Citation Nr: 21064220 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-03 149 DATE: October 19, 2021 ORDER Entitlement to a compensable rating for right ring finger fracture residuals is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's right finger fracture residuals manifested with pain, and did not manifest with ankylosis. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for a right ring finger fracture residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1992 to April 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Columbia, South Carolina. Jurisdiction of this appeal is currently with the RO in Wichita, Kansas. This case was most recently before the Board in October 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matter was remanded to obtain outstanding records and to schedule a VA examination to determine the current severity of the Veteran's right ring finger fracture residuals. Updated VA treatment records have been associated with the record and a November 2019 letter requested that the Veteran complete appropriate authorization forms to allow VA to obtain records on his behalf. A VA examination was conducted in January 2020. The Board therefore determines that there has been substantial compliance with is previous remand. The case has now been returned to the Board for appellate action. Increased Rating Right Ring Finger Fracture Residuals The Veteran seeks a compensable rating for his right ring finger fracture residuals. Specifically, he asserts that he has pain, limitation of motion, required the use of compression gloves, stiffness, medication, and decreased flexibility that warrant a higher 10 percent rating. See e.g. VA Form 646 Statement of Accredited Representative in Appealed case, January 20, 2017; see also Appellate Brief, August 4, 2019; see Correspondence, January 7, 2020; and see e.g. Appellate Brief, September 13, 2021. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's right ring finger is currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under Diagnostic Code 5230, any limitation of motion of the ring (or little) finger warrants a maximum compensation of zero percent. In other words, limitation of motion of the ring finger is noncompensable. 38 C.F.R. § 4.71a. Diagnostic Code 5229 offers higher ratings for limitation of motion but those are only available for the index or long finger. Id. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). However, there were no amendments made to Diagnostic Code 5230. Additionally, in the instant case, the claims file is absent any medical evidence submitted or associated with the claims file subsequent to the revised rating effective date of February 7, 2021. The Board has also considered whether other diagnostic codes could apply, and the appropriate criteria are discussed below. Diagnostic Code 5227 contemplates ankylosis of the ring or little finger but does not provide any compensable ratings. However, when rating under Diagnostic Code 5227, the rater is to also consider whether amputation is warranted and whether an additional evaluation for resulting limitation of motion of other digits or for interference of the overall function of the hand is proper. See 38 C.F.R. § 4.71a, Diagnostic Code 5227. Diagnostic Code 5010 provides ratings for traumatic arthritis. Under Diagnostic Code 5010, an evaluation in excess of 10 percent requires X-ray evidence of involvement for arthritis of 2 or more major or minor joints or joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Finally, under Diagnostic Code 7804, a 10 percent rating is assigned for 1 or 2 unstable or painful scars; a 20 percent rating is assigned for 3 or 4 unstable or painful scars; and a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Id. Turning to the evidence, the Veteran was afforded a VA examination in March 2016. At that time, the examiner diagnosed residuals of right ring finger fracture. He was right hand dominant. The Veteran denied any flare-ups of his hand or joints. He denied having any functional loss or functional impairment of the joint or extremity. Range of motion measurements were all normal. There was not a gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. Pain was not noted on examination. The examiner indicated the Veteran's examination was medically inconsistent with his descriptions describing a functional loss with repetitive-use over time due to malingering. Muscle strength testing was normal. The Veteran did not have muscle atrophy nor ankylosis shown. Pertinent physical findings included displayed inordinate pain to finger on palpation without other findings; no deformity or swelling; varying strength on examination but when grasped to assist getting up displayed full and normal hand strength; full range of motion bilaterally; and no scars. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies did not document degenerative joint disease. The examiner found the Veteran's right ring finger did not impact his ability to work. The March 2016 VA examiner remarked the Veteran was likely malingering as his complaints of pain were out of proportion to examination, and if the pain was real it would likely be from an unassociated problem. X-ray findings were consistent with the previous fracture, showing a healed and resolved fracture of the right ring finger. When unaware, the Veteran provided full strength and displayed full range of motion throughout; notably, the examiner indicated the Veteran grasped his hand to pull from laying position with the right hand without a problem, but light palpation resulted in complaints of inordinate amounts of pain. The examiner noted there were no objective findings shown. A December 2016 VA treatment record indicates the Veteran had right hand swelling in the ring finger, with full extension and flexion of his finger and hand. The Veteran was afforded a VA examination in January 2020. At that time, the Veteran denied flare-ups of the hand, finger, or thumb joint. He denied having any functional loss or functional impairment of the joint or extremity. Range of motion measurements were all normal. There was not a gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. Pain was not noted on examination. The examiner indicated the Veteran's examination was neither medically consistent or inconsistent with the Veteran's statements describing a functional loss with repetitive-use over time. There were no additional factors contributing to the disability. Muscle strength testing was normal. The Veteran did not have muscle atrophy nor ankylosis shown. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies did not document any abnormal findings. The X-ray reports showed no findings secondary to the injury in service, and showed complete resolution without sequelae on imaging to the right ring finger. The examiner found the Veteran's right ring finger did not impact his ability to work. The January 2020 VA examiner remarked that the examination was within normal limits and there were no objective findings. There was no pain on passive range of motion or weight-bearing. There was no evidence of pain when used in non-weight-bearing. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities, to include his right ring finger. However, there is no indication from the treatment notes of record that the Veteran has reported right ring finger symptoms that are worse than those noted in the various VA examination reports of record. Based on the foregoing, the Board finds that a compensable rating for residuals of right ring finger fracture is not warranted at any time during the period on appeal. In this regard, Diagnostic Code 5230 provides a maximum schedular noncompensable rating for all range of motion measurements. Additionally, Diagnostic Code 5227 provides only noncompensable ratings, and even then only for ankylosis, which is not present in the instant matter. As ankylosis involves an actual fusion of the joint, it is not something that "comes and goes" (i.e. upon flareups). See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Diagnostic Code 5010 provides higher ratings for arthritis; however the medical evidence of record is silent for any indication of arthritis of the right ring finger. Diagnostic Code 7804 is also not available in the instant matter as examination findings have been negative for any scarring. The medical evidence does not indicate any incidence of pain causing functional loss. Pain was also not found upon usage of the hand and fingers. The Veteran also denied flare-ups nor experiencing functional loss at any time as a result of his right ring finger. Thus, the Board finds that the Veteran's symptomatology does not warrant an increased rating under any of the available Diagnostic Codes. Accordingly, the Veteran's claim for a compensable rating must be denied. Furthermore, as the evidence fails to show that the Veteran's ring finger condition has manifested in arthritis, ankylosis, or painful/unstable scarring; and any other diagnostic codes either do not offer compensable ratings or do not apply, the Board finds that a higher or separate rating is not warranted under the Rating Formula for any point during the appeal period. The Veteran's belief that he is entitled to a higher rating for his residuals of right ring finger fracture is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to higher ratings. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to pain and other symptoms reported, the Board notes that such symptoms are contemplated under the current rating assigned. Nevertheless, the Board acknowledges the Veteran's statements and the assertions of his representative that his right ring finger symptoms are more severe than evaluated, to include his reports of pain and swelling, and the use of a compression glove. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, Vet. App. 465, 471 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a compensable rating throughout the period on appeal. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his right ring finger swelling and pain. However, these records do not address the specific rating criteria necessary to substantiate a higher rating. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Nevertheless, the Board acknowledges the Veteran's assertions that his right ring finger residuals result in pain, stiffness, and swelling; and also requires the use of a compression glove and pain medication. However, again, the Board notes that such symptoms are contemplated under the current rating assigned. This argument is therefore without merit. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examination in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the Veteran's March 2016 and January 2020 VA examinations were compliant with Correia and Sharp. The examiner tested for pain, repetitive use, and flare-ups; and also provided an opinion specifically regarding ankylosis during flare-ups. The January 2020 VA examiner also tested passive range of motion, and indicated there was no pain on weight-bearing or on non-weight-bearing. The Board notes that the Veteran denied flare-ups in the January 2020 VA examination but rather reported constant pain. Therefore, the examinations of records are adequate for rating purposes. Therefore, the Board finds that all information required for rating purposes has been provided. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Board notes the arguments of the Veteran's representative in the September 2021 informal hearing presentation that the January 2020 VA examination is inadequate for rating purposes because the medical opinion did not consider the Veteran's reports of symptoms and history under Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Reonal v. Brown, 5 Vet. App. 460, 461 (1993). The Board notes that the Dalton case involves a claim for service connection rather than a claim for an increased rating. With regard to the January 2020 VA examiner stating that there was no record of the Veteran being prescribed a glove for his hand, the Board notes that a December 2016 VA treatment note does reflect that a pair of arthritic gloves were ordered for the Veteran to try. However, such inconsistency is immaterial to determining whether a compensable rating is warranted in this case as the Veteran is currently in receipt of the maximum schedular rating based upon limitation of motion and has not alleged, and the record has not shown, ankylosis in the right ring finger. This argument is therefore without merit. The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected right ring finger residuals; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not asserted at any point in time, and the record does not so indicate, that he is unable to secure and maintain employment due to his service-connected right ring finger laceration. Therefore, a TDIU has not been raised. Accordingly, the Board finds the currently assigned noncompensable rating throughout the appeal period has been properly assigned and a higher rating is not warranted for any of the period on appeal for his residuals for right ring finger fracture. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application in this matter. Thus, a higher rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.