Citation Nr: 20021245 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-36 505 DATE: March 25, 2020 ORDER Entitlement to an initial compensable rating for deformity of the left ring finger PIP joint (a left ring finger disability) is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for left shoulder strain is remanded. Entitlement to a rating in excess of 10 percent from January 5, 2017 to November 14, 2017, and in excess of 20 percent from that date, for a low back disability, diagnosed as lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability, diagnosed as patellar tilt (left knee disability) is remanded. Entitlement to an initial rating in excess of 10 percent for right knee strain is remanded. FINDING OF FACT During the period on appeal, the veteran’s left ring finger disability has been characterized by pain, limited range of motion, diminished grip, and immobility during cold weather. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for a left ring finger disability have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2011 to July 2011, and from January 2012 to November 2012. The undersigned Veterans Law Judge presided over a Board hearing in January 2020. A transcript of this hearing is of record. Entitlement to an initial compensable rating for a left ring finger disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 115; 38 C.F.R. Part 4. When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Per an August 2017 Rating Decision, the Veteran is in receipt of a noncompensable rating for his left (non-dominant) ring finger, under 38 C.F.R. § 4.17a, DC 5230, the maximum schedular evaluation allowed under this DC. He claims entitlement to a higher rating. After review of the evidence, the Board finds the preponderance of the evidence is against a compensable rating under DC 5230 for the Veteran’s left ring finger disability. At his July 2017 examination, the Veteran reported constant throbbing pain in the finger, at a level of 6 out of 10, aggravated with weight bearing. Medication only provided minimal relief. He reported that he could not fully extend the finger without pain. At his January 2020 hearing, the Veteran likewise reported that he could not fully extend the finger without pain, nor could he use it to carry items around the home, like grocery bags. He cannot wear his ring on his ring finger due to pain and swelling. In the winter, he sometimes cannot move the finger at all. Thus, while a fixed degree of ankylosis was not found on examination, nor was it asserted at the January 2020 Hearing, the Veteran asserted that his ring finger disability thus affects the use of his whole hand. Nonetheless, a compensable rating is not warranted. Under DC 5230, a noncompensable rating is the maximum rating for limitation of motion of the ring finger. The Board acknowledges the Veteran’s reported symptoms, including painful and reduced movement on use, as well as swelling; however, any level of limitation of motion of the ring finger results in a noncompensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the ring and little finger). The United States Court of Appeals for Veterans Claims (Court) held in Sowers that because DC 5230 provided no minimum compensable rating, this preempted the general intent of section 4.59 to account for “actually painful” joints. This is directly applicable here as DC 5230 is the most appropriate DC for the Veteran’s left ring finger disability, and it does not provide for any minimum compensable rating. Thus, a compensable rating is not warranted on this basis. Moreover, examination did not reveal arthritis of the ring finger; thus, a disability rating in excess of 10 percent under Diagnostic Code 5003 for limitation of motion is not warranted. Further, the evidence supports a finding that ankylosis was not present during the period on appeal. The Board notes credible and competent testimony showing that the Veteran cannot move his finger during the winter due to his disability. Nonetheless, ankylosis was not found on examination, and the evidence does not support a finding of ankylosis. Accordingly, a rating under DC 5227 for evaluating ankylosis of the ring finger is not for application, and there is no evidence of more severe impairment, such as amputation. In sum, as the preponderance of the evidence is against a compensable rating for the left ring finger, the benefit-of-the-doubt rule does not apply. Thus, an initial compensable rating is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, a compensable rating for the Veteran’s left ring finger disability is not warranted. 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. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for left shoulder strain is remanded. 2. Entitlement to a rating in excess of 10 percent from January 5, 2017 to prior to November 14, 2017, and in excess of 20 percent from that date, for a low back disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for a left knee disability, diagnosed as patellar tilt (left knee disability) is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right knee strain is remanded. The Veteran appeals August 2017 and January 2018 Rating Decisions granting service connection for left shoulder strain at 20 percent from January 5, 2017, for a low back disability at 10 percent from January 5, 2017 to prior to November 14, 2017 and 20 percent from that date, and left knee disabilities bilaterally, at 10 percent each from January 5, 2017. The Veteran thus seeks increased ratings for each of these disabilities. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination may be required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Here, the Veteran testified at his January 2020 hearing that his symptoms have worsened progressively since his last VA examinations in 2017 and January 2018. Specifically, at his January 2020 hearing, the Veteran’s representative asserted a worsening in the Veteran’s symptoms of the above disabilities. Moreover, from the Veteran’s testimony, it seems that his disability picture may be worse than reflected in his VA examinations of record. Specifically, after his last VA examinations, the Veteran was put on profile twice from his position as Military Police. He was prohibited from running, jumping, sprinting, squatting, kneeling, pivoting, sit-ups, pushups, throwing, swinging, climbing, crawling, bending, and twisting. Furthermore, the Veteran testified at his January 2020 hearing that due to shoulder pain, he could not hold a book bag for more than an hour without pain. He also stated that his back pain and tightness now made it difficult to do anything at home or outside. Finally, he testified as to a sharp pain in the knees every day, at 8 or 9 out of 10. He described a feeling of the bones grinding each other, without activity. The symptoms reported by the Veteran more recently are not reflected in the Veteran’s current VA examinations of record, from 2017 and 2018. Thus, it appears the disabilities have worsened. Accordingly, a remand is warranted to determine the extent of the Veteran’s worsened shoulder, back, and knee symptoms. The matters are REMANDED for the following action: 1. Obtain all treatment records in the possession of any VA treatment facility at which the Veteran has obtained treatment. If the Veteran has additional private treatment records, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to obtain medical findings concerning the current severity of his left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should estimate the level of additional impairment, to the extent possible, based on the other evidence of record, including the Veteran’s own statements. 3. Schedule the Veteran for a VA examination to obtain medical findings concerning the current severity of his low back disability, to include any associated neurologic impairment, other functional impairment, and/or ankylosis. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should estimate the level of additional impairment, to the extent possible, based on the other evidence of record, including the Veteran’s own statements. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairment due to his knee disabilities alone and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living.   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should estimate the level of additional impairment, to the extent possible, based on the other evidence of record, including the Veteran’s own statements. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia