Citation Nr: 18156325 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-16 472 DATE: December 7, 2018 ORDER Entitlement to a compensable rating for left fifth finger residuals, status post fracture, to include on an extraschedular basis is denied. FINDING OF FACT Throughout the appeal period, the Veteran has had pain and fatigability in his left hand and reduced range of motion in his fifth finger, but has retained full grip strength and general function in the left hand; the symptomatology shown does not result in an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards CONCLUSION OF LAW The criteria for entitlement to a compensable rating for left fifth finger residuals, status post fracture, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.40, 4.45(f), 4.59, 4.7, 4.71a, Diagnostic Codes 5216-5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1974 to July 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2016. The transcript is of record. The matter was previously before the Board in July 2017, at which time it was remanded for additional development. It has been returned to the Board for appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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).. 1. Entitlement to a compensable rating for left fifth finger residuals, status post fracture, to include on an extraschedular basis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board notes that the rating criteria that are applicable to the Veteran’s right little finger disability are identical for the major (dominant) extremity and the minor (non-dominant) extremity. Diagnostic Code 5227 provides for a noncompensable rating for ankylosis of the ring of little finger (fourth or fifth finger), whether favorable or unfavorable, and whether affecting the major or minor (dominant or non-dominant) hand. Under Diagnostic Code 5230, limitation of motion of the ring or little finger, any limitation of motion is noncompensable. 38 C.F.R. § 4.71a. The Veteran’s left fifth finger disability has been rated as noncompensable under Diagnostic Code 5227. He contends that his disability has been so severe as to warrant extraschedular consideration. Pursuant to § 3.321(b)(1), the Director of Compensation and Pension, is authorized to approve an extraschedular evaluation if 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). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008); aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability and the established criteria found in the rating schedule for that disability to determine whether the disability picture is adequately contemplated by the rating schedule. Id. In the second step of the inquiry, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as ‘governing norms.’ Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the rating schedule is inadequate to evaluate the claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the third step is to refer the case to the Under Secretary for Benefits or the Director of C&P Service for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. At his November 2016 Board hearing, the Veteran testified that his disability of the left little finger caused him difficulty in flexing all the fingers of his left hand, causing pain at an intensity of 8/10. He acknowledged he does not experience significant limitation of motion of the little finger, but noted it periodically “locks up,” and can cause grip problems due to pain. The Veteran also acknowledged he remains able to drive and to use the left hand, but that occasional numbness, along with pain, often cause him to favor his right hand. The Board notes the Veteran is right handed. The Veteran was afforded a VA examination to explore the nature and manifestations of his disability in January 2011. The VA examiner noted objective evidence of pain in the finger on testing, along with limitation of motion, but no additional loss of motion after repeated bouts of testing. There was ankylosis in the left little finger, but none in any other finger. Critically, testing revealed no decrease in the strength or dexterity of the left hand. The examiner concluded the Veteran’s disability would be expected to exert a moderate effect on daily chores and activities. Private treatment records from October 2016 show symptoms including swelling, catching or locking of the left little finger, and popping and clicking of that finger. However, treatment notes from this period also show full 5/5 grip strength in the left hand, as well as negative Tinel’s sign, negative Phalen’s test, negative Finkelstein’s test, and negative Allen’s test. A second VA examination was conducted in November 2018. That examiner noted symptoms including pain and decreased range of motion, indicating the Veteran appeared to struggle to grip objects firmly in the left hand. The examiner concluded that the pain on use noted on examination would be expected to cause functional loss. However, the examiner also noted that the Veteran’s disability did not affect multiple joints in the same hand. Finally, the Veteran acknowledged that he had lost between 0 and 1 week of work over the course of the past year due to his finger disability. The Board notes that the Veteran works at a paper mill, and has maintained full-time employment throughout the current appeal period. He does not appear to have missed significant stretches of work due to his disability. Moreover, no treating or examining provider has indicated the disability would be expected to exert more than a moderate effect on his ability to perform regular daily chores and activities. There is no evidence of flareups requiring emergency medical care or periods of hospitalization, nor is there actual evidence indicating any profound modification or excision of activities of daily living in the Veteran’s case. As noted above, the Veteran is already in receipt of the maximum noncompensable rating permitted for his disability. As there is no objective evidence that digits other than the fifth finger of the left hand are involved, the Board does not find application of any Diagnostic Code other than 5227 or 5230 appropriate in this case. As for extraschedular consideration, the Veteran’s disability has not presented such an unusual disability picture as to render application of the regular rating criteria impractical. Indeed, the Veteran has remained capable of full-time employment with very little missed time from work, and has not required hospitalization or frequent emergency medical care for his disability. As such, the Board must deny the appeal for an increased rating, to include on an extraschedular basis. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel