Citation Nr: 20003635 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-23 915 DATE: January 16, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left elbow disability. Entitlement to an initial 10 percent rating, but no higher, for right middle finger degenerative joint disease (DJD) is granted. Entitlement to an initial compensable rating for residual right middle finger scar is denied. REMANDED Entitlement to service connection for a left elbow disability is remanded. FINDINGS OF FACT 1. An October 2009 rating decision denied service connection for a left elbow disability (claimed as dislocated left elbow). The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the final October 2009 rating decision, namely the October 2019 Board hearing testimony, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left elbow disability. 3. Throughout the appeal period, the Veteran’s right middle finger DJD has been manifested by painful motion. 4. The Veteran’s residual right middle finger scar has not been associated with any pain, instability or loss of function during the appeal period. CONCLUSIONS OF LAW 1. The October 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a left elbow disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to an initial 10 percent rating, but no higher, for right middle finger DJD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5229-5010. 4. The criteria for entitlement to an initial compensable rating for residual right middle finger scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1973 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial 10 percent rating, but no higher, for right middle finger DJD is granted. 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). The Court of Appeals for Veterans Claims (Court) later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran’s right middle finger disability is currently rated as noncompensable pursuant to DCs 5229-5010. DC 5010 provides for rating traumatic arthritis as degenerative arthritis under DC 5003. DC 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. DC 5229 provides a maximum 10 percent rating for limitation of motion of the index or long finger with for a gap of one inch (2.5 centimeter) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a DC 5229. The current appeal period is from the effective date of service connection, or May 7, 2015. Here, the Board finds that higher 10 percent rating is warranted for the Veteran’s right middle finger disability, based on the Veteran’s competent and credible reports of painful motion, effective from the beginning of the appeal period, or May 7, 2015. 38 C.F.R. §§ 4.40, 4.45, 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion is entitled to at least the minimum compensable rating). Specifically, the Veteran has reported a pulling, painful sensation when stretching his middle finger as well as mild intermittent aching with excessively cold weather and/or overuse with excessive gripping. See Board Hearing Transcript (Tr.) at 3-4 and July 2015 VA examination report. DC 5229 provides for a maximum 10 percent schedular rating for limitation of motion of the long finger and, as such, a 10 percent rating, but no higher, is assigned. Additionally, the Board need not address whether higher or separate ratings are warranted under alternate diagnostic codes, as the Veteran indicated that a 10 percent rating for his right finger disability would satisfy his appeal in full. See Board Hearing Tr. at 7. 2. Entitlement to an initial compensable rating for residual right middle finger scar is denied. The Veteran’s residual right middle finger scar is rated is pursuant to DC 7805, which provides compensable ratings for other effects of scars not contemplated under the other DCs for rating scars, or DCs 7800, 7801, 7202 and 7804, and instructs to rate such effects under an appropriate diagnostic code. 38 C.F.R. § 4.118. Upon review of the totality of the record, the Board finds that a compensable rating is not warranted for the Veteran’s right middle finger scar at any point during the appeal period, as there is no evidence that the scar is associated with any functional impairments or limitations, and the Veteran does not assert otherwise. In this regard, the July 2015 VA examiner noted a 3.8 by 0.2 centimeter (cm) diagonally running well healed linear scar on the right hand, middle finger, proximal pad that was not tender or unstable with normal pigment and contour and with no functional impairment. Moreover, the Veteran testified that his right middle finger scar did was not painful and did not cause any discomfort. See Board Hearing Tr. at 4. The Board has considered whether higher ratings are warranted for the Veteran’s scar under alternate diagnostic codes. However, DCs 7800-7804 are inapplicable, as the scar is not located on the head, face, or neck, is not painful or unstable, and is not greater than 39 square cms (6 square inches). See July 2015 VA examination report. Therefore, a compensable rating is not available. REASONS FOR REMAND 3. Entitlement to service connection for a left elbow disability is remanded. Remand is necessary for an examination, as the Veteran’s testimony has triggered VA’s duty to assist. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his left elbow disability. (a) The examiner should diagnose all current left elbow disabilities. If no such disability is identified, the examiner must indicate whether the Veteran’s left elbow pain causes any functional impairment. (b) For any left elbow disability diagnosed or any functional impairment identified, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability/functional impairment had its onset in or is otherwise related to service, to include as a result of a conceded left elbow injury therein. In addressing this question, please concede that the Veteran fell onto his left elbow in Germany, resulting in a popping noise and swelling (see Board hearing Tr. at 7), and please discuss the Veteran’s assertions of continuous left elbow symptomatology since that time (see Board Hearing Tr. 9-10). A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to render an opinion without resorting to speculation, supporting rationale for that conclusion should be furnished. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.