Citation Nr: 21074092 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 10-43 721 DATE: December 14, 2021 ORDER Entitlement to a temporary total evaluation based on surgery and need for convalescence for residuals, fracture, left ring finger is denied. Entitlement to a rating in excess of 10 percent for residuals of left ring finger fracture is denied. FINDINGS OF FACT 1. The June 2009 surgery was not treatment for the service connected left ring finger fracture disability. 2. The Veteran's left ring finger fracture is characterized by ankylosis of the left ring finger at the PIP joint, with decreased hand strength, pain, weakness, and stiffness and the inability to make a composite fist. CONCLUSIONS OF LAW 1. The criteria for a temporary total evaluation based on surgery and need for convalescence for residuals, fracture, left ring finger have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.30 (2021). 2. The criteria for a rating in excess of 10 percent for residuals of left ring finger fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5223 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to March 1983. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an August 2018 hearing. The transcript of the hearing is of record. September 2018 and January 2021 Board decisions remanded the issues on appeal for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a temporary total evaluation based on surgery and need for convalescence for residuals, fracture, left ring finger The Veteran contends that he is entitled to a temporary total disability rating due to a June 2009 hand surgery that required convalescence and which he contends was treatment for his service connected left ring finger fracture. For the reasons that follow, the Board finds that a temporary total evaluation is not warranted. A total disability rating (100 percent) is assigned under 38 C.F.R. § 4.30 when treatment of a service-connected disability results in at least one-month convalescence; surgery with severe postoperative residuals; or immobilization by cast, without surgery, of one or more major joint. 38 C.F.R. § 4.30 (a). April 2008 private treatment records noted clawing of the ring and little finger and fusion of the PIP joint of the ring finger. Additional April 2008 private records noted that nerve conductions showed bilateral carpal tunnel syndrome (CTS) and bilateral ulnar neuropathies. The providers discussed the possibility of surgical decompression of the median and ulnar nerves and noted the existing ring finger fusion of the PIP joint, indicating that it allowed them to do a tendon transfer. Private treatment records show that the Veteran then underwent surgery in June 2009. April 2009 pre-operative records noted prior fusion of the PIP joint of the ring finger and said that the Veteran was also beginning to show clawing in the ring and little fingers. Additional April 2009 records stated that the Veteran was there for follow up of ulnar neuropathy clawing and CTS. The provider found subluxation of the ulnar nerve and recommended transposing it. The provider also recommended carpal tunnel release and anti-claw transfers, including transferring superficialis from the middle finger to the ring and little fingers to bring fingers out of the hyperextended position. May 2009 records stated that the Veteran wanted surgery, and he was scheduled for a subcutaneous transposition of the ulnar nerve with a carpal tunnel release and transfer of the superficialis of the middle finger to the ring and little fingers. June 2009 private treatment records indicate that the surgery was performed, and the Veteran was now post-transposition of the ulnar nerve for "flexion of the clawing of his ring and little finger." The record indicates that the Veteran also had carpal tunnel release. The provider stated that the Veteran would be out of work for 12 weeks for healing. Additional June 2009 records again noted that the Veteran was s/p the subcutaneous transfer of the left ulnar nerve, noting an original injury many years ago as well as a history of surgeries in 2003 and 2007. The provider noted that the Zancolli transfer was to address the left hand clawing. July 2009 follow up records noted the Zancolli transfer little finger, carpal tunnel release and subcutaneous transposition ulnar nerve. October 2009 records show that the Veteran asked about the etiology of his clawing. The provider stated that it could be due to direct trauma or to the ulnar nerve at the elbow (not related to an injury). The provider also stated that it "could have been the result of injury to his hand." As noted in the January 2021 Board decision, the provider's use of the word "could" renders the opinion speculative and inadequate for review. August 2012 VA treatment records noted a history of hand surgery, with the fusion of the ring finger in 2007 and the June 2009 surgery, which was characterized as a carpal tunnel release, ulnar nerve transposition and transfer of the FDS from the middle to little finger. May 2016 VA treatment records noted a history of ulnar nerve transposition in 2009 and carpal tunnel surgery with residual symptoms of left hand pain and numbness. A March 2021 VA opinion found that the Veteran's 2009 surgery treatment for ulnar neuropathy, not the service connected left ring finger fracture. The examiner explained that the Veteran had two separate issues causing his hand problems and that ulnar neuropathy was completely unrelated to the hand injury, resulting instead from nerve impingement at the elbow. As a basis for the finding that they were unrelated, the examiner noted that the locations were anatomically distant and that there was no EMG evidence of nerve involvement below the elbow. Having found that the ulnar neuropathy was separate from the service-connected hand disability, the examiner explained that the clawing of the left hand was due to the ulnar entrapment and CTS, again explaining that the Veteran's orthopedic condition would not cause clawing. The opinion specifically addressed the private provider's statement that the clawing could have been due to hand injury, stating that it was a general, nonspecific opinion and did not reflect the mechanism of injury. Regarding the mechanism, the opinion said that the Veteran sustained a "jamming" injury to his hand playing basketball, and that type of injury would not involve the ulnar nerve at the elbow. The examiner then noted that the left ring finger was ankylosed and had limitations of pain, grip strength and endurance, but that the Veteran's other symptoms of numbness, tingling and dysthesia, in additional to the clawing, were due to neuropathy. At the outset, the Board finds that the VA opinion is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and the opinion is based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). In so finding, the Board notes that in the initial March 2021 report the provider checked the box "at least as likely as not" despite the detailed negative opinion, however the provider subsequently provided a May 2021 addendum opinion explaining that the box was checked in error and that the negative opinion was unchanged. The Board finds that this remedied the inconsistency in the March 2021 opinion. At the August 2018 Board hearing, the Veteran reported that the June 2009 surgery was for clawing of the long, ring and small finger and that he had the impression it was related to his service connected disability. He stated that he thought his service connected disability was for the ring and little finger. Due to the surgery, he reported, he was unable to use his hand for several months. Again, convalescence benefits are only available for service-connected disabilities, and in this case the preponderance of the competent evidence indicates that the June 2009 surgery involved treatment for ulnar neuropathy and carpal tunnel syndrome rather than the service-connected left ring finger fracture. The March 2021 VA opinion found that the surgery was associated with the ulnar neuropathy, and this conclusion is consistent with both the private records from the time of the surgery, which state that surgery was intended to address ulnar neuropathy clawing and carpal tunnel and that the surgery itself involved transposition of the ulnar nerve and carpal tunnel release. Subsequent private and VA treatment records continued to characterize the surgery as treating CTS and ulnar neuropathy. The March 2021 VA opinion also specifically found that the left hand clawing, which notably was characterized in the private treatment records as "ulnar neuropathy clawing," was due to the ulnar entrapment rather than the service connected disability, and further found that the ulnar entrapment itself was unrelated to the service connected disability. The competent evidence is therefore against finding that the surgery constituted treatment for the service connected left ring finger fracture, and a temporary total rating for convalescence is not warranted. While the Veteran contends that his surgery was related to the service connected ring finger fracture, as a lay person he is not competent to provide an opinion on a complex medical question such as the etiology of finger clawing. As noted above, the October 2009 statement by the private provider that the clawing could have been due to the ulnar nerve issues or to hand injury was speculative. The Board also notes that the provider did not give any explanation for that conclusion, in contrast to the March 2021 VA opinion which was based on thorough record review and provided a detailed explanation for the finding that the left hand clawing was the result of ulnar entrapment rather than the ring finger fracture. The Board therefore assigns more weight to the March 2021 VA opinion. The preponderance of the evidence is therefore against finding that the June 2009 surgery was treatment of a service connected disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, entitlement to a temporary total rating due to convalescence is denied. 38 C.F.R. § 4.30 (a). 2. Entitlement to a rating in excess of 10 percent for residuals of left ring finger fracture The Veteran contends that he is entitled to an increased rating for his left ring finger, which is rated at 10 percent disabling. As will be discussed in detail below, the Board finds that a rating in excess of 10 percent is not warranted. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the evidence of record shows that the Veteran's left hand is his dominant hand. The Veteran's left side is therefore his dominant side and considered the "major" extremity. For the entire period on appeal, the Veteran's left ring finger disability is rated under Diagnostic Code (DC) 5223, which rates favorable ankylosis of two digits of one hand. Under the DC, a 10 percent rating is warranted for favorable ankylosis of the major extremity involving the long and ring, long and little or ring and little fingers. A 20 percent rating is warranted for favorable ankylosis of the of the major extremity involving index and long, index and ring or index and little fingers. A 30 percent rating is warranted for the thumb and any finger. 38 C.F.R. § 4.71a, DC 5223. This is the highest rating available under the DC. Under DC 5155, for the major extremity, amputation of the ring finger without metacarpal resection, at proximal interphalangeal (PIP) joint or proximal thereto is assigned a 10 percent rating. A 20 percent rating is warranted for amputation with metacarpal resection (more than one-half the bone lost). Under the Amputation Rule, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. July 2009 VA treatment records noted that the Veteran could not make a composite fist due to his ring finger. Additional July 2009 records noted that the Veteran had 27 degrees of hyperextension in the ring finger, that the only joint with flexion was the metacarpophalangeal (MCP) joint and that the ring finger's tip was slightly numb. August 2012 VA treatment records noted increased pain and decreased range of motion in the left hand and problems with writing. The provider found left ring finger PIP fusion but noted that there was 60 degrees of flexion at the MCP joint. Grip strength and pinch were found to be decreased. Custom orthotics were discussed. August 2014 VA treatment records noted pain in the ring finger and May 2016 records note pain at the PIP joint. July 2018 VA treatment records noted fusion of the left ring finger at the PIP and DIP joint, with ongoing pain and weakness. The provider found that the Veteran could not make a composite fist and that the ring finger was malrotated with 30 degrees of flexion at the PIP. The MCP joint was noted to have passive movement from 10 to 30 degrees. The provider noted that the ring finger affected the small finger as well as the ability to grip. The provider recommended either fusing the finger at the DIP joint and either de-rotating the finger or amputating the finger and using the tendon to provide opposition to the thumb. Subsequent April 2019 records show that the Veteran declined surgery for the malrotated finger and asked for a buddy strap to keep it in alignment. October 2019 VA treatment records noted persistent difficulty using the left hand and assessed left hand contracture. A July 2009 VA examination found ankylosis in the PIP joint of the left ring finger at 40 degrees of flexion. The examiner found 25 degrees of angulation of the bone at the ankylosed PIP joint and noted the Veteran's reports of constant pain and loss of range of motion. The examiner found decreased hand strength, pain, weakness, and stiffness. The examiner found that the ring finger did not interfere with motion of other digits or overall hand function. The examiner noted the June 2009 tendon release and indicated that there was also loss of function due to the carpal tunnel changes. The examiner also found that the left thumb, index finger, long finger, and little finger were not ankylosed. A November 2019 VA examination found that the left ring finger was ankylosed in 10 degrees of flexion with no rotation or angulation. The examiner found that this resulted in limitation of motion/interference with the overall function of the hand, specifically noting problems with grip, but that it would not be equally well served by amputation. The examiner also found that the other fingers of the left hand were not ankylosed. A July 2020 VA examination found left ring finger ankylosis at the PIP joint at 20 degrees of flexion with angulation of the bone but no rotation. There was no ankylosis at the MCP joint and the examiner found flexion at the MCP joint limited at worst and upon consideration of pain to 50 degrees during flare ups. The examiner found that the left ring finger ankylosis resulted in an inability to make a fist/grip but that the Veteran would not be equally well served by amputation. The examiner also found that there was no ankylosis of any other finger. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the August 2018 Board hearing, the Veteran reported that his ring finger was fused, and that when he moves the ring finger the little finger goes along with it. He stated that the impairment made him unable to work due to lack of movement in his hand. The Board notes that the Veteran is competent to report lay observable symptoms such as lack of movement and assigns his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the competent evidence of record is against an evaluation above 10 percent. To warrant a 20 percent rating under DC 5223, the evidence would need to show ankylosis of the ring and index finger. While there is no question that the Veteran has ankylosis of the ring finger, there is simply no indication in the record that the Veteran has ankylosis of the index finger at any point during the period on appeal. All of the VA examiners specifically found that there was no ankylosis in any finger other than the ring finger and the July 2020 examiner found full range of motion in the index finger on range of motion testing. A rating above 10 percent is therefore not warranted under DC 5223. The Board has also considered whether evaluation as amputation is warranted. However, while the record clearly shows that the Veteran has problems gripping and manipulating objects as well as making a composite fist, the competent evidence does not indicate that his level of functional impairment is such that he would be equally well served by amputation with prosthesis. All of the VA examinations of record found that the Veteran would not be equally well served by amputation. While July 2018 VA records show that the Veteran's provider discussed amputation as a treatment option, it was not the only option suggested. Additional fusions and de-rotations were also proposed in order to improve function, and the record is silent for a finding that the severity of the Veteran's disability was equivalent to amputation. The discussion of amputation in that record, taken alone, therefore does not outweigh the repeated findings by the VA examiners that the disability was not functionally equivalent to amputation. Regardless, to the extent that the Veteran's fusion at the PIP joint could be considered functionally equivalent to amputation, the Board notes that under DC 5155, amputation of the major extremity ring finger at the PIP joint or proximal thereto only warrants a 10 percent rating and would therefore provide no benefit to the Veteran. In order to warrant a 20 percent rating under DC 5155, the evidence would need to show the equivalent of amputation with metacarpal resection (over half of bone lost). Here, the Veteran's left ring finger is ankylosed at the PIP joint, but he retains movement at the MCP joint as well as more than half of the finger bone. There is thus no indication that his disability is functionally equivalent to metacarpal resection, especially as the examiners consistently found that he would not be equally well served by amputation. Finally, given the competent evidence that the Veteran's right long finger disability caused problems with grasping and manipulating objects, the Board has considered whether special monthly compensation (SMC) for loss of use of one hand is applicable under 38 C.F.R. § 3.350(c)(iii). However, as the record does not show that the Veteran's loss of use is at a level that would prevent natural elbow action with prosthesis, SMC for loss of use of one hand is not applicable. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 10 percent for residuals of left ring finger fracture. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.