Citation Nr: 18147400 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-35 536A DATE: November 5, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for right hand long finger deformity (claimed as 3rd digit deformed and disfigure of the 3rd digit), is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. FINDING OF FACT The Veteran’s right hand long finger deformity is manifested by a gap of less than one inch (2.5 cm), and pain. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right hand long finger deformity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 5229 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from March 1989 to January 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case was subsequently transferred to the VA RO in Roanoke, Virginia. Disability Evaluation – Right Hand Long Finger Deformity The Veteran has asserted that he should have a higher rating for his right hand long finger deformity as his symptoms are worse than those contemplated by the currently assigned rating. The Veteran’s right hand long finger deformity is rated under Diagnostic Code 5229. Under Diagnostic Code 5229, the maximum 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 fingers flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Veteran was afforded a VA examination for his right hand in September 2012. At that time, he reported his hand was swollen and painful. He reported he sprained his third digit of the right hand playing basketball. He reported being diagnosed with arthritis. The examiner noted that the Veteran’s fingers hurt when typing. Upon range of motion testing, there was no limitation of motion or evidence of painful motion for any fingers or thumbs found. Upon repetitive use testing, no additional limitation of motion for any fingers was found. There was no gap between the thumb pad and fingers tested. There was no gap between any fingertips and the proximal transverse crease of the palm. There was no limitation of extension for the index finger or long finger shown. The examiner noted there was no functional loss or functional impairment of any of the fingers or thumbs. The examiner found pain on palpation for joints or soft tissues of the right hand, including thumbs and fingers. Muscle strength testing was normal. There was no ankylosis of the thumb and/or fingers. The examiner diagnosed deformity of the right middle finger. In April 2016, the Veteran was afforded another VA examination for his right hand. At this time, he reported he jammed his finger at work and the finger was deformed. He stated he was diagnosed with arthritis in the finger, and that the condition had worsened. He endorsed flare-ups of the right hand that manifested in pain in the finger at night or during cold weather. He stated he did not have flare-ups of the left hand. He reported his job required typing, and that the condition interfered with his typing at times. Upon physical examination, there was no gap shown between the pad of the thumb and fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner found abnormal range of motion. His middle finger had range of motions as follows: metacarpal joint to 90 degrees flexion and 0 degrees extension; proximal interphalangeal joint to 100 degrees flexion and 0 degrees extension; and distal interphalangeal joint to 70 degrees flexion and 0 degrees extension. Upon repetitive use testing, there was no additional functional loss. The examiner did not perform repetitive use testing. The examiner noted that the Veteran had less movement than normal due to deformity. Muscle strength testing was normal. There was no ankylosis of the right hand. Following the April 2016 VA examination, the RO issued a rating increase for the right hand to 10 percent disabling, effective February 1, 2013. The date was retroactive back to the Veteran’s initial filing date in February 2013. Based on the evidence above, the Board finds that the Veteran’s right hand long finger deformity reflects symptomatology more nearly approximated by a 10 percent rating. Specifically, the September 2012 and April 2016 VA examinations recorded no gap between the long finger and the proximal transverse crease of the hand. The VA examinations showed the Veteran’s long finger deformity was manifested by pain. The currently assigned rating contemplates the Veteran’s symptomatology. The Board notes again that this is the highest rating possible under the applicable diagnostic codes based on limitation of motion. As this is the maximum schedular rating, the Board notes that regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board recognizes the Veteran’s contentions that his symptoms warrant a higher rating. He is competent to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in the instant case, there are no higher ratings under the applicable code. Further, the Board has considered other diagnostic codes, however for degenerative arthritis the Diagnostic Code specifically states the limitation of motions is evaluated under the applicable joint code. Diagnostic Code 5003 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial rating in excess of 10 percent disabling for the Veteran’s right hand long finger deformity; per the applicable regulatory guidance. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Disability Evaluations – Bilateral Knees The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most recently afforded a VA examination for his bilateral knee disabilities in April 2016. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected bilateral knee disabilities. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bilateral knee disabilities. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In assessing the severity of the bilateral knee disabilities, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing. 3. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel