Citation Nr: 20007567 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-11 791 DATE: January 29, 2020 ORDER Entitlement to a rating in excess of 10 percent for the service-connected partial amputation of the distal phalanx of the right middle finger with arthritis is denied. FINDING OF FACT The service-connected partial amputation of the distal phalanx of the Veteran’s right middle finger occurred at the distal phalanx joint. There is no evidence of amputation of this digit with metacarpal resection (more than one-half the bone lost). CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the service-connected partial amputation of the distal phalanx of the right middle finger have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5154, 5010-5226. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from July 1963 to October 1964. Entitlement to a rating in excess of 10 percent for the service-connected partial amputation of the distal phalanx of the right middle finger The Veteran asserts that a rating greater than the current evaluation of 10 percent is warranted for the partial amputation of the distal phalanx of his right middle (long) finger. The Veteran reports difficulty with his grip and pain. The RO granted service connection for the partial amputation of the distal phalanx of the right middle finger in the November 2003 rating decision under 38 C.F.R. § 4.71a, Diagnostic Code 5154. Under Diagnostic Code 5154 amputation of the long finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto is rated at 10 percent. Amputation with metacarpal resection (more than one-half the bone lost) warrants a 20 percent rating. 38 C.F.R. § 4.71a. The RO has since amended the Diagnostic Code assigned to the partial amputation of the distal right middle finger disability to 5010-5226. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Board has considered all potentially applicable Diagnostic Codes pertaining to this disability but finds that the most applicable Diagnostic Code is 5154, as the Veteran did require a partial amputation of his right long finger in-service. Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis) and Diagnostic Code 5010 (traumatic arthritis). Under Diagnostic Code 5226, a 10 percent rating (the only schedular rating under that code) is assigned for favorable or unfavorable ankylosis of the long finger. A Note to Code 5226 directs consideration whether to evaluate the finger disability as amputation. Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.5; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). At the outset, the Board notes that the Veteran’s service connected right middle (long) finger disability has been rated as 10 percent disabling under Diagnostic Codes 5010-5226. Diagnostic Code 5226 provides for a [sole] rating for ankylosis of the finger, whether favorable or unfavorable. Here, however, the Veteran is in receipt of the maximum schedular rating available under Diagnostic Code 5226 for ankylosis of the long finger. Following the note to Diagnostic Code 5226 to consider evaluating the finger disability as an amputation, the Board finds that a rating in excess of 10 percent is not warranted. Additionally, a rating in excess of 10 percent is not is warranted under Diagnostic Code 5010 as arthritis has not been diagnosed affecting two major joints. A September 2017 VA examination report shows that the Veteran was diagnosed with a distal phalanx of the right middle finger injury that eventually required a partial amputation. The examiner noted that arthritis was present in the finger. Flare-ups causing pain were reported affecting grasping, holding and lifting. Pain was noted to cause functional loss. The examiner noted that there were no gaps between the pad of thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. Repetitive use testing showed pain. Hand grips strength was noted as 5/5. No ankylosis of the long finger was noted. The examiner noted that the finger disability did not cause functional impairment that would be equally well served by an amputation with prosthesis. Regarding amputation, the examiner noted a right partial amputation of the distal phalanx of the middle finger. The examiner noted that the amputation was through the long phalanx or at the distal joint. The amputation was not shown at the proximal interphalangeal joint, or with metacarpal resection. Impact of the amputation was impairment to holding, lifting, and grasping. Upon review of the evidence of record, the Board finds that a 20 percent rating is not warranted under Diagnostic Code 5154. The Veteran’s amputation to his partial amputation of the right long finger is distal to the distal phalanx. The VA examination report of record specifically noted that the Veteran’s amputation was at the distal proximal joint. The record does not establish, and the Veteran does not allege, that his amputation occurred with metacarpal resection (more than one-half the bone lost). Moreover, the Board has considered the applicability of other potential diagnostic codes. The record does not establish, and the Veteran has not alleged, a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or extension limited by more than 30 degrees. The VA examiner found that there was no gap between the thumb pad and the fingers. Consideration of Diagnostic Code 5229 is therefore not warranted. In addition, ankylosis of the long finger is not shown, and there is no ankylosis or limitation of motion of other digits of the left hand, therefore Diagnostic Codes 5216-5228 and 5230 do not apply. Additionally, no VA examiners—or treating medical professionals—in this case indicated that the remaining function in the Veteran’s right long finger was not so reduced that he would be equally well served by amputation. Thus, the preponderance of the evidence is against a finding that a higher rating for the Veteran’s right middle fingertip amputation is warranted based on the criteria governing amputation of the long finger. 38 C.F.R. § 4.71a, Diagnostic Code 5154. In evaluating the Veteran’s current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has complained of pain and decreased grip strength, which he is competent to report. Jandreau, 492 F.3d 1372. However, the VA examiner found on objective testing that his grip strength was normal. As such, the Board finds that the VA medical opinions outweigh the Veteran’s statements regarding additional functional loss due to pain, weakness, fatigue, or other factors. 38 C.F.R. §§ 4.40, 4.45, 4. 59. The Board recognizes that the Veteran has a scar on this remaining digit. However, as there is no objective evidence shows that the Veteran’s scar is painful, unstable, or a total area greater than 39 square cm., a separate, compensable rating for his scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding that a rating in excess of 10 percent for the service-connected partial amputation of the distal phalanx of the Veteran’s right middle finger is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.