Citation Nr: 20043798 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-46 654 DATE: June 29, 2020 ORDER A compensable rating for the residuals of left middle finger tuft fracture prior to July 1, 2019, is denied. A rating of 10 percent, but no higher, for the residuals of left middle finger tuft fracture, is granted as of July 1, 2019. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had painful motion and/or a gap of one inch (2.5 cm) or more between the left long fingertip and the proximal transverse crease of the palm prior to July 1, 2019. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran had painful motion between the left long fingertip and the proximal transverse crease of the palm as of July 1, 2019. CONCLUSION OF LAW 1. The criteria for a compensable rating for the residuals of left middle finger tuft fracture prior to July 1 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. The criteria for entitlement to a rating of 10 percent, but no higher, for the residuals of left middle finger tuft fracture, are met as of July 1, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1997 to August 2000. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in September 2018. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is given to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or “staged” ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The medical, as well as industrial history, is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For disabilities evaluated based on limitation of motion, provisions of Sections 4.40 and 4.45 pertaining to functional impairment must be applied. 38 C.F.R. §§ 4.40, 4.45. In applying Sections 4.40 and 4.45, a determination is required of whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59; see also 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 [or 4.73] criteria.”). Notably, 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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.” The scope of § 4.59 is not limited to arthritis claims. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The Veteran was initially assigned a noncompensable rating for his left middle finger tuft fracture under 38 C.F.R. § 4.71a, Diagnostic Code 5229. Under Diagnostic Code 5229, limitation of motion of the index or long finger warrants a maximum 10 percent evaluation when there is a gap of one inch (2.5 cm) 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, DC 5229. Diagnostic Code 5230 provides for a maximum, noncompensable evaluation for limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. A review of the relevant medical and lay evidence applied to the above laws and regulations demonstrates that a rating of 10 percent is warranted for the left middle finger as of July 1, 2019. The May 2015 VA examination revealed a slight loss in the range of motion to flexion of the distal interphalangeal (DIP) joint, but the examination was negative for evidence of pain or a gap between the pad of the thumb and the fingers. 05/22/2015, C&P Exam. The record does not contain evidence of painful motion of the left middle finger until July 2019. In July 2019, the VA examiner found no gap between the pad of the thumb and the fingers, and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion but did find evidence of pain. Evidence of pain was found with passive range of motion, non-weight bearing, finger flexion, use of the hand, and palpation of the joint or associated soft tissue. The examiner found pain, weakness, and fatigability significantly limit functional ability with repeated use over time, and the Veteran’s left finger disability prevents him from prolonged typing and computer work due to left finger pain and weakness. 07/02/2019, C&P Exam. The competent and probative evidence of painful motion resulting in functional loss is at least in equipoise as to whether a 10 percent rating is warranted for the left middle finger as of July 1, 2019, which is the maximum schedular rating for limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5229. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), but the Veteran could not receive a compensable evaluation prior to July 1, 2019, or higher or additional evaluations for his left finger disability based on the evidence. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a. The benefit-of-the-doubt doctrine has been applied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.