Citation Nr: 18157941 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 14-42 101 DATE: December 13, 2018 ORDER An initial rating in excess of zero percent for residuals of broken right finger is denied.   FINDING OF FACTS The residuals of the Veteran’s broken right ring finger cause painful limitation of motion, stiffness and weakness. CONCLUSION OF LAW The criteria for an initial compensable evaluation for residuals of a broken right ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to February 1980. The case is on appeal from an April 2014 rating decision. In a November 2014 VA Form 9, the Veteran indicated that he has arthritis in his entire right hand as a result of the residuals of his right ring finger injury. This informal claim preceded the changes to the regulations requiring claims be filed on a standard VA form. Thus, this claim of service connection is referred to the RO for proper action. 38 C.F.R. § 19.9(b). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   An initial compensable rating for residuals of broken right finger. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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 after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The VA evaluates limitations of motion of individual digits under the General Rating Formula provided in 38 C.F.R. §4.71(a). Diagnostic Code (DC) 5230 set forth a non-compensable maximum rating of 0 percent for any limitation of motion of the ring or little finger. The Court of Appeals for Veterans Claims (CAVC) have further stated that DC 5230 indicates that there is no reduction in earning capacity from a right ring finger disability, irrespective of impairment of motion. Sowers v. McDonald, 27 Vet. App. 472 (2016). DC 5230 provides for a noncompensable rating for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a Analysis The Veteran contends that he is entitled to an increased rating of 10 percent for his residuals of a broken right ring finger. Specifically, in the November 2014 substantive appeal, the Veteran indicated that he failed to explain to the VA examiner the degree of painful motion, functional loss, weakness to the joints of the right hand due to the injury to the right ring finger. He also asserts that his ring finger is stiff and painful most of the time, precluding him from using his right hand for work, normally due to arthritis and the injury to the right ring finger. As per an October 2018 brief, the Veteran’s representative stated that a favorable ankylosis involving the long and ring finger is noted and contented. It further states that 38 C.F.R. §4.59 allows consideration for functional loss due to painful motion for which the Veteran’s residuals of a right ring finger disability must be rated at least the minimum compensable rating for a joint, DC 5230. A review of the Veteran’s VA treatment records reflects that in September 2013, x-rays for his right hand were ordered. The radiographies reflected intact bony structures. His joint articulations appeared anatomic. Soft tissue structures were unremarkable, and as visualized, “carpal structures demonstrated no focal abnormality with anatomic articulation of the distal radius and ulna.” The examiner’s impression was recorded as “right hand within normal limits.” The Veteran was afforded a VA examination in April 2014. He reported that he suffers from pain in his right ring finger, especially during cold months. He also reported that he feels pain when he grips something hard. The VA examiner noted that the Veteran’s right ring finger was weak and painful on movement. The examiner further indicated that his right hand’s muscle strength at grip was four out of five (4/5), compared to his left hand, which showed a muscle strength at grip of five out of five (5/5). The examination reflects that no ankylosis, limitation of motion of other digits, or interference with the overall function of the hand were noted. The Board notes an addendum to the VA exam was submitted in May 2014. The examiner added that “the patient did note during the exam that he had flare ups during the winter months but said that it did not limit his range of motion anymore during the flare ups, but the pain was worse.” The examiner further indicated that, as per the Veteran’s statements, his functional ability is not limited during flare ups anymore. He also noted that there was not an impairment of an extremity such that no effective function remains other than that which would be equally served by an amputation with prosthesis. Furthermore, the examiner added that the Veteran’s finger conditions do not have an impact in his ability to work. In light of the lay and medical evidence, the Board finds that the Veteran’s right finger fracture residuals result in functional loss of painful limitation of motion, stiffness and weakness. However, any level of limitation of motion of the right little finger results in a noncompensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the ring and little finger). The United States Court of Appeals for Veterans Claims held in Sowers that because DC 5230 provided no minimum compensable rating, this trumped the general intent of section 4.59 to account for actually painful joints. This is directly applicable as DC 5230 is the most appropriate DC for the Veteran’s disability, and it does not provide for any minimum compensable rating. Thus, an initial compensable rating is not warranted on this basis. The Board does not find that the evidence shows ankylosis of the right ring finger. The VA examiner expressly found no ankylosis and the Veteran retains at least some motion of the finger. Thus, DC 5227 for evaluating ankylosis of the ring finger is not for application. In any case, ankylosis of a ring finger also results in a zero percent rating. A compensable rating is warranted only when there is more severe impairment such as amputation or multiple fingers involved, which is not the case here. (Continued on the next page)   In sum, as the preponderance of the evidence is against a compensable rating, the benefit of the doubt rule does not apply, and an initial compensable rating for residuals of the Veteran’s broken right ring finger is not warranted. See 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel