Citation Nr: 21003188 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-29 475 DATE: January 19, 2021 ORDER A rating in excess of 10 percent for the service-connected status post fracture of the right little finger with residual limitation of motion is denied. REMANDED Entitlement to a separate initial compensable rating for the service-connected status post fracture of the right little finger with residual limitation of motion, based upon neurological impairment, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The 10 percent evaluation assigned for the service-connected status post fracture of the right little finger with residual limitation of motion is the maximum rating available under the VA rating schedule, as the digit is not ankylosed and as there is no indication of total loss of use of the finger such that the Veteran would be equally served by amputation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the service-connected status post fracture of the right little finger with residual limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.59, 4.71a, Diagnostic Codes 5024 to 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1985 to May 1989. This case was most recently before the Board of Veterans’ Appeals (Board) in August 2019. At that time, the Board remanded the issues on appeal for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Status post fracture of the right little finger with residual limitation of motion The Veteran's status post fracture of the right little finger, and residual limitation of motion has been rated 10 percent under Diagnostic Code (DC) 5230-5024. 38 C.F.R. § 4.71a. The Veteran asserts that he is entitled to a higher rating for his right little finger disability. The Veteran was initially assigned a noncompensable rating for his right little finger disability under DC 5230 which provides that any limitation of motion of the ring or little finger is to be rated 0 percent, the highest schedular rating available. In a July 2010 rating decision, the Regional Office (RO) assigned the Veteran’s current 10 percent rating for the right little finger disability under DC 5024. This diagnostic code provides that tenosynovitis will be rated on limitation of motion of the affected parts, as degenerative arthritis under DC 5003. DC 5003 provides that, when there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code – in this case DC 5024, a 10 percent rating will be assigned for each affected major joint or group of minor joints. In this regard, the Veteran has been evaluated at 10 percent for limitation-of-motion under DC 5003. Further, a 20 percent rating under DC 5003 requires an absence of limitation of motion and X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Note (2) provides that the 20 percent rating based on X-ray findings, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. As the Veteran is evaluated under DC 5024, a 20 percent rating is not warranted under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Indeed, the August 2019 Board decision determined that the issue of entitlement to service connection for a right ring finger disability was inextricably intertwined with the claim for a higher rating for the service-connected right little finger disability. The Board referred this issue to the RO for adjudication. In an October 2020 rating decision, the RO denied service connection for the claimed right ring finger disability. As such, service connection and a 10 percent rating have been granted for only the right little finger. Therefore, the rating criteria for multiple digits are not applicable. The Board has considered whether a rating in excesses of 10 percent is available under any other diagnostic code for the Veteran’s right little finger disability. In this regard, the Veteran was afforded a VA examination to determine the nature and severity of his right little finger disability. An August 2020 VA examination confirmed the Veteran’s right little finger diagnosis. The Veteran reported moderate flare-ups once every few weeks and noted functional loss due to difficulty gripping objects for prolonged periods of time. The examiner noted that the Veteran’s right hand exhibited an abnormal range of motion and documented pain on examination which causes functional loss. Further, the examiner noted pain on finger flexion, finger extension, and opposition with thumb. Upon repetitive-use testing, the Veteran had pain, weakness, and lack of endurance which causes functional loss. Additionally, the examiner reported that the finger condition did not result in a level of severity which would be functionally equivalent to amputation. Upon review of the medical records and the physical examination, the August 2020 examiner found that there are no imaging studies showing ankylosis of the right hand. Instead, the examiner provided a separate diagnosis of Dupuytren’s contracture which is more consistent with the Veteran’s right-hand symptoms. The Board has considered DC 5227, for ankylosis of individual digits. 38 C.F.R. § 4.71a, DC 5227. However, DC 5227 also does not provide for a compensable rating for the little finger, nor did the VA examiner find the Veteran’s right little finger was ankylosed. Similarly, the Board has considered DC 5156, for amputation of the little finger. 38 C.F.R. § 4.71a, DC 5156. However, the examiner clearly reported that there was no total loss of use of this digit that would require amputation. Thus, under DC 5156 there was no indication of total loss of use of the finger such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, DC 5156. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. As DeLuca cannot provide an adequate basis for a disability rating when, as in this case, the musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). In conclusion, the Board finds that a disability rating greater than 10 percent is not warranted for the right little finger disability. REASONS FOR REMAND Status post fracture of the right little finger with residual limitation of motion, based upon neurological impairment TDIU Pursuant to the August 2019 Board remand, an appropriate medical opinion was obtained which allowed the Board to now adjudicate the issue of entitlement to a rating in excess of 10 percent for the service-connected right little finger disability. However, there was not substantial compliance with the remand directive regarding the possibility of an additional compensable rating for the condition due to neurological impairment. As such, the Board has recharacterized the issues on appeal to better reflect the Veteran’s contentions and to clarify the current status of the claim for increased rating on appeal. Subsequent to the prior Board remand, the Veteran was afforded VA examination in August 2020. The examiner opined, based upon the physical examination and review of the medical records, that the Veteran does not have a diagnosis of the claimed neurological hand impairment. However, the examiner failed to comply with the remand directives and did not consider the Veteran’s lay testimony of experiencing neurological symptoms, such as tingling and numbness of his right little finger. As such, the Board finds that the August 2020 medical opinion regarding neurological impairment does not provide adequate information for adjudication. Therefore, this matter must be remanded for further development. Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination of his right little finger. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner designated to examine the Veteran, and the report of the examination should include a discussion of the Veteran’s documented medical history and assertions. Any necessary studies or tests should be conducted. Upon review of the record and interview and examination of the Veteran, the examiner is asked to do the utilize the appropriate Disability Benefits Questionnaire in evaluating the service-connected right little finger disability. After reviewing the record and examining the Veteran, the examiner must provide opinions on the following: Address whether or not there is any neurological impairment associated with the Veteran’s right little finger disability. In doing so, the examiner must: a. identify all the nerves affected; b. determine whether the findings represent complete paralysis of each affected nerve or nerves; or, mild, or moderate, or moderately severe, or severe incomplete paralysis of each affected nerve or nerves; c. if there is overlapping symptomatology among multiple nerves, the examiner should, to the extent possible, identify the impaired nerve that is most analogous to the Veteran’s symptoms. In addressing this matter, the examiner must consider (and indicate such consideration) the Veteran’s October 2015 hearing testimony whereby he stated that he has been experiencing neurological symptoms such as tingling and numbness in his right little finger. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 2. Then, review the medical opinion/examination obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or are not sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Finally, adjudicate the separate compensable rating and TDIU claims remaining on appeal (as are listed on the title page of this Remand). In adjudicating the TDIU issue, the AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38C.F.R. §4.16, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). If the separate compensable rating claim is not fully granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38C.F.R. §3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherouskyv. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.