Citation Nr: 21005892 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-20 583 DATE: February 2, 2021 ORDER Entitlement to a compensable rating for residuals of fracture to right third finger now claimed as a right-hand disability with loss of grip is denied. Entitlement to a compensable rating for residuals of laceration to the left thumb is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder also claimed as secondary to the service-connected hand disability is remanded. FINDINGS OF FACT 1. Residuals of fracture to right third finger now claimed as a right-hand disability with loss of grip are not manifested by amputation without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. 2. The Veteran’s laceration scar of the left thumb was not shown to be painful or unstable and was of an area less than 6 square inches. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of fracture to right third finger now claimed as a right-hand disability with loss of grip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. 2. The criteria for a compensable rating for residuals of laceration to the left thumb have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1979 to November 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Portland, Oregon (hereinafter, Agency of Original Jurisdiction (AOJ)). This appeal was previously before the Board in February 2018, at which time it was remanded for further evidentiary development. At that time, the appeal included the issues of entitlement to service connection for tinnitus and entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities. Upon remand, the AOJ granted service connection for tinnitus and assigned a 10 percent rating. This rating renders the issue of entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities is moot. As the grant of service connection for tinnitus represents a full grant of benefits sought, these issues are no longer in appellate posture. 38 C.F.R. § 3.324; see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In the February 2018 remand, the Board instruct the AOJ to afford the Veteran a contemporaneous VA examination to assess the current nature and severity of his hand disabilities. In May 2018, the Veteran underwent examinations for both hands. As such, the RO substantially complied with the Board’s February 2018 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Third Finger with Loss of Grip The Veteran is seeking a compensable rating for residuals of fracture to his right third finger now claimed as a right-hand disability with loss of grip. The Board finds that based on the evidence of record, the preponderance of the evidence is against finding a compensable rating is warranted. Under Diagnostic Code 5230, ring finger limitation of motion has been assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5230. This Diagnostic Code provides for a noncompensable evaluation for any limitation of motion of the ring or little finger. In order to receive a compensable rating for a disability of the ring finger alone there must be amputation. Under Diagnostic Code 5155, a 10 percent rating applies for amputation of the ring finger at the proximal interphalangeal joint or proximal thereto and a 20 percent rating applies with metacarpal resection (more than one half the bone lost). These ratings apply regardless of whether the disability affects the dominant or the non-dominant hand. See 38 C.F.R. § 4.71a, Diagnostic Codes 5155. Based on the evidence of record, the Board finds that the preponderance of the evidence warrants finding a noncompensable rating is warranted for the entire period on appeal. At different times during the appeal, the Veteran has stated that an increased rating is warranted due to his ongoing and worsening symptoms. The Veteran has reported difficulty grasping items, pain, stiffness and numbness in his right hand. He reported at times dropping items from his right hand, swelling, and his fingers locking up. Treating physicians noted the presence of swelling in the Veteran’s hand but associated his symptoms with his elevated blood pressure and/or medications. See VA Treatment Records dated May 21, 2012, July 18, 2012, and September 18, 2012. Subsequently, the Veteran was diagnosed with carpal tunnel and cervical radiculopathy along with chronic arthritis of the right hand. While treating physicians noted the Veteran’s associated symptoms of pain, numbness, and tingling of the right hand, physicians did not provide a probative link between the Veteran’s service-connected right third finger injury and the new diagnoses of arthritis, cervical radiculopathy, and carpal tunnel. Most recently, the Veteran was afforded a VA examination in June 2018 to assess the current severity of his right-hand injury. At that time, range of motion testing yielded normal results. While there was objective evidence of pain on both active and passive range of motion, it did not result in or cause functional loss. The examiner also noted localized tenderness on the top of the finger joint that was unrelated to the service-connected condition. Repetitive use noted no additional functional loss. Muscle strength testing was slightly diminished; however, the examiner found that the limitation in muscle strength was due to arthritis rather than the prior crush injury. No right hand ankylosis was reported. Ultimately, the examiner noted the Veteran’s reports of pain, stiffness, numbness, weakness, and diminished grip but found that these symptoms were not related to the Veteran’s service-connected right third finger injury. Rather, the examiner opined that the Veteran’s symptoms were related to his arthritis, carpal tunnel, and cervical radiculopathy, all of which were less likely than not related to his service-connected right third finger disability. There is no evidence that the VA examiners were not competent or credible, and as the examination reports were based on accurate facts and objective examinations of the Veteran, these are entitled to significant probative weight in determining the severity of the Veteran’s right fourth finger. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only evidence in the Veteran’s favor consists of his own lay statements. To the extent the Veteran attributes his current symptoms to his service-connected disability, the Board finds that as a lay witness, the Veteran is competent to attest to symptoms he experiences. However, he is not competent to opine as to which symptoms are attributable to his various hand disabilities. Such opinions require medical training and knowledge of diagnostic testing, pathology, and etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that the probative value of these statements is substantially outweighed by that of the objective medical evidence, which attributes the Veteran’s symptoms to unrelated disabilities. Based on the lay and medical evidence of record, the Board finds that a noncompensable evaluation is warranted for the entire period on appeal for the Veteran’s right ring finger. In this case, compensable evaluations are not available under Diagnostic Code 5230 for ring or little finger, limitation of motion. Rather, amputation is necessary in order to receive a compensable rating, which is not shown by the record. Additionally, 38 C.F.R. § 4.59 is not applicable because there is not a minimal compensable evaluation based on limitation of motion of the ring finger. In essence, even when we accept everything the Veteran has stated as true, a compensable evaluation is not warranted, as there has not been amputation of the Veteran’s right ring finger. Here, the criteria contemplate any limitation of motion of the ring or little finger and assign a noncompensable evaluation. For all the foregoing reasons, the Board finds that a compensable rating for the right ring finger is not warranted at any time during this appeal. The Board has also considered the applicability of other diagnostic codes but has found none. While there is arthritis and neuropathy of the right hand, the probative medical evidence establishes that there is no link between the Veteran’s service-connected right third finger disability and his other diagnoses. Additionally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). 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 granting a compensable rating for the Veteran’s service-connected right third finger. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Residuals of Laceration to the Left Thumb Likewise, the Board finds that a compensable rating his not warranted for service-connected residuals of laceration to the left thumb. The Veteran’s left-hand thumb laceration residuals are rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. The revised Diagnostic Code 7805 provides that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 are to be considered under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars in an area or areas exceeding 6 square inches (39 sq.cm.) are rated 10 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful warrant a 10 percent rating, while a 20 percent rating is warranted for three or four of such scars. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. Turning to the facts of the case, the Veteran’s treatment records are silent for any treatments related to the Veteran’s left thumb scar. While the Veteran often reported pain, numbness, weakness, and swelling of the hands, his treating physicians attributed his symptoms to his unrelated arthritis, carpal tunnel, and cervical radiculopathy, along with his hypertension and related medications. See VA Treatment Records dated May 2012 to May 2018. At the June 2018 VA examination, the laceration to the left thumb was neither painful or unstable and measured at 1.5 cm x 0.1 cm. The examiner acknowledged the Veteran’s reports of pain, numbness, weakness, and diminished grip, but found that the Veteran’s symptoms were associated with his unrelated disabilities, to include arthritis, carpal tunnel, cervical stenosis, and radiculopathy. Based on the evidence, the Board finds that a compensable rating for the Veteran’s laceration scar of the left thumb is not warranted. During the period, the Veteran’s scar did not exceed 6 square inches as contemplated by a higher evaluation under Diagnostic Code 7801 or Diagnostic Code 7802. The VA examination revealed that the scar was neither painful nor unstable, and there was no evidence of any limitation of function associated with the scar. The Veteran has claimed that his pain comes from this left thumb laceration scar, but the more probative medical examiner opinion indicated that the Veteran’s sources of pain are from nonservice-connected origin. Thus, the claim for a compensable rating is denied. REMAND Service Connection for an Acquired Psychiatric Disorder The Veteran is seeking service connection for an acquired psychiatric disorder on a secondary basis, which he contends is related to his service-connected right third finger disabilities. At a hearing in 2016, he reported the onset of depression about 5 years previous. However, at a VA examination in 2018, he reported that his depression began in service after his finger injury. After a review of the record in its entirety, the Veteran’s testimony in 2016 is deemed the most credible history regarding the onset of his depression. The Board notes that, since the 2018 VA examination, several precedential opinions have clarified that the concept of secondary service connection does not require a “permanent worsening” of disability but rather whether a service-connected disability results in any additional functional impairment associated with the nonservice-connected disability. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019); Saunders v. Wilkie, 886 F.3d. 1356, 1363 (Fed. Cir. 2018); Garner v. Tran, U.S. App. Vet. Claims LEXIS 81 (Jan. 26, 2021). This issue is remanded for opinion which complies with these court precedential opinions. Accordingly, this matter is REMANDED for the following: 1. Associate with the claims folder updated VA treatment records. 2. Obtain an addendum opinion as to whether it is at least as likely as not that the Veteran’s service-connected hand disabilities has 1) caused an acquired psychiatric disorder or 2) results in any additional functional impairment associated with his acquired psychiatric disorder (e.g., a medically discernible increase in symptoms). In so doing, the examiner should provide a rationale for the conclusion reached (rather than a recitation of the evidence) including whether there is any medical reason to accept or reject the Veteran’s belief that embarrassment caused by finger disfigurement has caused or made worse his acquired psychiatric disorder. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Orie, Chinyere 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.