ring, and small fingers. He had some questionable loss of full extension at the distal interphalangeal joints of the index, middle, ring, and small fingers. He had full passive motion on both extension and flexion of the distal interphalangeal joints, proximal interphalangeal joints, and metacarpophalangeal joints of the index, middle, ring and small fingers. Repetitive motion did not cause any fatigue or incoordination. The Veteran did not describe any flare-ups of increased pain or disability in his hand. The examiner remarked that when the Veteran was first introduced, he had "very good, powerful grip strength," however, in the examiner's opinion, "he put forth little or no effort on motor examination of any of the fingers of the right hand." The examiner concluded that there had been no change, or increase in severity, of the Veteran's service-connected laceration of the right middle and ring fingers. The Veteran testified in the July 2014 Board hearing that he experiences aching in his fingers, which affects his ability to grip the steering wheel, grasp a pen and write, use tools, and complete yard work. He reported that the pain increases with cold weather. Pursuant to the October 2014 Board remand, the Veteran was afforded a new VA examination in October 2014. The Veteran reported that since injuring his right middle and ring fingers in-service, he has experienced reduced range of motion in his fingers, and occasional pain. He described the pain as aching, which is worsened by cold weather. On examination, the Veteran reported flare-up symptoms of increased pain and stiffness that occur every day and impact his ability to perform routine activities, such as grasping a cup or mowing the lawn. Range of motion measurements found limitation of motion or evidence of painful motion for the right long (middle) and ring fingers. Finger flexion testing indicated a gap of less than one inch between the fingertips and the crease of the palm when attempting to touch the palm with the fingertips. Finger extension was limited by no more than 30 degrees, with objective evidence of painful motion. The examiner reported functional loss and additional limitation in range of motion after repetitive-use manifested by less movement than usual, weakened movement, excess fatigability, and pain on movement. Pain, weakness, and fatigability significantly limited functional ability during flare-ups or repetitive use with an additional range of motion loss of 5 to 10 degrees. There was no evidence of ankylosis, arthritis, painful or unstable scarring, or need for amputation. The Veteran had the opportunity to testify at another Board hearing in September 2017. He reported that he has difficulty grasping and firmly holding objects, and cannot fully extend his right middle and ring fingers. He said that he experiences pain, "every now and then" in the joints of his fingers, which he treats with over-the-counter pain medication. Based on a thorough review of the evidence of record, the Board finds that a compensable rating under Diagnostic Code 5229 is not warranted. The medical evidence of record does not reveal a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. Accordingly, the schedular criteria for a 10 percent rating are not met. However, the Board has determined that a 10 percent rating is warranted when taking into consideration the Veteran's functional loss due to painful motion, decreased range of motion, weakness, and fatigability. As noted above, the intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, when rating disabilities of the musculoskeletal system, VA must consider whether a higher rating is warranted to account for functional loss due to pain, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. The Veteran has consistently described experiencing pain and stiffness in his middle and ring fingers, as well as his difficulties gripping objects and carrying out routine activities due to his disability. During the October 2014 VA examination, the Veteran described additional functional impairment during flare-ups due to loss of range of motion, painful motion, weakened movement, and excess fatigability. Additional range of motion loss by the affected digits due to pain on repetitive use was estimated to be 5 to 10 degrees. Given the Veteran's consistent reports of functional impairment due to pain, as well as the October 2014 clinical findings, the Board concludes that the Veteran's laceration of the right middle and ring fingers has been manifested by painful motion, range of motion loss, weakness, and fatigability analogous in functional impairment to extension limited by more than 30 degrees or a gap of one inch or more between the fingertip and the proximal transverse crease of the palm. Accordingly, considering the intent of the Rating Schedule as set forth in 38 C.F.R. § 4.59, and extending the benefit of the doubt to the Veteran, a rating of 10 percent is warranted for the Veteran's service-connected finger disability, based on functional loss due to pain. See 38 C.F.R. §§ 4.59, 4.71a, DC 5229; DeLuca, 8 Vet. App. at 202; see also Mitchell, 25 Vet. App. at 32. The increase to 10 percent for the Veteran's service-connected disability is the maximum schedular rating permitted under Diagnostic Code 5229; accordingly, no higher rating is for consideration. A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). The Board has also considered whether a higher rating may be available under alternative diagnostic codes. Currently, a rating in excess of 10 percent is not warranted as the Veteran is in receipt of the maximum rating for limited motion of his middle and ring fingers. See 38 C.F.R. § 4.71a, DC 5229. Ratings in excess of 10 percent are provided by Diagnostic Codes 5224 and 5228; however these provisions pertain to ankylosis of the thumb and limitation of motion of the thumb, respectively. In this case, the Veteran is not shown to have any impairment of the thumb, nor is he service-connected for any thumb impairment. Thus, Diagnostic Codes 5224 and 5228 are not for application. Likewise, there is no evidence of any impairment of multiple digits stemming from the Veteran's service-connected disability; on examination, all movements of the other digits were fully normal, with no ankylosis shown. Hence, the diagnostic codes that provide evaluations in excess of 10 percent for limitation of motion or ankylosis of multiple fingers are not for application. See 38 C.F.R. § 4.71a, DCs 5216-5223. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the assignment of a 10 percent rating, but no higher, for laceration of the right middle and ring fingers, is warranted, based on functional loss due to pain. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating of 10 percent, but no higher, for laceration of the right middle and ring fingers is granted. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs