Citation Nr: 21069948 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-37 350 DATE: November 22, 2021 ORDER Entitlement to a compensable evaluation for extensor tendon strain, right fifth (pinky) finger is denied. FINDING OF FACT Review of the evidence of record shows the Veteran's extensor tendon strain, right fifth (pinky) finger is manifested by pain, stiffness and limitation of motion with no evidence of amputation or associated neurological diagnosis. CONCLUSION OF LAW The criteria for a compensable rating for extensor tendon strain, right fifth (pinky) finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service with the Army from April 1995 to August 1998, October 2001 to May 2002, May 2004 to March 2005, August 2007 to March 2011, March 2011 to May 2012, and November 2012 to September 2015. This matter is on appeal from a March 2016 rating decision. The Veteran was afforded a September 2019 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in July 2020 and January 2021 for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27 ; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extensor tendon strain, right fifth (pinky) finger The Veteran is currently service connected for extensor tendon strain, right fifth (pinky) finger evaluated as noncompensable under Diagnostic Code (DC) 5230. The Board notes that during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, the diagnostic codes used to evaluate the Veteran's left ring finger was not changed. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 ; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). 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). DC 5229 provides that a gap of one inch (2.5cm) 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 is rated 10 percent, which is the maximum rating provided under DC 5229. Id. DC 5230 provides for a noncompensable rating for any limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a. Higher ratings are available for favorable and unfavorable ankylosis. DC 5219 provides different ratings for unfavorable ankylosis of the index and long fingers: 30 percent rating for a major joint and 20 percent rating for a minor joint. See 38 C.F.R. § 4.71a , DC 5219. DC 5223 provides for a 20 percent rating for favorable ankylosis of the index and long fingers. See 38 C.F.R. § 4.71a , DC 5223. Higher ratings are also warranted for amputations of the index and long fingers. See generally 38 C.F.R. § 4.17a , DCs 5146, 5153, 5154. Multiple involvement of the interphalangeal, metacarpal and carpal joints of each upper extremity is considered a group of minor joints. 38 C.F.R. § 4.45 (f). The Veteran was afforded a January 2016 VA examination. The Veteran identifies as right hand dominant. The Veteran reported residual pin in his pinky finger with difficulty making a fist. The Veteran reported functional loss where he was unable to make a fist and it was difficult to grip things. Upon physical examination, the examiner did not find a gap between the finger and proximal transverse crease of the hand. The examiner noted the Veteran with pain on finger flexion but did not result in or cause functional loss. The Veteran demonstrated full strength with no muscle atrophy. The examiner did not find evidence of ankylosis in the right hand. The examiner noted the Veteran with multiple small scars on the right dorsal hand measuring 2 cm length by 1 cm width; the examiner noted that these scars were all well healed and nontender. The examiner did not find that functioning was so diminished that amputation with prothesis would equally serve the Veteran. Review of the diagnostic testing found no definite evidence of fracture with unremarkable soft tissue. The examiner found the Veteran's disability did not result in functional impact. The Veteran was afforded an October 2017 VA examination. The Veteran reported that his condition had worsened and described periods of time with pain and locking up. The Veteran stated that it was weaker and that he could not bend it. The Veteran described occasional pain and mobility issues with his pinky finger and outer part of the hand with non-tender scars. The Veteran reported flareups of pain, weakness, and locking up of the finger. The Veteran reported functional impairment where he was unable to make a complete fist and feels weak with a power grip. Upon physical examination, the examiner did not find a gap between the finger and proximal transverse crease of the hand. The examiner noted abnormal range of motion that contributed to functional loss in a "loss of complete grip with 5th finger." The Veteran demonstrated 4/5 strength related to his current disability without muscle atrophy. The examiner did not find evidence of ankylosis. The examiner did not find the Veteran with scars. The examiner did not find that functioning was so diminished that amputation with prothesis would equally serve the Veteran. The examiner found the Veteran with functional impact where the Veteran would have problems with heavy gripping activities and repetitive activities such as typing or writing. At the Veteran's September 2019 hearing, the Veteran testified to pain in his pinky finger that would shoot up the wrist; the Veteran indicated having sensation in the finger but that his finger would get stuck or "the tendon freezes, and I can't really bend it." The Veteran stated that this occurred on an intermittent basis. The Veteran also indicated that he has atrophy in his forearm. The Veteran stated that he could not move his wrist at time and would drop paperwork or plates at times. The Veteran also reported having painful scars. The Veteran was afforded a May 2021 VA examination. The Veteran reported current symptoms of severe pain that may worsen when gripping, squeezing or moving his hand; swelling; tenderness and bruising. The Veteran reported "obvious deformity such as a crooked finger"; stiffness or inability to move his fingers or thumb; and numbness in his hand or fingers. The Veteran did not report any flareups or functional impairment in his right hand. Upon physical examination, the examiner did not find a gap between the finger and proximal transverse crease of the hand. The examiner did not find evidence of pain or result in functional loss. The Veteran demonstrated full strength with no muscle atrophy. The examiner found no evidence of ankylosis. The examiner did not find that functioning was so diminished that amputation with prothesis would equally serve the Veteran. When asked to describe the functional impact on the Veteran, the examiner repeated the Veteran's statements that the condition would result in weakness, fatigue, loss of balance, lack of coordination, and lack of endurance so the Veteran cannot turn or twist. The Veteran stated that he would have difficulty bending, running, flexion and extension. The Veteran further stated that he was unable to perform normal house activities or walk the "whole where house as quick as before, end of having troubles of work for not performing work task." The Board notes that the reported impairments were only made in relation to his left hand and not his right hand. The Board notes that in an August 2021 VA examination for peripheral nerves, the Veteran reported symptoms of being unable to make a fist and having a limited ability to hold or grab small tools and objects. The Veteran complained of pain and numbness in his pinky finger as well as pain in his forearms and left leg. The Veteran demonstrated 4/5 grip strength with normal reflex, sensation, and no muscle atrophy. The examiner diagnosed the Veteran with bilateral ulnar nerve impingement and bilateral carpel tunnel syndrome. The examiner did not find any symptoms attributable to a peripheral nerve condition. The examiner opined that the Veteran's neurological impairment was not due to or proximately due to the Veteran's extensor tendon strain of the right 5th finger. The examiner noted the diagnosed neuropathies impairments affected the bilateral elbows and carpal tunnel syndrome of the upper limbs. The examiner noted the Veteran's reported symptoms of inability to make a fist or difficulty holding objects or turning keys/doorknobs; however, the examiner attributed these findings to the carpal tunnel syndrome and not due to his extensor tendon strain of the right 5th finger. After review of the evidence of record, the Board finds that the preponderance of evidence does not support findings of a compensable evaluation for the Veteran's right pinky finger. With regard to the Veteran's right pinky finger, the disorder is rated pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5230, which does not provide for a compensable rating for any limitation of motion of the ring or little finger. Under DC 5230, a noncompensable rating is the maximum rating for limitation of motion. The Board acknowledges the Veteran's reported symptoms, including painful motion; however, any level of limitation of motion of the right ring and little fingers results in noncompensable ratings for each finger respectively. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the ring and little finger). The United States Court of Appeals for Veterans Claims (Court) held in Sowers that because DC 5230 provided no minimum compensable rating, this trumped the general intent of section 4.59 to account for actually painful joints. This is directly applicable here as DC 5230 is the most appropriate DC for the Veteran's disabilities of the left ring and finger, and it does not provide for any minimum compensable rating. Thus, a compensable rating is not warranted on this basis. Additionally, Diagnostic Codes 5216-5227 are inapplicable because there is no evidence of ankylosis. The Board has also considered whether rating as amputation is warranted. However, the VA examiner of record have not found that the Veteran right hand and fingers would not be equally well served by amputation and, as such, the Board finds that the symptoms of the right 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 5126-5227 is not appropriate. Concerning scars and neurological impairment, the Board notes that an August 2021 rating decision granted service connection for finger scars. The August 2021 VA examiner noted the Veteran had diagnoses for neurological impairment but opined that the Veteran's right finger neurological symptoms were not due to his right finger disability. The Board notes the diagnosed bilateral ulnar nerve impingement and carpal tunnel syndrome are not service connected. The Board has considered the Veteran's statements regarding the severity of the Veteran's left ring finger. However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner's findings. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the Board finds the preponderance of the evidence is against a finding for a compensable evaluation for the Veteran's extensor tendon strain, right fifth (pinky) finger. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.