Citation Nr: 21004300 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-29 006 DATE: January 26, 2021 ORDER Entitlement to an initial compensable rating for residuals of a right hand ring finger fracture is denied. Entitlement to service connection for a dental disability for compensation purposes is denied. REMANDED Entitlement to service connection for a dental disability for treatment purposes is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s residuals of a right hand ring finger fracture have been manifested by painful motion, weakened motion, achiness, and limitation of flexion of the metacarpophalangeal, proximal interphalangeal and distal interphalangeal joints. 2. The Veteran does not have a dental disability for which service-connected compensation is payable. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of a right hand ring finger fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 2. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to November 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the RO granted service connection for a right hand ring finger fracture (“right ring finger disability”), assigning a noncompensable rating effective May 29, 2018, and denied service connection for a dental disability. The Veteran properly and timely perfected an appeal of the assigned noncompensable rating and the denial of service connection to the Board. 38 C.F.R. § 20.302 (2018). The Board notes that after filing his May 2018 claim for service connection for a right ring finger disability and a dental disability, the Veteran filed a Rapid Appeals Modernization (“RAMP”) opt-in election form in July 2018. However, the issues comprising the current appeal were not the subject of an appeal in the legacy system at the time July 2018 opt-in was filed. As such, the July 2018 opt-in did not apply to the current appeal, and the Board will adjudicate the current appeal according to the legacy appeal system. 38 C.F.R. §§ 3.2400(a), (c)(1), 19.2(d)(3). 1. Entitlement to an increased rating for a right ring finger disability. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see 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. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. In this case, the Veteran’s right ring finger disability is rated under Diagnostic Code 5230. Under Diagnostic Code 5230, a noncompensable rating is warranted for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. For the index, long, ring and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. 38 C.F.R. § 4.71a, Evaluation of Ankylosis of Limitation of Motion of Single or Multiple Digits of the Hand, Note 1. For digits II through V, the metacarpophalangeal (MCP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal or terminal interphalangeal (DIP) joint, has a range of zero to 70 or 80 degrees of flexion. Id. During the period on appeal, the Veteran has reported that he experiences painful motion, achiness and weakened motion in his right ring finger, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, there is no evidence these statements are not credible, and therefore they are entitled to probative weight as to the severity of the right ring finger disability during the period on appeal. The Veteran was provided with a VA examination in August 2018. The Veteran reported that he experienced flare-ups of the disability, characterized by pain and aching. He further stated that he experienced weakened movement of the right ring finger. The examiner stated that the Veteran was capable of MCP joint flexion from 0 degrees to 60 degrees, PIP joint flexion from 0 degrees to 80 degrees, and DIP joint flexion from 0 degrees to 50 degrees. The examiner noted that there was evidence of pain on motion, as well as on passive motion and non-weightbearing, and measured the range of motion of the opposite joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). After observed repetitive testing, the examiner noted that the Veteran was capable of MCP joint flexion from 0 degrees to 55 degrees, PIP joint flexion from 0 degrees to 75 degrees, and DIP joint flexion from 0 degrees to 45 degrees. The examiner then estimated that during a flare-up the Veteran would be capable of MCP joint flexion from 0 degrees to 45 degrees, PIP joint flexion from 0 degrees to 65 degrees and DIP joint flexion to 35 degrees. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). The examiner noted that there was evidence of weakness in the right hand due to the ring finger disability, but that there was no evidence of ankylosis or loss of use of the finger. There is no evidence that the above examiner was either not competent or credible. Further, the examiner’s assessment of the disability was based on the Veteran’s own reports of his symptoms and their severity, a review of the record, and an objective examination of the right ring finger. As such, the Board finds that the examination report is entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records associated with the file are silent for any treatment for a right ring finger disability or symptoms associated therewith. Based on the foregoing, the preponderance of the evidence is against a finding that an initial compensable rating is warranted in this case. The evidence of record clearly reflects that the Veteran has limitation of motion of the right ring finger. However, the rating schedule specifically states that any degree of limitation of motion of the right ring finger warrants a noncompensable rating. While the Veteran has been noted to have painful and weakened motion of the joints of the right ring finger, in this case the Diagnostic Code applicable to the Veteran’s disability does not provide for a compensable rating for disabilities of the ring finger. Sowers v. McDonald, 27 Vet. App. 472, 478–80 (2016). As such, a compensable rating based solely on additional factors such as pain and weakened motion cannot be awarded in this case. 38 C.F.R. §§ 4.40, 4.45, 4.59. Based on the foregoing, the preponderance of the evidence is against a finding that an initial compensable rating is warranted for the Veteran’s right ring finger disability. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5230. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence of loss of use of the right ring finger. 38 C.F.R. § 4.71a, Diagnostic Code 5156. Further, the Veteran’s disability has been only noted to affect the right ring finger, and therefore rating by analogy to other Diagnostic Codes for the digits of the hand is not appropriate in this case. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015). There is no evidence of involvement of other fingers of the right hand, ankylosis, or arthritis involving two of more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5216 to 5227. There is no evidence of any nerve impairment of the right hand. While there is evidence of weakened movement of the right ring finger, this weakness and its effect on the functioning of the right ring finger is fully contemplated by the currently assigned rating. 38 C.F.R. § 4.59. As such, higher or additional ratings under other Diagnostic Codes are not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial compensable rating for the Veteran’s right ring finger disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to service connection for a dental disability. Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). The dental disabilities for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Disability compensation and VA outpatient dental treatment may be provided only for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. In this case, there is no competent lay, medical or dental evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss or any other condition on which service connection could be allowed. The Board notes that the Veteran has reported that he complained of dental issues in service, and that he had several teeth pulled immediately following service as a result of his service-connected mycosis fungoides and oral tumors. However, these statements do not establish that the loss of teeth was due to loss of substance of the body of the maxilla or mandible. Thus, the statements do not establish the presence of a dental disability for which VA may award disability compensation. The Veteran was afforded a dental examination in August 2018. At that time, the dental examiner stated that the Veteran’s diagnosed loss of teeth, caries and periodontal disease were not due to loss of substance of the body of the maxilla or mandible, trauma or disease. The examiner further stated that there was no evidence of any maxilla or mandible disabilities generally, and that the Veteran’s diagnosed disabilities were more consistent with an individual who had not had consistent professional dental care. There is no evidence that the examiner was either not competent or credible, and the examiners assessment was based on both the Veteran’s reports and an objective dental examination. As such, the Board finds that the examination report is entitled to significant probative weight as to the presence of a dental disability for which disability compensation may be awarded. Nieves-Rodriguez, 22 Vet. App. 295. No other evidence of record reflects that the Veteran’s loss of teeth is due to loss of substance of the maxilla or mandible. In sum, there is simply no competent evidence that the Veteran has a current dental disability for which compensation is payable. 38 C.F.R. § 4.150. Based on the foregoing, the Board concludes that there is no basis under the law for the award of service-connected VA disability compensation for a current dental disorder, as there is simply no evidence that the Veteran has a dental disability falling under the categories of compensable dental conditions. Id. When, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429–30 (1994). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a dental disability for treatment purposes only. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. §§ 3.381, 17.161. In the September 2018 rating decision on appeal, the RO generally denied entitlement to service connection for a dental disability. In the narrative portion of the decision, the RO noted that certain dental disabilities, such as carious teeth, are not disabilities for which VA disability compensation may be awarded, but that service connection for such disabilities may be service connected solely for treatment purposes. The RO then stated that service connection for compensation purposes was being denied, but then cited to the regulation governing service connection for dental disabilities for treatment purposes. 38 C.F.R. § 3.381(a). Thus, while confusing, it appears that the September 2018 rating decision denied service connection for the claimed dental disability for both compensation and treatment purposes. Subsequently, the Veteran submitted a standard notice of disagreement on which he generally stated that he was disagreeing with the denial of service connection for a dental condition. However, the notice of disagreement did not clearly state whether it was limited to service connection for treatment purposes or service connection for compensation purposes. In light of the somewhat unclear nature of the September 2018 rating decision and the general nature of the notice of disagreement, the Board will construe the September 2018 notice of disagreement as being filed in response to the denials of service connection for a dental disability for both compensation and treatment purposes. 38 C.F.R. §§ 20.201, 20.302. While the September 2019 statement of the case clearly denied entitlement to service connection for a dental disability for compensation purposes, it did not clearly address the issue of entitlement to service connection for treatment purposes only. As the September 2018 rating decision adjudicated the issue of entitlement to service connection for treatment purposes and the Veteran filed a notice of disagreement as to that denial, the issue of entitlement to service connection for a dental disability must be remanded for the issuance of a statement of the case. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.26 (2018); see Manlincon, 12 Vet. App. 238. The matters are REMANDED for the following action: Issue a statement of the case adjudicating the issue of entitlement to service connection for a dental disability for treatment purposes only. The issue should be returned to the Board only if the Veteran properly and timely perfects an appeal. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.