Citation Nr: A21016798 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 200519-84482 DATE: October 15, 2021 ORDER A compensable rating for right ring and little finger dysfunction is denied. A rating in excess of 10 percent for right thumb fracture residuals is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right ring and little finger dysfunction was manifested by pain and weakness, but not limitation of motion, ankylosis, or the equivalent of an amputation. 2. Throughout the appeal period, the Veteran's right thumb fracture residuals have been manifested by pain and limitation of motion, but not ankylosis, the equivalent of an amputation, or a gap more than two inches between the thumb and fingers. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for service-connected right ring and little finger dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5230. 2. The criteria for a rating in excess of 10 percent for right thumb fracture residuals are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to February 1979. This matter is on appeal to the Board of Veterans' Appeals (Board) from an April 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The April 2020 rating decision was a Higher-Level Review decision that considered the evidence of record at the time of a previous decision by the RO in December 2019. 38 C.F.R. §§ 3.2500(a), 3.2601. In a May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. The Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims herein, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). 1. A compensable rating for right ring and little finger dysfunction. The Veteran's right ring and little finger disability is currently rated as noncompensable pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5230. Disabilities not specifically addressed in the Rating Schedule are rated by analogy and coded with the first two numbers of the schedule provisions for the most closely-related body part and "99"; the Diagnostic Code used to identify the basis for the evaluation assigned is shown after a hyphen. 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 5230 addresses limitation of motion of the ring or little finger and provides only for a noncompensable disability rating. A noncompensable rating is also provided for unfavorable or favorable ankylosis of the ring finger. 38 C.F.R. § 4.71a, Diagnostic Code 5227. A Note to Diagnostic Code 5227 provides that when ankylosis is present it should be considered whether evaluation as amputation is warranted and whether an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand. Id. A compensable rating for a ring or little finger disability requires amputation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5155, 5156. Otherwise, higher ratings are available only for limitation of motion of the other fingers, or for the ring finger in combination with at least one other finger. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5229. During the appropriate period on appeal, a VA hand and fingers examination was afforded to the Veteran in August 2019. The Veteran reported chronic pain of the right hand and poor grip strength, and that his right index finger gets stuck at times when he tries to bend it. He also noted that, during a flare up of pain he can "hardly hold a pen." Physical examination, however, revealed no decreased range of motion specifically in the ring and little finger. Muscle strength in the right hand was slightly reduced, with active movement against some resistance. The examiner specifically noted that there was no ankylosis of any finger in the right hand, and no right finger disability manifested to the level of impairment that would be equally served by an amputation or prosthesis. There are no other medical records in significant conflict with the above findings upon VA examination in August 2019. While the Board acknowledges that additional VA examinations of the hand and fingers are of record, as noted above, this evidence is outside of the relevant evidentiary window. See 38 C.F.R. § 20.300. Upon review, the Board finds that a compensable rating for the Veteran's right ring and little finger dysfunction is not warranted. As discussed above, a noncompensable rating is the maximum rating under Diagnostic Code 5230 for limitation of motion, and there is no evidence of ankylosis or that the Veteran would be better served by amputation of the finger. The Board acknowledges that the functional equivalent of ankylosis during flare-ups pursuant to 38 C.F.R. § 4.40 and 4.45 can nevertheless satisfy the criteria for a rating based on ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). Here, however, despite the Veteran's complaints, pain did not result in the functional equivalent of ankylosis of the ring and little finger at any time during the period on appeal. In Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), ankylosis was defined as "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." It is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure"). DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (32nd ed. 2012). While the Veteran has described a "locking" of his index finger, the rating for the Veteran's other fingers (other than the thumb rating addressed below) are not on appeal. The Veteran has not described, including during any medical examination, a limitation of motion during flare-ups of pain that essentially results in stiffening, fixation, or immobility specifically of the ring or little finger. Accordingly, the Board finds that a compensable disability rating cannot be granted. In so holding, the Board acknowledges that the Veteran is competent to give evidence about observable symptoms such as pain and the resultant limitation of motion. Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for Veterans Claims has held that VA's Rating Schedule makes it clear that a ring finger disability manifested by limitation of motion or ankylosis is not compensable as there has been a determination that there is no specific impairment in earning capacity from this type of disability. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). As a zero percent disability rating is the maximum schedular rating allowable, the provisions of 38 C.F.R. § 4.59 (intending to recognize a minimum compensable rating is provided for actually painful joints) and 38 C.F.R. §§ 4.40 and 4.45 (providing for consideration of painful motion and functional loss) do not apply. Id. In conclusion, a compensable rating for right little and ring finger dysfunction is not warranted. As the preponderance of the evidence is against the claim, the claims must be denied. 38 U.S.C. § 5107(b) 2. A disability rating in excess of 10 percent for service-connected residuals of a right thumb fracture. The Veteran is currently service-connected for residuals of a right thumb fracture evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5228. Diagnostic Code 5228 applies to limitation of motion of the thumb and assigns a 10 percent rating for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A noted previously, a VA hand and fingers examination was afforded to the Veteran in August 2019. The Veteran reported chronic pain of the right hand and poor grip strength, and that his right index finger gets stuck at times when he tries to bend it. He also noted that, during a flare up of pain he can "hardly hold a pen." Physical examination revealed flexion in the thumb reduced to 90 degrees and 1 cm gap between the thumb pad and fingers. While the examiner estimated that flexion in the right thumb would be further reduced to 70 degrees after repetitive use over time and during a flare, estimation of any gap between the thumb pad and fingers remained at 1 cm. Again, the examiner specifically noted that there was no ankylosis of any finger in the right hand and no right finger disability manifested to a level of impairment that would be equally served by an amputation or prosthesis. There are no other medical records in significant conflict with the above findings upon VA examination in August 2019. While the Board acknowledges that additional VA examinations of the hand and fingers are of record, as noted above, this evidence is outside of the relevant evidentiary window. See 38 C.F.R. § 20.300. Upon review, the Board finds that a rating higher than 10 percent for the Veteran's right thumb disability is not warranted. The Board acknowledges the Veteran's testimony of pain and limited function of the right hand; however, the Veteran's right thumb disability has not been manifested at any time by limitation of motion of the thumb with a gap of more than two inches (5.1 cm) between the thumb pad and fingers. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, as there was no ankylosis of any thumb joint, including the functional equivalent of stiffening, fixation, or immobility of thumb joint, an evaluation under Diagnostic Code 5224 is not warranted. See Chavis, 34 Vet. App. 1. Again, the Veteran is competent to give evidence about observable symptoms such as pain and the resultant limitation of motion. Layno, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher rating. When weighing the evidence to determine whether there is limitation in motion of the Veteran's thumb, objective medical evidence is not automatically more probative than lay evidence. See English, 30 Vet. App. at 353. Currently, however, the medical evidence does not support the Veteran's contentions that a higher rating is warranted. In conclusion, a rating in excess of 10 percent for a right thumb disability is not warranted. As the preponderance of the evidence is against the claim, it must be denied. 38 U.S.C. § 5107(b). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.