Citation Nr: 21071158 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-41 861 DATE: November 29, 2021 ORDER Entitlement to an initial 10 percent rating for service-connected residuals of torn ligaments in the middle finger of the left hand is granted, prior to October 28, 2015. Entitlement to a rating in excess of 10 percent disabling for service-connected residuals of torn ligaments in the middle finger of the left hand at any time during the appeal period is denied. FINDING OF FACT For the entire appeal period, the Veteran's limitation of motion of the left long finger has been manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating, but no higher, for limitation of motion of the left long finger have been met for the period prior to October 28, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. The criteria for a rating in excess of 10 percent for limitation of motion of the left long finger have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from December 1979 to June 1987, and from April 1988 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in April 2018; a transcript of that hearing is of record. The Veterans Law Judge who conducted the April 2018 hearing has since retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As the VLJ who conducted the April 2018 hearing has since retired, she cannot participate in the adjudication of the claim. As such, in September 2021, the Board of Veterans' Appeals (Board) sent the appellant a letter requesting that he indicate whether he desired another opportunity to testify at a hearing before the Board and a new VLJ, or if he wanted the Board to proceed with the adjudication of his appeal. The Veteran did not respond to this correspondence. Therefore, the Board will proceed with adjudicating the appeal. 1. Entitlement to an initial compensable rating for service-connected residuals of torn ligaments in the middle finger left hand prior to October 28, 2015, and in excess of 10 percent disabling thereafter At the outset, the Board notes that upon remand, the Veteran was granted an increased rating of 10 percent for painful motion of the long finger, effective October 28, 2015, pursuant to 38 C.F.R. § 4.40; §4.45; §4.49. See July 2021 RD. This is the highest schedular evaluation allowed under the law for limitation of motion of the long finger. (38 C.F.R. § 4.69, 38 C.F.R. § 4.71a). Relative to said effective date, where the law or regulation changes after a claim has been filed or reopened, the effective date for any increase based upon the revised regulations cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110 (g); VAOGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). However, retroactive effective dates are permitted, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Here, effective October 28, 2015, a minimum compensable evaluation is to be assigned for a subjectively painful joint. See Petitti v. McDonald, 27 Vet. App. 415 (2015). The Court's holding in Petitti is not a liberalizing law but rather a binding interpretation of a law that was in effect in January 2013, and therefore 38 U.S.C. § 5110 (g) is not for application. In order to grant an earlier effective date based on new case law, the claim had to have been pending on or before the date the precedent case was decided. Here, the Veteran's increased rating claim was pending prior to Petitti being decided, and as the evidence of record indicates objective evidence of painful motion of the left middle/long finger during the period prior to October 28, 2015, the Board finds the Veteran is entitled to the minimum compensable rating for limitation of motion of the left long finger pursuant to 38 C.F.R. § 4.40; §4.45; §4.49. See September 2013 RD; July 2013 VA examination report. As to whether the Veteran is entitled to a rating in excess of 10 percent pursuant to the applicable rating criteria, limitation of motion of the middle finger is rated under Diagnostic Code 5229. Under DC 5229, a 10 percent rating is warranted for a gap of one inch 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. A noncompensable rating is warranted with a gap of less than one inch between the finger tip 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. The Board notes that 38 C.F.R. § 4.71a was amended effective February 7, 2021, but the rating criteria under DC 5229 did not change. The increased, and already assigned 10 percent disability rating for both periods on appeal for the Veteran's service-connected disability is the maximum schedular rating permitted under Diagnostic Code 5229; accordingly, no higher rating is for consideration. A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered whether a higher rating may be available under alternative diagnostic codes. Currently, a rating in excess of 10 percent is not warranted as the Veteran is in receipt of the maximum rating for limited motion of his long finger. See 38 C.F.R. § 4.71a, DC 5229. Ratings in excess of 10 percent are provided by Diagnostic Codes 5224 and 5228; however, these provisions pertain to ankylosis of the thumb and limitation of motion of the thumb, respectively. In this case, the Veteran is not service-connected for any thumb impairment. Thus, Diagnostic Codes 5224 and 5228 are not for application. Likewise, there is no evidence of any impairment of multiple digits stemming from the Veteran's service-connected disability; on examination, all movements of the other digits were fully normal, with no ankylosis shown. Hence, the diagnostic codes that provide evaluations in excess of 10 percent for limitation of motion or ankylosis of multiple fingers are not for application. See 38 C.F.R. § 4.71a, DCs 5216-5223; July 2013 VA examination report; October 2017 VA examination report; November 2019 VA examination report; July 2021 VA examination report. (CONTINUED ON NEXT PAGE) Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the assignment of a 10 percent rating, but no higher, for limitation of motion, left long finger, is warranted for the period prior to October 28, 2015, based on functional loss due to pain. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate 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.