Citation Nr: 21003127 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-23 810 DATE: January 19, 2021 ORDER Entitlement to a compensable rating for service-connected left ring finger DJD status post facture and surgery (left ring finger) is denied. FINDING OF FACT The Veteran’s left ring finger is manifested by pain, weakness, and limitation of motion. CONCLUSION OF LAW The criteria for an initial compensable rating for left ring finger disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5299- 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to September 1994. In December 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2019, this appeal was remanded for further development. Increased Ratings A. Legal Principles and Regulations Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran’s disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform any of the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. See 38 C.F.R. § 4.27. Left Ring Finger Here, in a July 1995 rating decision, service connection for left ring finger was granted with a noncompensable rating under DC 5299-5230. The Veteran did not file a notice of disagreement contesting the initial rating. However, in October 2013, the Veteran filed a claim of increase with respect to his service-connected left ring finger. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim; thus, the appeal period begins on October 9, 2012. 38 C.F.R. § 3.400. The Veteran contends that his left ring finger warrants a compensable rating. Specifically, the Veteran contends that he has frequent swelling, problems holding utensils, cramps, and limited range of motion. See December 2018 Board hearing testimony. The Veteran’s service-connected left ring finger disability has been rated as non-compensable under DC .5299-5230 throughout the appeal period. Under DC 5299-5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. DC 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a. A review of the evidence reveals the following. In a March 2014 VA examination report for hand and finger conditions, the VA examiner noted a diagnosis of degenerative joint disease of the left ring finger. The VA examiner also noted a 1984 left ring finger fracture. The VA examiner noted that the Veteran’s left hand is dominant. The Veteran reported that he has pain and decreased range of motion with his left ring finger. The VA examiner noted the Veteran experiences flare-ups in his left ring finger. The Veteran reported that he experiences pain with edema, associated stiffness, incoordination, and weakness. The VA examiner noted painful motion with respect to the Veteran’s left ring finger. During his December 2018 Board hearing, the Veteran testified that his left ring finger has progressively worsened in pain. As such, another VA examination was required. In an August 2020 VA examination report for hand and finger conditions, the Veteran reported that his current symptoms are chronic throbbing pain, swelling, stiffness, and difficulty gripping with left hand. The Veteran reported flare-ups two to three times a week, which are moderate to severe and last hours. Upon range of motion testing, the VA examiner noted that maximum flexion of the left ring finger was to 0 degrees. Also, maximum extension of the metacarpophalangeal (MCP) joint is 90 degrees (after repeated use and flare-ups maximum is 60 degrees), maximum extension of the proximal interphalangeal (PIP) joint is 100 degrees (after repeated use and flare-ups maximum is 30 degrees), and maximum extension of the distal interphalangeal (DIP) joint 70 degrees (after repeated use and flare-ups maximum is 70 degrees). The VA examiner noted that diagnostic testing revealed degenerative or traumatic arthritis of the left ring finger. However, the VA examiner noted that degenerative or traumatic arthritis is not documented in multiple joints of the same hand. The Board notes that the other medical treatments of record support a finding that the Veteran has reported pain in his left ring finger. Upon review of the evidence of record, the Board acknowledges that the Veteran contends, and the medical evidence suggests, that the Veteran’s left ring finger is manifested by pain, diminished grip, and limitation of motion. However, under DC 5230, a noncompensable rating is the maximum rating for limitation of motion. Under DC 5230, any level of limitation of motion of the ring finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the fourth and fifth fingers). Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted. Moreover, although the evidence of record indicates a diagnosis of degenerative arthritis of the left ring finger, a rating of 10 percent under DC 5003 is not warranted. DC 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. The code provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Codes 5228 to 5230), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, DC 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (f). Given such, the Veteran’s left ring finger is not a major joint group and the evidence does not demonstrate that the service-connected disability affects two or more minor joint groups. Specifically, the Veteran has a degenerative arthritis diagnosis for a single joint only, the left little finger, only affecting the interphalangeal joints. Since there is no evidence of multiple involvements of the interphalangeal, metacarpal and carpal joints, a higher rating under DC 5003 is not warranted. 38 C.F.R. § 4.45 (f). Therefore, the weight of the evidence is against finding that the service-connected left ring finger disability warrants consideration for a rating under DC 5003. As such, a minimum 10 percent disability rating under DC 5003 for limitation of motion is not warranted. Lastly, the Board notes that the record contains no evidence of ankylosis or amputation of the left ring finger. Thus, DCs 5156 and 5227 are not applicable. 38 C.F.R. § 4.71a. In sum, the Board finds that a compensable rating for the Veteran’s left ring finger is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, Associate 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.