Citation Nr: 21067320 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 110 DATE: November 3, 2021 ORDER Entitlement to an initial compensable rating for limitation of motion of the right ring finger is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include Major Depressive Disorder (MDD) with insomnia, anxiety and stress is remanded. FINDING OF FACT The Veteran's right ring finger limitation of motion has not more nearly approximated ankylosis, amputation, or significant or sustained additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, incoordination, or flare ups. CONCLUSION OF LAW The criteria for an initial compensable rating for limitation of motion of the right ring finger are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1975 to July 1977. These matters come to the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a March 2017 rating decision that granted service connection for, among other things, ring or little finger limitation of motion and assigned an initial noncompensable rating, and denied service connection for anxiety disorder, depression, insomnia, posttraumatic stress disorder (PTSD), and stress disorder. The Veteran filed a notice of disagreement (NOD) in May 2017, specifically requesting an initial 30 percent rating, and, in August 2017, was issued a statement of the case (SOC). The Veteran filed a timely substantive appeal (via VA Form 9), and the case has come to the Board for adjudication. On a procedural note, the Veteran consistently separated his psychiatric disorder into five separate claims of stress, anxiety, insomnia, depression and PTSD. However, the claim has been recharacterized as service connection for MDD (the psychiatric disability the Veteran was diagnosed with under the DSM-5) with related symptoms of insomnia, stress and anxiety. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (a valid DSM-5 diagnosis is required to warrant compensation for a psychiatric disability); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Increased Rating Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flareups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Veteran's right ring finger is rated under 38 C.F.R. § 4.71A, DC 5230. As applicable to this case, the preamble to 38 C.F.R. § 4.71a, DCs 5216-5230 provides in particular, that: (1) For the little finger (digit V), zero degrees of flexion represents the finger fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. 38 C.F.R. § 4.71a, Table "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand." (2) 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. Id. (3) Evaluation of ankylosis of the little finger: (i) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulations of a bone, evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto; (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, evaluate as unfavorable ankylosis; (iv) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, evaluate as favorable ankylosis. (5) If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation. Id. Under DC 5227, a noncompensable rating is warranted for either unfavorable or favorable ankylosis of the ring finger. 38 C.F.R. § 4.71a, DC 5227. A note to DC 5227 directs that consideration should also be given to whether a rating for amputation is warranted and whether an additional rating is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. Under DC 5230, a noncompensable rating is warranted for any limitation of motion of the ring finger. 38 C.F.R. § 4.71a, DC 5230. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran's right ring finger limitation of motion has not met or approximated the criteria for a compensable rating at any time since the effective date of service connection. The Veteran reported during a November 2018 VA examination that he is right hand dominant and expressed that he is not able to fully flex the fingers of his right hand, he can't put his ring on because his right ring finger swells, it is hard to open his right hand due to pain in the mornings, he cannot screw things, and his right hand abilities are not as precise as they used to be. On examination, the Veteran's right ring finger showed pain on flexion but no evidence of pain with use of the hand, no additional loss of function or range of motion after three repetitions, hand grip of 4/5 strength, no muscle atrophy, and no ankylosis in any finger. Moreover, the Veteran's ring finger showed full extension at all three joints, and maximum flexion to 80 (out of 90) degrees in the MCP joint, 90 (out of 100) degrees in the PIP joint, and 60 (out of 70) degrees in the DIP joint. There are no scars related to the Veteran's hand disability and there are no other pertinent physical findings, complications, conditions, signs or symptoms. The Veteran does regularly use a hand brace on his right hand, but it is unclear if that is for his service-connected wrist condition or for the finger claim before the Board. The Veteran was not receiving any treatment or medication for his hand symptoms and the record does not show that he had undergone any surgery. While the Veteran does experience pain during flare-ups, they have no effect on range of motion. The above evidence reflects that there is a right ring finger disability manifested by pain, problems flexing his hand, and range of motion moderately outside normal range but normal for the Veteran's age. Moreover, any limitation of motion of the right ring finger alone warrants only a noncompensable rating under DC 5230 and the Veteran is already in receipt of the maximum possible rating under DC 5230 based on limitation of motion of the ring finger, by itself (i.e., a 0 percent rating). See 38 C.F.R. § 4.71a, DC 5230. Therefore, although the Veteran experiences pain, functional loss and minimal limitation of motion, a compensable rating pursuant to 38 C.F.R. § 4.59 is not for application when the applicable DC does not provide a compensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities, but only if they are rated under diagnostic codes containing a compensable rating). DC 5227 includes a note that the adjudicator should also "consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand." 38 C.F.R. § 4.71a, DC 5227, Note. Looking to the record, there is no evidence of ankylosis present at any point. Specifically, ankylosis was not shown in any finger on either hand in the November 2016 VA examination, nor is the Veteran's pain or limitation of motion severe enough to be comparable to ankylosis so as to be considered constructive amputation. The Board also notes that on his May 2017 NOD, the Veteran stated that he has had limited motion since 1977 and it is now worse. The Board interprets this to mean that the Veteran's right hand limited motion began in 1977 and has gotten worse since then, and not to mean it has gotten worse since the most recent VA examination in November 2016 six months earlier. Therefore, a remand for a new VA examination for worsening is not warranted. Lastly, as the Veteran is in receipt of the maximum schedular rating for limitation of ring finger motion under DC 5230, and a higher rating requires evidence of ankylosis or amputation, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45) are not for application. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). There is otherwise no evidence that the symptoms associated with the Veteran's right ring finger disability impact the function of any other finger or the overall function of the hand. In sum, the symptoms of the Veteran's service-connected ring finger limitation of motion have most closely approximated the criteria for a noncompensable rating under the applicable rating criteria. Hence, an initial compensable rating is not warranted at any time since the effective date of service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND For the following reasons, the Board finds that a remand is necessary for further development before the remaining claims can be decided. The Veteran contends that his MDD with depression, insomnia, and anxiety began in service and has consistently remained and gotten worse since service. He was seen in December 1976, during active duty, for symptoms including mild depression, an incident of suspected sleep walking, short term memory loss, moodiness, insomnia, irritability and inability to control his temper. The attending doctor noted he was mildly depressed, among other symptoms, and was diagnosed with immature personality with features of depression, anxiety, resentment and ego inflation. He was eventually separated from the Naval Air Station due to this diagnosis and a poor prognosis of improvement based on lack of insight and resistance to counseling, as well as a history of reckless behavior, such as riding out of control on his motorcycle. A July 2014 mental health outpatient assessment note described a history of insomnia (referring to the service treatment records), described current symptomatology of a decreased appetite, interrupted sleep, anxiety, irritability, agitation and anger, and diagnoses of generalized anxiety and insomnia. A November 2016 VA examiner diagnosed the Veteran with MDD recurrent with anxious distress where the Veteran described a history of sad mood, insomnia, negative thinking, pessimism, threats of self-harm and suicidality, poor energy, poor eating and sleeping hygiene, and maladaptive problem solving due to limited coping skills. The November 2016 VA examiner provided a negative medical opinion in a February 2017 addendum, concluding that the Veteran's MDD was less likely than not incurred or caused by his immature personality with features of depression, anxiety, resentment and ego inflation, referring to the in-service diagnosis. The examiner reasoned that personality disorders have high co-occurring rates with mood disorders, such as MDD, but the Veteran had experienced distressing events that in and of themselves would also contribute to depression symptoms and that given his history, his current MDD could have been caused by many combinations. There are several VA regulations relating to personality disorders. 38 C.F.R. § 3.303(c) provides that, "In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin." 38 C.F.R. § 4.127 provides that "personality disorders are not diseases or injuries for compensation purposes and... disability resulting from them may not be service-connected." However, the same regulation indicates that "disability resulting from a mental disorder that is superimposed upon . . . a personality disorder may be service-connected." Id. The question in this case is therefore whether the Veteran has disability superimposed upon his personality disorder or whether he has a current psychiatric disorder that is related to service separate and apart from his personality disorder. The VA examiner did not answer these questions and indicated that the Veteran's MDD could have been caused by a combination of factors without specifying what they were or the relationship between the MDD and any of the individual factors. The VA examiner did not discuss the many lay statements of record and the varied symptoms, to include sleep walking, short term memory loss, moodiness, irritability, inability to control his temper, and acting out wildly. Moreover, the cause of the Veteran's right-hand disability discussed above was, according to the in-service physician, a bad dream after which the Veteran woke up and thrashed his hand. For the foregoing reasons, the February 2017 medical opinion is inadequate, and a new medical opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Accordingly, this matter is REMANDED for the following action: Obtain an opinion from a psychiatrist or psychologist as to the nature and etiology of the Veteran's MDD with insomnia, depression and anxiety. If an opinion cannot be given without an examination, schedule a psychiatric examination to determine the nature and etiology of the Veteran's psychiatric disorder. The psychiatrist or psychologist should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's MDD is related to psychiatric symptoms in service that were separate and apart from the personality disorder. The psychiatrist or psychologist should also indicate whether the Veteran's MDD is superimposed on his personality disorder. A complete, thorough rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.