Citation Nr: 20034477 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-17 446 DATE: May 18, 2020 ORDER Entitlement to a compensable initial rating for right fifth finger contracture is denied. FINDING OF FACT Right fifth finger contracture is manifested by pain, stiffness and limitation of motion. There is no ankylosis or amputation. CONCLUSION OF LAW The criteria for a compensable rating for right fifth finger contracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Codes 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to December 1999. In September 2019 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. During the hearing, the VLJ clarified the issue on appeal, explained the concept of increased rating claims, identified potential evidentiary defects, and held the file open for 60 days to allow for any submissions. These actions comply with 38 C.F.R. § 3.103. A transcript of the hearing is of record. 1. Rating for right fifth finger contracture. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here as noted below staged ratings have been considered but are not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s right 5th finger is currently rated at 0 percent under Diagnostic Code 5230. To warrant a compensable rating, there must be amputation under Diagnostic Code 5155. The Board finds that, based on the evidence of record, the preponderance of the evidence is against granting a compensable rating. The Veteran’s right fifth finger contracture is currently evaluated under Diagnostic Code 5230, which provides for a noncompensable evaluation for any limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a, Diagnostic Code 5230. In order to receive a compensable rating for a disability of the little finger alone there must be amputation. Under Diagnostic Code 5156, a 10 percent rating applies for amputation of the little finger at the proximal interphalangeal joint or proximal thereto without metacarpal resection, and a 20 percent rating applies with metacarpal resection (more than one half the bone lost). These ratings apply regardless of whether the disability affects the dominant or the non-dominant hand. See 38 C.F.R. § 4.71a, Diagnostic Code 5155. The Veteran was afforded a VA examination in November 2014. He reported limited right fifth finger extension, weak fifth finger flexion, weakened right hand grip, numbness in the right fifth finger in the morning, intermittent pain with use, decreased right hand dexterity, catching his right fifth finger on clothing, and fatigue and weakness with repeated use. On examination, the Veteran exhibited less movement than normal, weakened movement, excess fatigability, and incoordination in the right little finger. There was tenderness on palpation. The Veteran exhibited limited range of motion and pain on movement. Muscle strength testing was 4/5 for right hand grip. There was no ankylosis. See November 2014 VA Examination. In June 2019 the Veteran visited a private bone and joint center for evaluation of his right-hand small finger. He reported limitations in the use of the finger than interferes with his daily work and daily life activities, pain in the finger, and restricted motion. On examination his right hand showed a resting posture of flexion through the proximal interphalangeal joint of the small finger. The remainder of his hand appeared normal and there was no swelling, bruising, or ecchymoses. The Veteran had normal sensation in the fingers and had brisk capillary refill in each finger. Ranges of motion for the small finger metacarpophalangeal joint was 0-90 degrees, 55-75 degrees for the proximal interphalangeal joint, and 0-35 degrees for the distal interphalangeal joint. He had very weak small finger flexion. The doctor diagnosed an acquired boutonniere’s deformity. See June 2019 Private Evaluation. The Veteran has submitted a September 2019 letter from Dr. A.M., the doctor who performed the June 2019 evaluation. Dr. A.M. stated the Veteran experiences chronic pain and dysfunction as a result of his right little finger injury. April 2016 radiographs demonstrate posttraumatic arthritis as well as a fixed flexion deformity of the proximal interphalangeal joint. Dr. A.M. also noted joint space narrowing and bone spurring, as well as calcification. See September 2019 Letter. The Veteran testified at a Board hearing in September 2019. Although much of his testimony was inaudible, the Veteran stated that his right little finger had worsened since the November 2014 examination. He reported pain and weakness on activities such as shaking hands and that daily pain had impacted his performance at work, sports, and in daily activities. He reported zero strength in his right little finger that had led to dangerous circumstances and problems with physical evaluations at work. See September 2019 Hearing Transcript. Here, compensable evaluations are not available under Diagnostic Code 5230 for ring or little finger, limitation of motion. Generally, amputation or ankylosis is necessary in order to receive a compensable rating, which is not shown by the record. Additionally, 38 C.F.R. § 4.59 is not applicable because there is not a minimal compensable evaluation based on limitation of motion of the ring finger. A noncompensable evaluation must be assigned under Diagnostic Code 5230. The Board has also considered whether the Veteran is entitled to a higher rating under a different diagnostic code for arthritis. As noted above, the Veteran now has posttraumatic arthritis in his right little finger substantiated by April 2016 x-rays. Arthritis due to trauma and substantiated by x-ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis of a major joint or group of minor joints is to be rated under the criteria for limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. For the purpose of rating disabilities due to arthritis, multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a group of minor joints, ratable on a parity with major joints. See 38 C.F.R.§ 4.45. Where limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, a 10 percent rating for arthritis is not warranted. The evidence shows arthritis in the proximal interphalangeal joint as shown by joint space narrowing. See September 2019 Letter; June 2019 Private Evaluation. Only one joint in the Veteran’s right fingers is affected by arthritis. As explained in 38 C.F.R.§ 4.45, to warrant a 10 percent rating for arthritis affecting a group of minor joints, there must be multiple involvements. The record shows only one of the Veteran’s joints is involved. As a “group of minor joints” is not affected by arthritis, a 10 percent rating for posttraumatic arthritis is not warranted. Ultimately, the Veteran’s right fifth finger contracture is properly rated under Diagnostic Code 5230, and only a noncompensable rating may be assigned. Even when we accept everything the Veteran and his doctors have stated as true, a rating in excess of 0 percent is not warranted. There is no ankylosis and there has not been amputation with metacarpal resection of the Veteran’s right little finger. Arthritis does not affect multiple joints. The applicable criteria already contemplate limitation of motion of the ring or little finger and require a noncompensable evaluation. For all the foregoing reasons, the Board finds that a compensable rating for the right little finger is not warranted at any time during this appeal. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.