Citation Nr: 20006339 Decision Date: 01/27/20 Archive Date: 01/24/20 DOCKET NO. 19-14 091 DATE: January 27, 2020 ORDER Entitlement to an increased compensable rating for left ring finger disability is denied. FINDINGS OF FACT 1. The symptoms attributable to the left ring finger injury are limitation of motion and/or painful motion. 2. The Veteran is already in receipt of the maximum rating for his left ring finger disability with no evidence that more nearly approximates ankylosis. CONCLUSION OF LAW The criteria for a compensable evaluation for a left ring finger disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to April 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an March 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the March 2019 RO found that a prior decision which failed to grant service connection for a left ring finger was clearly and unmistakably erroneous. Additionally, the RO established service connection with an evaluation of zero percent, effective January 2017 for the Veteran’s left ring finger disability. Increased Rating Disability ratings 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 Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The diagnostic codes pertaining to ankylosis or limitation of motion of single or multiple digits of the hand are found at 38 C.F.R. § 4.71a, DCs 5216 to 5230. The preamble to DCs 5216 to 5230 provides, in relevant part, that: (1) For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed from 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal (MCP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Table “Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand.” The Veteran’s left ring finger disability has been assigned a noncompensable rating since August 1985 under DC 5230. 38 C.F.R. § 4.71a. Under Diagnostic Code 5230, limitation of motion of the ring or little finger, 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. Id. Also relevant is DC 5227 which establishes a noncompensable (0 percent) rating for ankylosis, whether unfavorable or favorable, of the major extremity ring or little finger. Per the note following DC 5227, consideration is to be given to whether rating as amputation is warranted and to whether additional rating is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. For evaluation of ankylosis of the index, long, ring and little fingers, Note (3) preceding DC 5216 is relevant. Id. Rating is as amputation without metacarpal resection at the PIP joint or proximal thereto with ankylosis of both the MCP and PIP joints of a finger and either is in extension or full flexion or there is rotation or angulation of a bone. Note (3)(i). Rating is as unfavorable ankylosis even if each joint is in a favorable position if both the MCP and PIP joints of a finger are ankylosed. Note (3)(ii). Rating is as unfavorable ankylosis if the MCP joint or the PIP joint of a finger is ankylosed and there is a gap of more than two inches between the fingertip(s) and the proximal transverse crease of the palm with the finger(s) flexed to the extent possible. Note (3)(iii). Rating is as favorable ankylosis if the MCP or the PIP joint of a finger is ankylosis and this gap is two inches or less. Note (3)(iv). DC 5155 concerns amputation of the ring finger. A 10 percent rating is warranted for the major extremity if amputation is without metacarpal resection at the PIP joint or proximal thereto. The maximum 20 percent rating requires amputation with metacarpal resection (more than one half the bone lost) for the major extremity. Id. During the appeal period, the Veteran’s left ring finger disability was rated under Diagnostic Code 5230. Entitlement to a compensable rating for left ring finger is denied. The Veteran has asserted that his service-connected left ring finger disability warrants a higher evaluation than the noncompensable rating currently assigned. The Veteran requested a disability rating of ten to twenty percent for his left ring injury and stated that the residuals to his left finger injury have caused his hand to lock up and he states that he has lost control of his left hand. See Notice of Disagreement dated May 2018. The Veteran also requested that he be reevaluated by a medical doctor, not a chiropractor for the injury he sustained to his left ring finger. The Veteran stated that because of the surgery, nerves and tendons to that finger had to be repaired. Additionally, the Veteran asserted that as a result of the surgery, his hand and finger will freeze up (mostly in the winter) causing him to stop work until it stops. Lastly, the Veteran stated that the injury to the left ring finger is causing him pain more often and the circulation is not good in that hand and finger. See Form 9 dated April 2019. The Veteran was afforded a VA examination in June 2017 to evaluate his left ring finger disability. The examiner stated that the date of onset of the Veteran’s symptoms was in 1977 while stationed in Germany. The examiner noted that when the Veteran was returning from maneuvers, he was getting out of a high centered vehicle when his left ring finger was caught on a piece of metal, ripping the skin. Additionally, the examiner stated that surgery was performed on the finger and the Veteran was hospitalized for one week and placed on light duty for four weeks. The examiner noted that flare ups of the left hand have been described as cold weather causes an uncomfortable tender pain. It was also noted that the Veteran noticed stiffness and difficulty bending the left ring finger and had limited grip strength. The examiner stated that the Veteran had no ankylosis in the left hand. The Veteran is currently assigned a noncompensable evaluation for his left ring finger effective August 1985. Analysis As stated above, diagnostic code 5230 provides the assignment of a noncompensable disability rating for any limitation of motion of the ring finger. Thus, the Veteran’s left ring finger disability has been assigned the appropriate rating for limitation of motion. In making this determination, the Board notes that 38 C.F.R. § 4.59 provides that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. However, there is no compensable rating for limitation of motion of the ring finger. As explained by the United States Court of Appeals for Veterans Claims (CAVC) in Sowers v. McDonald, 27 Vet. App. 472, 480 (2016), “[r]eading § 4.59 in conjunction with [Diagnostic Code] 5230” would not result in a compensable rating, as “there is no minimum compensable rating available under [Diagnostic Code] 5230, that is, any level of disability warrants a [noncompensable] rating.” Hence, “[b]ecause no impairment of motion warrants a compensable rating under [Diagnostic Code] 5230, reading § 4.59 in conjunction with [Diagnostic Code] 5230, [the Veteran] is not entitled to a compensable rating under” this Diagnostic Code. Id. Therefore, a compensable rating is not warranted for loss of range of motion of the ring finger. The Board has reviewed other diagnostic codes to determine if the Veteran may be entitled to a compensable disability rating pursuant to other schedular criteria. As stated above, a note following DC 5227 allows for consideration as to whether an 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. The evidence, most notably the June 2017 examination opinion, is against a finding that the disability manifested functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The evidence demonstrates that the Veteran’s disability does show some limitation of motion, but again it is not compensable. The Board acknowledges the Veteran’s reports of pain in his left hand and his perceived issues of circulation however, the Board notes that there was no finding of degenerative arthritis in the Veteran’s left hand in the January 2017 examination. DC 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., DCs 5228 to 5230), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, DC 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion. 38 C.F.R. § 4.71a. Here, importantly, not only is the left ring finger not considered a major joint group, but arthritis has not been found in the Veteran’s fingers, or joints in the hand itself. Therefore, the weight of the evidence is against finding that the service-connected left ring finger disability warrants consideration for a rating under DC 5003. Id. The Board has noted and weighed the Veteran’s assertions. However, regardless of whether the Veteran has limitation of motion of the ring finger or has ankylosis, his finger disability would be assigned a noncompensable disability rating. As stated above, an increased rating of 10 percent is not warranted unless there is an amputation of the ring finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto. Absent such evidence, the assignment of a compensable disability rating for deformity of the left little finger, status-post avulsion fracture is not available. Moreover, the Board finds that another examination of the Veteran’s left finger disability is not warranted despite the Veteran’s request. In this case even if as the Veteran contends, the motion in his left ring figure has significantly decreased, it would still not warrant a compensable rating under the rating criteria. In point of fact, the Veteran does not appear to allege that his finger disorder has worsened, but that he wants an orthopedist to examine the finger. The Veteran has not explained why the prior examiner was not competent to evaluate his finger. In the absence of an allegation of worsening that could result in a higher rating, or a coherent explanation as to why the prior examination was inadequate, the Board finds that VA’s duty to assist does not extend to affording the Veteran another examination. In sum, the appeal for a compensable disability rating for the service-connected left ring finger disability must be denied. 38 C.F.R. §§ 4.3, 47, 4.71a. The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms such as pain because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the June 2017 VA examiner who examined the Veteran during the current appeal and who rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Accordingly, the Veteran’s left ring finger disability is most consistent with a noncompensable rating evaluation. Thus, Thus, the preponderance of the evidence is against the claim for entitlement to a rating in excess of zero percent for the Veteran’s left ring finger disability. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, Associate 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.