Citation Nr: 18124239 Decision Date: 08/06/18 Archive Date: 08/06/18 DOCKET NO. 15-30 215 DATE: August 6, 2018 ORDER A compensable evaluation of the residuals of a fractured right little finger metacarpal bone is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The residuals of a fractured right little finger metacarpal bone have been manifested by pain, loss of range of motion, weakness, and deformity, however, functional use of the right little finger is retained, and the right little finger fracture residuals have not more nearly approximated amputation of the little finger. CONCLUSION OF LAW The criteria for a compensable evaluation of the residuals of a fractured right little finger metacarpal bone have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5010-5230 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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). Additional evidence has been associated with the claims file since the last RO adjudication in July 2015. This evidence is either duplicative of the evidence already of record, or it is not pertinent to the issues on appeal. Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits. 1. A compensable evaluation of the residuals of a fractured right little finger metacarpal bone. The Veteran seeks a compensable disability rating for his service-connected right little (or fifth) finger disorder. His claim for an increase in the evaluation was received in April 2013. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the appeal period, the disorder was rated under Diagnostic Code (DC) 5010-5230. It was previously rated under Diagnostic Code 5299-5227. Hyphenated Diagnostic Codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Here, the rating under Diagnostic Code 5010, for traumatic arthritis, requires the additional limitation of motion Diagnostic Code 5230. Specifically, as directed by DC 5010, arthritis, due to trauma, substantiated by X-ray findings, is to be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. In turn, arthritis, degenerative, is rated under DC 5003. Id. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved (DC 5200 etc.). Id. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. In the absence of limitation of motion, ratings are awarded if there is involvement of 2 or more major joints or 2 or more minor joint groups. Id. The fingers are considered minor joints. See 38 C.F.R. § 4.45 (f). In this case, only one finger was injured and is involved in this service-connected disability. Therefore, only one minor joint is affected. Accordingly, under DC 5003, a compensable evaluation is not warranted. Turning to the Diagnostic Code for limitation of motion for the specific joint involved, under DC 5230, a noncompensable (0 percent) disability rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5230. The rating schedule states that, as applicable to the ring finger, the metacarpophalangeal joint (MCP) has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of zero to 100 degrees of flexion and the distal interphalangeal joint (DIP) has a range of motion of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a (2017). DC 5227 (Ring or little finger, ankylosis of) is a potentially alternative DC. Under DC 5227, a noncompensable (0 percent) disability rating is assigned for unfavorable or favorable ankylosis of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5227. A note to 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 overall function of the hand. Id. With respect to amputation, under DC 5155, disability ratings are assigned for amputation of the ring finger. 38 C.F.R. § 4.71a, DC 5155. Turning to the evidence of record, the Veteran underwent a VA hand and finger disorders examination in September 2013. The examiner noted that the Veteran had two disorders of the hand or fingers unrelated to the service-connected fifth metacarpal fracture residuals disorder. The other hand disorders are listed as: reflex sympathetic dystrophy with pain and sensitivity of the right hand, most likely related to a stroke in 2009; and degenerative joint disease of some joints of the right hand. However, arthritis was not noted for the 5th finger. The examiner described a slight deformity of right 5th metacarpal that formed upon healing of the service-connected fracture and has remained since then. The examiner stated that the Veteran is right handed and in the past, he has been able to use his right hand for all activities of daily living and has been able to work as a pipefitter for thirty years. The examiner stated that, currently, the Veteran has sensitivity and pain over his right hand that he seems to have developed after his stoke in 2009, and that it appears to be reflex sympathetic dystrophy. Because of this condition, the examiner stated, the Veteran has difficulty in the use of the right hand; however, he is able to use if for light tasks. According to the examiner, the Veteran is independent in self-care. The examiner reported that the Veteran has been using a right hand splint off and on for the last 5 months for relief of pain. The examiner found that passive range of motion of all joints of the fingers of the right hand was normal, but all such motions were painful. There was no muscle atrophy of intrinsic muscles of right hand or of the right forearm. Due to pain and sensitivity, the Veteran is not able to use right hand with significant force. Based on the evidence of record, the Board finds that a compensable evaluation for the service-connected residuals of the right little finger are not warranted. The rating schedule intends to represent “the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1. Under Diagnostic Code 5230, a 0 percent rating “for ‘any limitation of motion’ indicates that there is no reduction in earning capacity..., irrespective of impairment of motion.” Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). Under this code, then, the Veteran cannot recover for any limitation of motion. Unfortunately, the Veteran also cannot be compensated for painful motion under Diagnostic Code 5230. For a painful joint, a veteran can be awarded at least the minimum compensable rating. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (applying § 4.59 in non-arthritis contexts). But a higher rating for pain is not available under Diagnostic Code 5230 because there is no minimal compensable rating. See Sowers, 27 Vet. App. at 480 (“Reading § 4.59 in conjunction with [Diagnostic Code] 5230, [the veteran] is not entitled to a compensable rating under this [code].”). For these reasons, the Veteran is not entitled to a compensable rating under Diagnostic Code 5230. The Board also finds that the Veteran’s right little finger fracture residuals have not met or more nearly approximated amputation of the little finger with or without metacarpal resection, which is required for a compensable rating under DC 5156. The record shows no evidence of amputation or symptoms that would warrant assigning a rating based on amputation that can be attributed to the service-connected right fifth finger fracture residuals. The VA examination shows the finger is intact with normal passive range of motion. The dysfunction and pain the Veteran has experienced, according to the most probative evidence, is due to other joint arthritis of that hand and the residuals of the 2009 stroke, which are not service-connected. The VA examiner specifically found that there was not functional impairment such that no effective function remained than that which would be equally well served by amputation. In short, there has been no finding or report of impairment of the left little finger that would approximate amputation or ankylosis of the finger. In an April 2013 statement, the Veteran asserted that he is unable to use his right hand. As discussed above, the most probative medical evidence of record shows that this is not due to his service-connected 5th finger disability. Arthritis was noted in the hand and other fingers at the Veteran’s VA examination, but not the 5th finger. March 2013 imaging studies show that there is “…a curvature to fifth metacarpal which may pe related to a prior boxer’s fracture.” Arthritis was specifically found in the Veteran’s wrist, middle finger, and thumb. However, it was not found in the 5th finger. Because arthritis is not present in the 5th finger, a compensable rating cannot be provided under DC 5003. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was raised by the record. The Veteran stated he has been unable to work as a pipefitter due to his right little finger fracture residuals. See August 2015 VA Form 9. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation. Id. As a result, additional notice and development is appropriate. Specifically, the Veteran should be provided notice on how to substantiate a claim for a TDIU, be afforded the opportunity to submit additional evidence and argument (to include employment information), and the claim should be considered by the AOJ. The matter is REMANDED for the following action: 1. Send the Veteran notice appropriate for a claim for a TDIU. Ask the Veteran to identify all outstanding records relevant to the claim for unemployability. All identified VA records should be added to the claims file. 2. Undertake additional development of the TDIU claim, such as providing the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 3. After the foregoing is complete, send the Veteran and his representative a supplemental statement of the case that addresses the issue of a TDIU. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rocktashel, Anne