Citation Nr: 20005684 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-61 562 DATE: January 23, 2020 ORDER Entitlement to an initial compensable rating for right hand disability, status-post index finger laceration with scar, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s right index finger disability was not shown to be manifest by a gap one inch (2.5cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or by extension limited by more than 30 degrees. 2. The Veteran has a right index finger scar that does not limit motion or function of the joint; nor is the scar painful or unstable. CONCLUSION OF LAW The criteria for an initial compensable rating for right hand disability, status-post index finger laceration with scar have, not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5229; 38 C.F.R. § 4.118, Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1990 to November 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, this matter was before the Board when it was remanded for further development. 1. Entitlement to an initial compensable rating for right hand disability status post index finger laceration with scar Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The Veteran asserts that he is entitled to an initial compensable evaluation for his right hand/index finger disability. The RO has evaluated the Veteran’s disability as noncompensable under 38 C.F.R. § 4.71a, Code 5229. Under Diagnostic Code 5229 (limitation of motion of the index or long finger), a noncompensable rating is warranted where there is limitation of motion with a gap of less than 1 inch (2.5 centimeters (cm)) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent rating is warranted when there is limitation of motion with a gap of 1 inch (2.5 cm) 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. The Veteran was afforded a VA examination of his right index finger in February 2015. He reported that he experiences daily pain in right index finger. He reported that during flare-ups he experiences pain and weakness with heavy work. On examination, the Veteran had painful limitation of motion of his right index finger. There was no gap between the thumb pad and the fingers. Regarding flexion, there was a gap of less than one inch (2.5 centimeters) between the right index fingertip and the proximal transverse crease of the palm. There was no limitation of extension for the right index finger. The Veteran was able to perform repetitive use testing with no additional limitation of motion. Factors of functional loss in the right index finger included less movement than normal, weakened movement, excess fatigability, pain on movement, and deformity. The Veteran’s right index finger impacted his ability to work in that he would have trouble difficulty with heavy lifting, typing, or grasping such as clerical duties or stocking items. Per the December 2018 Board remand, the Veteran was afforded a VA examination in September 2019. Physical examination revealed right index finger range of motion was unremarkable. The VA examiner indicated that there was no flare-up during the examination and stated with evaluation of the history, current complaints, and review of the medical records have no basis to offer additional losses of function or movement when it comes to flare ups. The Veteran reported increased pain with lifting heavy objects. X-rays of the frontal, lateral and oblique views of the right hand are provided without the benefit of previous exam for comparison. There is, however, no acute fracture or displacement identified. The bony trabecular pattern is grossly intact. The imaged soft tissues are within normal limits. There is no acute injury identified at the right hand. Persistent flexion deformity little finger PIP joint. Scattered degenerative changes are most pronounced at the little finger PIP joint as well. Based on the foregoing, the Board finds that an initial compensable rating for the right index finger based on limitation of motion is not warranted. The Veteran is shown to have a gap of less than one inch between the tips of the fingers and there was no limitation of extension. These symptoms more closely approximate the noncompensable rating for limitation of motion for the right index finger. 38 C.F.R. § 4.71(a), Code 5229. The Board considered whether a higher disability rating could be assigned under a different diagnostic code; however, the only other codes for rating the index or long fingers are for ankylosis or amputation of those fingers, neither of which is warranted in this case, as there is no evidence that the Veteran has been diagnosed with ankylosis or had an amputation of any finger or that limitation of motion of the right index finger is so severe as to approximate ankylosis or amputation. The Veteran’s right index disability also includes a scar. Thus, the Board will consider whether a separate compensable rating is warranted for the right index scar. Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars are evaluated under diagnostic codes 7800, 7801, 7802, and 7804. Any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code. Based on this body of evidence, the Board finds that a noncompensable rating is warranted under Diagnostic Code 7805 because the right index scar does not show limitation of motion or function. The Board has considered whether there is any basis for providing a compensable rating, when considering Diagnostic Code 7800-7805. In this case, the Veteran has not provided a specific contention for a compensable rating and the Board cannot find such a basis. The evidence does not show that the scar is of a size to warrant a compensable rating, nor does the evidence indicate that the scar is painful or unstable. In the September 2019 VA examination, the scar was not shown to be painful or unstable and the Veteran has not countered these findings. The medical and lay evidence does provide a basis for a compensable rating under other criteria. For these reasons, the Board finds that a compensable rating is not warranted. Accordingly, entitlement to an initial compensable disability evaluation for right finger laceration with scar must be denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, Counsel 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.