Citation Nr: 20021805 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-67 815 DATE: March 27, 2020 ORDER For the increased rating period from July 30, 2014, a disability rating in excess of 10 percent for favorable ankylosis of the right middle finger distal phalanx (right middle finger) is denied. For the initial rating period from July 30, 2014, a compensable disability rating for residual scar of the right middle finger is denied. REMANDED Entitlement to an effective date earlier than July 30, 2014 for a 10 percent rating for the right middle finger injury is remanded. FINDINGS OF FACT 1. For the increased rating period from July 30, 2014, the right middle finger has manifested as painful limitation of motion of the right middle finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible. 2. For the initial rating period from July 30, 2014, the residual scar of the right middle finger has not manifested as a scar that is painful, unstable; it has not manifested as deep nonlinear scar that is at least 39 square (sq.) centimeter (cm) or a superficial nonlinear scar that is at least 929 sq. cm. CONCLUSIONS OF LAW 1. For the increased rating period from July 30, 2014, the criteria for a disability rating in excess of 10 percent for the right middle finger have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. For the initial rating period from July 30, 2014, the criteria for a compensable disability rating for residual scar of the right middle finger have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from March 1968 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from the Regional Office (RO), which granted a higher 10 percent rating for the service-connected right middle finger (effective July 30, 2014), and granted service connection for residual scar of the right middle finger, assigning a noncompensable (0 percent) initial disability rating (effective July 30, 2014). With regard to the issues adjudicated on the merits herein, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Entitlement to an earlier effective date for the right middle finger injury is REMANDED for additional development. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for the residuals scar on the right middle finger. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran’s claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board does not find staged ratings to be appropriate in this appeal. The Veteran filed a claim for increased rating for the right middle finger disability. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating the Right Middle Finger Disability from July 30, 2014 The right middle finger disability is assigned a 10 percent rating for the increased rating period from July 30, 2014 under Diagnostic Code 5229. 38 C.F.R. § 4.71a. The Veteran generally contends that a rating in excess of 10 percent is warranted to the right middle finger disability. The Veteran contends the right middle finger was injured during service, was not treated properly, and he has continued to be painful since service. See December 2017 VA Form 9, March 2020 Representative Brief. For the index, long, ring, and little fingers (digits II, III, IV, and V), the metacarpophalangeal joint (MCP) has a range of motion of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of motion of zero to 100 degrees of flexion, and the distal interphalangeal joint (DIP) has a range of motion of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (1). Under Diagnostic Code 5229, for limitation of motion of the index and long finger, a 10 percent (maximum) disability rating is warranted 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. Diagnostic Code 5226 provides a (maximum)10 percent rating for favorable or unfavorable ankylosis of the long finger on the major or minor hand. Id. Diagnostic Code 5154 provides a 10 percent rating for amputation of the long finger of the major or minor hand without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. A 20 percent rating is assigned for amputation of the long finger of the major or minor hand with metacarpal resection (more than one-half of the bone lost). Id. After reviewing all the evidence, lay and medical, the Board finds that for the increase rating period from July 30, 2014, a rating in excess of 10 percent for the right middle finger has not been met. By way of history, the service treatment records reflect that the Veteran sustained a fracture to the right third (middle) finger after accidentally catching his middle finger in a lawnmower engine in July 1969. See July 1969 service treatment record. The Veteran was provided VA examinations in March 2015, July 2016, and February 2020. Throughout the course of the appeal the Veteran has asserted that he continues to have pain and deformity in the right middle finger since service. Specifically, the Veteran contends that he has no mobility in the distal phalanx, and he cannot fully extend or flex the proximal interphalangeal joint, which causes some difficulty using small tools and pain in the right middle finger when using tools around the home. Upon examination, there was localized tenderness and painful motion in the right middle finger with limitation of motion in the PIP and DIP joints of the middle finger. Extension of the PIP ranged from 0 to 30 degrees, flexion of the PIP ranged from 45 to 70 degrees, and motion was fixed at 20 or 30 degrees in the DIP. Motion in the MCP of the right middle finger was 0 degrees to 90 degrees and normal. There is a 3.5 cm gap between right middle finger and proximal traverse crease of the hand on maximal finger flexion. The VA examiners assessed ankylosis in the DIP joint of the right middle finger, but no ankylosis in the PIP or MCP joints. Range of motion in the right thumb, index, ring, and little fingers was normal without evidence of painful motion or ankylosis. See March 2015, July 2016, and February 2020 VA examination reports. The right middle finger is rated at the maximum rating provided by Diagnostic Codes 5229; therefore, a higher disability rating under the diagnostic code relating to limitation of motion of individual digits is not available. 38 C.F.R. § 4.71a. The Board has considered whether a higher disability rating for the middle finger is are warranted under any other diagnostic code pertaining to the fingers. In this case, despite evidence of ankylosis in the DIP of the right middle finger, it is not more advantageous to rate the right middle finger based on ankylosis of the individual digit, as the rating schedule (Diagnostic Code 5226) provides only a (maximum) 10 percent rating for favorable or unfavorable ankylosis of a middle finger on a major or minor hand. Additionally, the Veteran has not alleged, and the record does not evidence, pain, limitation of motion, or ankylosis of the thumb or any other finger on the right hand due to ankylosis in the distal phalanx of the right middle finger. As such, Diagnostic Codes 5216 through 5225 and 5228 do not apply. 38 C.F.R. § 4.71a. Next, the evidence does not reflect that the right middle finger disability has resulted in amputation of the digit. Diagnostic Codes 5126 through 5156 provide ratings based on amputation of individual and multiple digits of the hand. Id. The evidence of record does not show the middle finger disability to be analogous to amputation. The March 2015, June 2016, and February 2020 VA examiners specifically indicated that the functional impairment of the hands, thumbs, and fingers was not such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Board finds that the right middle finger disability does not more nearly approximate amputation of any of the digits of the right hand. 38 C.F.R. § 4.71a; Diagnostic Codes 5126-5156. As the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected right middle finger for the rating period from July 30, 2014, the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Rating the Residual Scar (right middle finger) from July 30, 2014 The residual scar on the right middle finger is assigned a noncompensable (0 percent) rating for the initial rating period from July 30, 2014 under Diagnostic Code 7805. 38 C.F.R. § 4.118. The Veteran generally contends that a compensable rating is warranted for the residual scar on the right middle finger. See March 2020 representative brief. Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 sq. in. (465 sq. cm.) but less than 144 sq. in. (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 sq. in. (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. Id. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. After reviewing all the evidence of record, lay and medical, the Board finds that for the initial rating period from July 30, 2014, the residual scar of the right middle finger has not approximated a higher 10 percent rating. The Veteran has not alleged, and the evidence does not show, that the residual scar on the right middle finger has manifested as pain, unstable covering, or any other functional impairment. See March 2020 Representative Brief; December 2017 VA Form 9; July 2015 Notice of Disagreement (NOD). A review of the evidence of record reflects that the residual scar has manifested as a linear scar located at the tip of the distal phalanx of the right middle finger. The linear scar measures 0.5 sq. cm (2.5 by 0.2 cm) and the Veteran reported that scar is neither painful nor unstable. Additionally, the VA examiner noted that the scar is not nonlinear, deep, or superficial. See March 2015, June 2016, February 2020 VA examination reports. As the evidence does not show a deep and nonlinear scar that is at least 39 sq. cm or a superficial nonlinear scar that is 929 sq. cm, a higher 10 percent rating is not applicable under Diagnostic Codes 7801 through 7802. Additionally, a compensable (10 percent) rating is not warranted under Diagnostic Code 7804, as the residual scar is not painful and/or unstable. Diagnostic Code 7800 is not applicable as the residual scar is not located on the head, face, or neck. Finally, as the residual scar does not result in any additional disabling effects, a higher compensable disability rating is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. As the preponderance of the evidence is against the appeal for a higher 10 percent rating for the residual scar of the right middle finger for the initial rating period from July 30, 2014 to present, the appeal for a higher rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS FOR REMAND 3. Entitlement to an earlier effective date for increased rating for right finger injury is remanded. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a statement of the case (SOC) addressing the issue, the Board should remand the issue(s) to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The record reflects that the Veteran filed a July 2014 claim for increased rating for the right middle finger. An April 2015 rating decision granted a higher 10 percent rating for the service-connected right middle finger and granted service connection for a residual scar on the right middle finger, assigning a noncompensable (0 percent) initial disability rating from July 30, 2014, the date the claim for increased rating was received. The Veteran submitted a timely July 2015 NOD with the effective date assigned for the 10 percent rating for the right middle finger injury. A review of the record reflects that the RO has not issued a SOC regarding the issue of an earlier effective date for a 10 percent rating for the service-connected right middle finger; therefore, the issue must be remanded for the issuance of a SOC. See 38 C.F.R. § 19.9(c). (Continued on the next page)   An earlier effective date for the 10 percent rating for the right middle finger injury is REMANDED for the following action: Issue a statement of the case addressing the issue of an earlier effective date than July 30, 2014 for a 10 percent rating for the service-connected right middle finger. The Veteran and representative should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC unless the appeal is perfected by a substantive appeal. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.