Citation Nr: 21067837 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-07 146 DATE: November 5, 2021 ORDER An initial disability rating greater than 10 percent for service-connected limitation of motion of the left long finger status post laceration with tendon repair is denied. An initial compensable disability rating for the service-connected limitation of motion of the left ring finger status post laceration with tendon repair is denied. An initial compensable disability rating for the service-connected limitation of motion of the left little finger status post laceration with tendon repair is denied. An initial disability rating greater than 40 percent for the service-connected thoracic kyphosis is denied. An initial compensable disability rating for the service-connected deviated nasal septum due to blunt nasal trauma prior to June 23, 2017 is denied. FINDINGS OF FACT 1. The Veteran's left long finger disability has been manifested by full extension and no gap between the fingertip and the proximal transverse crease of the palm. 2. The Veteran's left ring finger disability has not been manifested by ankylosis of any finger joint. 3. The Veteran's left little finger disability has not been manifested by ankylosis of any finger joint. 4. The Veteran's back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes having a total duration of at least 6 weeks during any 12 month period. 5. Prior to June 23, 2017, the Veteran's deviated nasal septum had not been manifested by 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for the service-connected limitation of motion of the left long finger status post laceration with tendon repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. The criteria for an initial compensable disability rating for the service-connected limitation of motion of the left ring finger status post laceration with tendon repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 3. The criteria for an initial compensable disability rating for the service-connected limitation of motion of the left little finger status post laceration with tendon repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 4. The criteria for an initial disability rating greater than 40 percent for the service-connected thoracic kyphosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 5. The criteria for an initial compensable disability rating for the service-connected deviated nasal septum due to blunt nasal trauma prior to June 23, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to July 1991, and from May 1995 to June 2012. In March 2019, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In August 2021, the Board advised the Veteran that the Veterans Law Judge who held the March 2019 hearing was no longer employed by the Board and informed him of his right to another hearing. The Board further advised the Veteran that, if he did not respond within 30 days from the date of this letter, the Board would assume that he does not want another hearing and would proceed accordingly. To date, the Veteran has not requested another hearing. Thus, the Board will proceed with the adjudication of his appeal. In September 2019, the Board remanded the matters for further development. At that time, the disabilities of the Veteran's left fingers were evaluated together as limitation of motion of the left ring and little fingers. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). In a December 2020 rating decision, the agency of original jurisdiction (AOJ) separated out the disabilities of the left fingers and assigned a 0 percent rating for limited motion of the left ring finger and a 0 percent rating for limited motion of the left little finger, both effective July 1, 2012. The AOJ also granted service connection for limited motion of the left index finger and assigned a 0 percent rating effective December 9, 2019, and limited motion of the left long finger and assigned a 10 percent rating effective July 1, 2012. As the Veteran has not filed a notice of disagreement to the initial rating or effective date of the left index finger disability, those issues are not before the Board. Also in the December 2020 rating decision, the AOJ assigned a 50 percent rating for maxillary and sphenoid sinusitis effective July 1, 2012. As a 50 percent rating is the maximum allowed under Diagnostic Code 6513 for maxillary sinusitis (and Diagnostic Code 6514 for sphenoid sinusitis) and has been assigned from the day following the Veteran's separation from active service, the appeal for a higher initial rating for this disability is no longer before the Board. 38 C.F.R. § 4.97. The AOJ also assigned a 40 percent rating for thoracic kyphosis effective July 1, 2012. Thus, the appeal of that issue has been characterized as stated above. Lastly, while the Board previously remanded the issue of entitlement to a rating in excess of 10 percent for a deviated nasal septum due to blunt nasal trauma from June 23, 2017, a 10 percent rating is the maximum allowed under Diagnostic Code 6502 for a deviated nasal septum. 38 C.F.R. § 4.97. Thus, that issue is not before the Board. However, the issue of an initial compensable rating for the disability prior to June 23, 2017 remains on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Left long finger The limitation of motion of the Veteran's left long finger status post laceration with tendon repair has been rated 10 percent under Diagnostic Code 5229 for the entirety of the appeal period (effective from July 1, 2012). 38 C.F.R. § 4.71. Under that code, a 10 percent rating is assigned for limitation of motion of the long finger 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 for extension limited by more than 30 degrees. At a February 2012 VA examination, the Veteran reported a history of severing a tendon in the left hand and undergoing surgical repair. Examination revealed no limitation of motion of the long finger, and no gap between the finger and either thumb pad or proximal transverse crease. Repetitive use testing revealed no additional loss of range of motion. The examiner indicated that there was no functional loss of the long finger. Hand grip strength was 5/5. The examiner indicated that there was no ankylosis of the long finger. The examiner indicated that the Veteran's left long finger disability does not impact his ability to work. At a June 2017 VA examination, the Veteran reported limitation of motion of the left long finger. Examination revealed no limitation of motion of the long finger, and no gap between the finger and either thumb pad or proximal transverse crease. Repetitive use testing revealed no additional functional loss or range of motion. The examiner was unable to state without speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time or with flare-ups. The examiner explained that there is no conceptual or empirical basis for making such a determination. Hand grip strength was 5/5. The examiner indicated that there was no ankylosis of the long finger. The examiner indicated that the Veteran's left long finger disability does not impact his ability to perform any type of occupational task. At a December 2019 VA examination, the Veteran reported difficulty moving the left long finger with flare-ups that make lifting items difficult. Examination of the long finger revealed full extension and decreased flexion but no gap between the finger and either thumb pad or proximal transverse crease. Repetitive use testing revealed no additional functional loss or range of motion. The examiner stated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time and with flare-ups. The examiner indicated that range of motion of the left long finger would remain the same with repeated use over a period of time, but flexion of each joint would further reduce to less than 50 percent with flare-ups (with no change in extension). The examiner stated that the Veteran would have difficulty typing and lifting items with his fingers. Hand grip strength was 5/5. The examiner indicated that there was no ankylosis of the long finger. The examiner indicated that the Veteran's left long finger disability results in difficulty typing and lifting heavy items. VA medical records show complaints of left hand and finger pain but do not provide any specific range of motion findings. Diagnostic Code 5229 does not provide for a rating greater than 10 percent. Thus, a higher rating is simply not warranted for the Veteran's left long finger disability. Moreover, VA examinations have revealed full extension and no gap between the fingertip and proximal transverse crease of the palm. As Diagnostic Code 5225 for ankylosis of the long finger only provides for a 10 percent rating, a higher rating is not warranted under that code. Regardless, even considering functional loss due to pain and other factors, the service-connected left long finger disability has not resulted in such limitation of motion comparable to ankylosis of any finger joint. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In conclusion, an initial disability rating greater than 10 percent for the service-connected limitation of motion of the left long finger status post laceration with tendon repair is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left ring finger Left little finger The Veteran's left ring and little finger disabilities each have been rated 0 percent under Diagnostic Code 5230 for the entirety of the appeal period (effective from July 1, 2012). 38 C.F.R. § 4.71. Under that code, any limitation of motion of the ring or little finger is to be rated 0 percent. 38 C.F.R. § 4.71a. Thus, a compensable rating is simply not warranted. As indicated above, the Veteran's left ring and little fingers were examined by VA in February 2012, June 2017 and December 2019. While range of motion of both fingers may have been reduced on flexion, there was no gap between either finger and thumb pad or proximal transverse crease, and all examiners noted that there was no ankylosis of any finger joint. Diagnostic Code 5227 for ankylosis of the ring or little finger does not provide for a compensable rating. Regardless, even considering functional loss due to pain and other factors, examinations of the left ring and little fingers have not shown such limitation of motion comparable to ankylosis of any finger joint. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Thus, consideration of an evaluation for amputation is not warranted. Thus, initial compensable disability ratings for the service-connected limitation of motion of the left ring and little fingers status post laceration with tendon repair are not warranted. As the preponderance of the evidence is against the claims, these claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. In reaching this decision, the Board acknowledges that, in a June 2021 statement, the Veteran asserts that he is entitled to a higher rating for ankylosis of multiple digits under the Diagnostic Codes 5218 and 5222 for his left long, ring and little fingers. However, as noted above, examinations have not shown ankylosis of any fingers. Accordingly, application of those codes is not warranted. Thoracic kyphosis Effective July 1, 2012, the Veteran's thoracic kyphosis has been rated 40 percent under Diagnostic Code 5237. 38 C.F.R. § 4.71. The following ratings are available for Diagnostic Code 5243 under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. To warrant a higher 50 percent rating, the evidence must show that the Veteran's back disability results in unfavorable ankylosis of his entire thoracolumbar spine. While February 2012, June 2017, July 2019 and December 2019 VA examinations revealed that he has reduced range of motion of the spine, he retained range of motion in all planes, even after repetitive-use testing. Also, all examiners indicated that he does not have ankylosis of the spine. Moreover, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Note (5), General Rating Formula for Diseases and Injuries of the Spine. There is no evidence of any of the above in this case. While the December 2019 examiner indicated that the Veteran would have no range of motion of his spine with flare-ups, the examiner specified that the Veteran's spine would be at 0 degrees at each plane. Even if the Board were to find that such temporary immobility of the spine is comparable to ankylosis, the neutral position of the spinenot in flexion or extensionwould not result in difficulty walking because of a limited line of vision or any of the other criteria to qualify as unfavorable ankylosis. Thus, as the record stands, the Veteran's thoracic spine disability has not resulted in unfavorable ankylosis of his entire thoracolumbar spine. Even considering functional loss due to pain and other factors, the Veteran's thoracic spine disability has not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such a finding. The Board notes that the Veteran is competent to give evidence about observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant the next higher rating of 50 percent. Thus, a higher evaluation based on limitation of motion is not warranted. There is also no evidence that the Veteran's thoracic spine disability has resulted in incapacitating episodes having a total duration of at least 6 weeks during any 12 month period. The Veteran did not report having incapacitating episodes to that extent at any of the examinations, and the other medical evidence of record does not show such episodes for the duration required. Thus, a higher evaluation based on incapacitating episodes is not warranted. In conclusion, an initial disability rating greater than 40 percent for the service-connected thoracic kyphosis is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. In reaching this decision, the Board has considered whether separate compensable ratings are warranted for other neurological abnormalities (e.g., bowel or bladder abnormalities) associated with the service-connected back disability. As no such abnormalities have been shown, separate compensable ratings based on such associated problems are not warranted. Deviated nasal septum Effective July 1, 2012, the Veteran's deviated nasal septum due to blunt nasal trauma has been rated 0 percent under Diagnostic Code 6502. 38 C.F.R. § 4.97. The disability has been rated 10 percent from June 23, 2017. The question is whether a 10 percent rating is warranted prior to that date. Under Diagnostic Code 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. Thus, to warrant a 10 percent rating prior to June 23, 2017, the Veteran's deviated nasal septum must have been manifested by 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. Significantly, however, the evidence of record fails to show either finding. According to an February 2012 examination report, a VA examiner indicated that the Veteran's deviated nasal septum does not result in 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. While medical records show complaints of nasal obstruction, particularly on the left side, they do not show that there was complete obstruction on that side or 50-percent obstruction on both sides. It was not until a June 2017 VA examination that a finding of at least 50-percent obstruction of the nasal passage on both sides was made sufficient to warrant the current 10 percent rating effective from the June 23, 2017 date of that examination. Moreover, in a December 2019 medical opinion, a VA examiner reviewed the claims file and stated that, while the Veteran has had signs and symptoms of chronic sinusitis and a deviated nasal septum since 2012, he has not had 50-percent obstruction of the nasal passage on both sides. The examiner noted the Veteran's interpretation that a September 2011 CT scan showed greater than 50 percent obstruction bilaterally but observed that such interpretation is not consistent with the report. While the Veteran is competent to give evidence about observable symptoms such as difficulty breathing through his nose, he is not competent to interpret diagnostic tests such as CT scans. Layno, 6 Vet. App. 465. As such, the Board finds the VA examiner's interpretation of the CT scan to be of greater probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). Given the above, there is no objective evidence that the Veteran's deviated nasal septum resulted in 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side prior to the June 2017 VA examination. Thus, June 23, 2017 is the earliest date for the 10 percent rating. In conclusion, an initial compensable disability rating for the service-connected deviated nasal septum due to blunt nasal trauma prior to June 23, 2017 is not warranted. As the (CONTINUED ON NEXT PAGE) preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.