Citation Nr: 18157736 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-63 024 DATE: December 14, 2018 ORDER Entitlement to a compensable rating for deformity, right little finger with residual scar is denied. Entitlement to a separate 10 percent rating, but no higher, for symptoms analogous to amputation, for the deformity, right little finger with residual scar, is warranted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The symptoms of the Veteran's right little finger disability is manifested by noncompensable limitation of motion. 2. The symptoms of the Veteran's right little finger disability have interfered with the overall function of the hand. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the right little finger disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5227. 2. The criteria for a separate 10 percent rating, but no higher, for symptoms analogous to amputation of the right little finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.71a, DCs 5156, 5227. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran appointed California Department of Veterans Affairs as his representative. The Board recognizes this change in representation. I. Duty to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. This decision results in the 10 percent rating requested by the Veteran in the September 2016 notice of disagreement (NOD). Neither the Veteran, nor his representative have 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)." The claim is ready for appellate review. II. Deformity, right little finger with residual scar Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). With any form of arthritis, painful motion is an important factor. 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). The Veteran's right fifth finger is rated noncompensable under 38 C.F.R. § 4.71a, DC 5227. DC 5227 provides for a single noncompensable rating for ankylosis of the ring or little finger. A note following DC 5227 instructs that it should be considered whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. 38 C.F.R. § 4.71a, DC 5155. Briefly, the Board notes that service-connected right little finger disability includes an associated scar. As detailed below, the November 2015 clinical evaluation does not report the presence of a scar. The Veteran has not specifically reported right little finger pain associated with a scar. Further consideration of a separate scar rating is not warranted. 38 C.F.R. § 4.118, DC 7804. In his September 2015 claim for increase, the Veteran reported having right hand loss of motion. In November 2015, the Veteran had a VA examination. The examiner did not review the claims folder. The examiner diagnosed ankylosis of the right little finger. He noted that the fifth little finger had a cut injury history. The condition had worsened. The Veteran reported grip difficulty and sensory disturbances, described as hand numbness after a few hours. He was right hand dominant. He had flare-ups consisting of pain and numbness. Functional impairment was reported as an inability to extend the finger at times. Range of motion (ROM) testing of the right little finger showed partial motion loss in the metacarpophalangeal joint (MCP) and proximal interphalangeal joint (PIP). No movement was found for the right distal interphalangeal joint (DIP). Functional loss was described as limited fine manipulation. Pain was noted with finger extension. It was described as mild, sharp pain. There was no pain with use of hand. Left hand ROM was normal. The examiner noted functional loss from pain during repetitive use over time and flare-ups. The examiner assessed right hand functional impairment as less movement than normal. Grip strength was complete in both hands. No muscle atrophy was found. Ankylosis was found for right little finger PIP to 50 degrees with angulation of the bone. The examiner described the effect of this ankylosis as limited fine manipulation. No associated complications or scar was found. In his September 2016 notice of disagreement (NOD), the Veteran stated that his right little finger was inoperable and requested a 10 percent rating. In the December 2016 substantive appeal, the Veteran reported having unfavorable ankylosis of the right little finger. He asserted that this disability had not been properly evaluated. As explained below, the Board finds that overall function of the hand is affected by the right little finger disability and a separate 10 percent rating for symptoms analogous to amputation of the right little finger is warranted. 38 C.F.R. § 4.71a, DCs 5216, 5227, Note. A compensable rating is not available for ankylosis or motion loss under the currently assigned DC 5227. 38 C.F.R. § 4.71a, DCs 5227 and 5230. 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 for painful motion does not assist the Veteran in this case. See Sowers v. McDonald, 27 Vet. App 472 (2016). Nonetheless, a note following DC 5227 instructs the rater to consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. In this case, the November 2015 VA examiner noted overall right hand impairment from limited fine manipulation due to service-connected right little finger disability. The Veteran’s reports also imply that pain associated with right little finger disability interferes with the overall use of his right hand. See September 2016 NOD; December 2016 substantive appeal. The Board observes that in Stingley v. Shinseki, No. 10-2684, 2012 U.S. App. Vet. Claims (Mar. 6, 2012), the Court found that the Board failed to consider whether the aforementioned note necessitated an additional evaluation for interference with overall function of the hand where the Veteran had difficulty picking up and lifting objects, holding large or heavy objects, and performing daily tasks such as fastening buttons. Here, the VA examiner identified limited fine manipulation as impairment caused by the service-connected right little finger disability. It is reasonable to interpret this statement as functional impairment affecting the entire right hand. From the reasoning of Stingley, the Board finds that the Veteran's impairment results in interference with the overall function of his right hand. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The rating criteria do not appear to provide guidance on how to evaluate interference with the overall function of the hand as indicated in the note under DC 5227. The Board, however, finds that the impairment of the Veteran's right finger fifth disability is best evaluated, by analogy, as an amputation. Amputation of the little finger is rated under 38 C.F.R. § 4.71a, DC 5156. A rating of 10 percent is assigned for amputation of the dominant/non-dominant hands little finger without metacarpal resection, at proximal interphalangeal (PIP) joint or proximal thereto. A rating of 20 percent is assigned for amputation of the little finger with metacarpal resection and more than one-half of the bone lost. Given the above, the Board finds that a separate 10 percent rating is appropriate under DC 5156 as there is evidence that the Veteran has painful motion of his right little finger and has right hand impairment from limited ability to perform fine manipulation as noted by the VA examiner. A 20 percent rating is not warranted under DC 5156 as the right little finger MCP joint is not resected and retains some movement. A separate rating for limitation or amputation of the entire hand is not warranted as clinical evaluation of the hand shows that it was otherwise within normal limits. For the foregoing reasons, a separate 10 percent rating for right little finger disability by analogy to amputation is granted. In all other respects, the preponderance of the evidence is against the claim. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.   The Board has considered the Veteran's increased rating claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his increased rating claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel