Citation Nr: A21016367 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210615-166645 DATE: October 5, 2021 ORDER Entitlement to service connection for left wrist wounds is denied. Entitlement to a rating in excess of 10 percent for a left-hand strain involving the index, middle, and ring fingers is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran's medical records do not support that he had a current disability, meaning a left wrist wound, around the time he filed his claim. 2. During the appeal period, the Veteran's strain of his left fingers was manifested by limitation of motion, but not ankylosis or amputation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left wrist wounds has not been met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.303. 2. The criteria for a rating in excess of 10 percent for a strain of the left index, long, and ring fingers have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from April 2000 to April 2004. The rating decision on appeal was issued in January 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), electing the Evidence Submission option. The VA liberally construed the Veteran's NOD as appealing the January 2021 rating decision, in accordance with 38 C.F.R. § 20.202(a), as that decision was within one year of the NOD and referred to the Veteran's wrist disability. As for this claim, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative with the NOD or within 90 days of receipt of the NOD. 38 C.F.R. § 20.303. Service connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Service connection for left wrist wounds is denied. The Veteran contends that he has had two wounds on his wrist related to service. Typically, the current disability element for service connection is met if the condition is established during the claim period, even if it resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here the claim has been denied because the Veteran has failed to establish the wound condition during the claim period. While the Veteran may have had wounds on his wrist sometime before filing his claim, the Veteran does not have a service-related wound on his wrist since filing this claim. Service connection for left wrist wounds is not supported because the medical evidence of record fails to show that this disability has been clinically diagnosed within the relevant period or that it was related to service in any way. For example, in November 2020, the Veteran had a VA examination that noted no wounds on the Veteran's left hand. See C&P Exam received December 2020. While the Veteran has scars on his wrist, these are already service connected. See Rating Decision Narrative received April 2020. The Veteran is also service connected for status post open reduction and internal fixation (ORIF) of the left wrist, and for a left-hand strain affecting the index, middle, and ring fingers. As to the Veteran's claim of entitlement to service connection for left wrist wounds, considering all the evidence, the Board finds that the Veteran does not meet the first prong of direct service connection, and therefore the Board finds that the Veteran does not have the current disability. Upon review of the entire record, the Board finds the preponderance of the evidence is against the Veteran's claim. As such, the Veteran's appeal for service connection for left wrist wounds is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding - that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 2. Entitlement to a rating in excess of 10 percent for a left-hand strain involving the index, middle, and ring fingers is denied. The Veteran contends that he should have a higher rating for his left-hand strain involving the index, middle (also known as the long finger), and ring finger. Here, the RO assigned Diagnostic Code 5229 to the Veteran's left-hand strain based on painful motion of the Veteran's index finger and long finger, respectively. The rating decision noted that 38 C.F.R. § 4.59 allowed consideration of functional loss due to painful motion to be rated at least at the minimum compensable rating for a particular joint. Pursuant to Diagnostic Code 5229, limitation of motion of the index or long finger is rated as follows: a noncompensable rating is warranted for the index finger or long finger if there is limitation of motion with a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees; and a maximum 10 percent rating is provided for the index finger or long finger where there is limitation of motion with 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, Diagnostic Code 5229. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (2). If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. Id at Note (5). Pursuant to Diagnostic Code 5230, limitation of motion of the ring or little finger is rated as noncompensable with any degree of limitation of motion. In November 2020, the Veteran had a VA examination and the examiner completed a Hand and Finger Conditions Disability Benefits Questionnaire (DBQ). The Veteran had a strain of the left fingers, and healed index finger fracture. As for a history, while in the Army, during a football game in 2003, the Veteran endorsed falling which caused a sprained left wrist and fractured left index finger. He recalled that the left wrist, hand, and fingers were swollen. Overtime, he reported that he developed tendonitis and intersection syndrome. He continued to have pain after discharge. The left wrist was further complicated in 2019 when he re-injured the same wrist, sustaining a left distal radial fracture. After the left distal fracture, the Veteran was unable to move his hand and needed a surgery. He complained that since his wrist surgery, his left hand or fingers were affected leading to weakness. He had difficulties lifting the left upper extremity. He also noted that the left hand and fingers constantly felt tight leading to difficulties with grabbing and gripping items. His left index finger was also fractured during boot camp with residuals of stiffness and pain. See C&P Exam received December 2020. During the November 2020 VA examination, the Veteran reported that he was ambidextrous. He did not report flares, but he did report difficulty with grabbing and gripping items. The Veteran had abnormal range of motion in his left-hand fingers. In particular, he had reduced flexion of the left index, long, and ring fingers with no gap between the fingers and proximal transverse crease of the hand on maximal fingers flexion. The Veteran had weakness or decreased grabbing and holding on to items. The examiner found no ankylosis and the Veteran would not be equally well service by an amputation. See C&P Exam received December 2020. Based on the above, the Board finds that the preponderance of the evidence does not support an increased rating for the Veteran's service-connected left finger disorders. With regard to the Veteran's left index, long, and ring finger, the disorder is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5229, for any limitation of motion of the index or long finger. Any limitation in motion to the ring finger would be rated at zero percent as noncompensable. While the examination suggested that the Veteran had no gap between the fingertips and the proximal transverse crease of the palm, with the finger flexed to the extent possible, the rating of ten percent accounted for the Veteran's painful flexion. See 38 C.F.R. § 4.59, Rating Decision Narrative dated January 2021. Since June 24, 2020, the date of the Veteran's intent to file, for the left fingers strain, and throughout the appeal period for the index, long, and ring finger, the Veteran was in receipt of 10 percent for his index and long finger limitation of flexion. The Board notes that normally 10 percent is the maximum schedular rating for limitation of motion under Diagnostic Code 5229. The Board has considered whether a higher rating is warranted under another relevant diagnostic code. However, the Board finds that Diagnostic Codes 5216-5227 are inapplicable. For example, there is no evidence of ankylosis in the fingers. Also, the VA examiner of record has not found that the Veteran would be equally well served by amputation. As such, the Board finds that the symptoms of the left finger disabilities are not equivalent to amputation of the fingers or loss of use of the right hand. Under these circumstances, a rating pursuant to Diagnostic Codes 5125-5156 is not appropriate. In the present case, the Veteran's pain has been considered in the application of the current 10 percent disability rating under DC 5229. As such, any assignment of a separate disability rating based purely on painful motion, like DC 5003, would result in "pyramiding." Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The changes to the schedule of rating effective on February 7, 2021 were not favorably applicable to the Veteran's claims above, and as such were not discussed. Therefore, the Board finds that increased ratings are not warranted for the Veteran's service-connected left index, long, and ring finger. Furthermore, the Board does note that the Veteran has specifically claimed service connection in his NOD at 100 percent all the way back to service. However, once a rating decision establishing an effective date becomes final, an appellant can only challenge the effective date assigned by demonstrating clear and unmistakable error (CUE) in the decision. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006); see also 38 C.F.R. §§ 3.105(a), 3.160(d), 3.400(h)(2). Therefore, there is no basis to support a rating going back to service for the finger disabilities. There is also no basis to increase the rating, as discussed above, to higher than 10 percent and there is certainly no basis for a 100 percent rating for the left index, long, and ring finger disability. In reaching its decision, the Board has duly considered the benefit of the doubt doctrine but has determined the doctrine is inapplicable because a preponderance of the evidence weighs against the Veteran's claim. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.