Citation Nr: 21007012 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-34 059 DATE: February 8, 2021 ORDER Entitlement to a disability rating greater than 10 percent for a back disability prior to August 13, 2019 and greater than 20 percent thereafter is denied. Entitlement to a rating greater than 20 percent for right lower extremity radiculopathy associated with residuals of a back injury is denied. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy associated with residuals of a back injury is denied. Entitlement to a disability rating greater than 10 percent for residuals of an injury to the right hand, to include status post fractured right ring finger and ankylosis right fifth finger (previously rated as fracture, right ring finger (major)) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to August 13, 2019, the preponderance of the evidence indicates that the Veteran’s back disability did not result in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or, incapacitating episodes due to intervertebral disc syndrome (IVDS). 2. From August 13, 2019, the preponderance of the evidence indicates that the Veteran’s back disability did not result in forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. The preponderance of the evidence indicates that the Veteran’s right lower extremity radiculopathy associated with residuals of a back injury was manifested by radiculopathy of the right lower extremity that resulted in no more than moderate incomplete paralysis of the sciatic nerve. 4. The preponderance of the evidence indicates that the Veteran’s left lower extremity radiculopathy associated with residuals of a back injury was manifested by radiculopathy of the right lower extremity that resulted in no more than moderate incomplete paralysis of the sciatic nerve. 5. The Veteran’s right hand disability, to include status post fractured right ring finger and ankylosis right fifth finger (previously rated as fracture, right ring finger (major)) have been manifested by pain, weakness, flare-ups, loss of grip, decreased dexterity, and limitation of motion; muscle impairment in the right hand has not been shown to be more than moderate in degree, and there is no evidence of favorable ankylosis of multiple digits. 6. The Veteran’s service-connected disabilities have produced total occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a back disability prior to August 13, 2019 and greater than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating greater than 20 percent for right lower extremity radiculopathy associated with residuals of a back injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for a rating greater than 20 percent for left lower extremity radiculopathy associated with residuals of a back injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for a disability rating greater than 10 percent for residuals of an injury to the right hand, to include status post fractured right ring finger and ankylosis right fifth finger (previously rated as fracture, right ring finger (major)) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71(a), 4.73, DC 5299-5309. 5. The criteria to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1988 to July 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In his September 2014 substantive appeal the Veteran requested a Travel Board hearing. In November 2016 correspondence, the Veteran indicated that he wished to withdraw his request for a hearing before the Board. The Board remanded these issues in May 2018 to obtain relevant medical records and undergo VA examinations. The RO associated VA, state, and private medical records. The Veteran underwent VA examinations in August 2019. There has been substantial compliance with the May 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal, the RO awarded a 20 percent rating for radiculopathy of the right and left lower extremities, effective August 13, 2019. While he did not enter a notice of disagreement as to the propriety of the assigned rating for such disability, the Board finds that it is part and parcel of his claim for an increased rating for his service-connected back disability. See General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), Note (1). Therefore, the Board has assumed jurisdiction over such matters. Increased Ratings, Generally Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s low back disability is rated pursuant to DC 5237. DC 5237 is part of the General Rating formal pertaining to the spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 340 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V. The Veteran’s radiculopathy is rated under Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. 1. Thoracolumbar Spine Disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent prior to August 13, 2019 and greater than 20 percent thereafter for a back disability. The Veteran underwent a VA examination in August 2019. The Veteran was diagnosed with IVDS. He reported experiencing severe, daily flare-ups that occurred while bending, standing, walking, or doing household chores. These flare-ups lasted up to two weeks and were alleviated by stopping the aggravating activity, medication, and rest. The Veteran’s flare-ups have resulted in reduced muscle strength, coordination, and regressed physical health. Initial range of motion (ROM) testing showed forward flexion measuring 90 degrees, extension measuring 10 degrees, right and left lateral flexion and rotation measured 10 degrees. Pain was noted on forward flexion, extension, right and left lateral flexion and rotation. The examiner found evidence of pain with weight bearing and localized tenderness or pain on palpation of the lumbar spine. The Veteran performed repetitive-use testing without additional loss of function or ROM. The examiner noted that the Veteran was not examined immediately repetitive use over time or during a flare-up. However, the examiner opined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. Pain, weakness, fatigue, incoordination, and weakness caused functional loss. After reviewing the Veteran’s medical records, lay statements, and a physical examination, the examiner opined ROM during repeated use over time and during a flare-up measured 90 degrees during flexion, and 10 degrees during extension, right and left lateral flexion and rotation. The Veteran had guarding and muscle spasms of the thoracolumbar spine resulting in abnormal gait or spinal contour. Additional factors contributing to his disability included less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran’s hip flexion muscle strength measured 4/5 and there was no evidence muscle atrophy, ankylosis, not episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran showed decreased sensation to light touch on the right upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. He tested positive for right and left leg raising. The examiner noted bilateral lower extremity moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran’s lower extremity radiculopathy involved the L4/L5/S1/S2/S3 nerve roots and was rated as “moderate” by the examiner. The Veteran’s disability interfered with running, jumping, climbing, bending, twisting, squatting, kneeling, prolonged positioning, and executing skilled movements. The examiner noted objective evidence of pain on passive ROM and pain on non-weight bearing. The record does not include VA examinations since the Veteran’s initial claim for increased ratings in 2010 because he was incarcerated when he submitted his claim for benefits and the RO did not arrange a VA examination to be conducted in prison. The RO did however obtain VA, state, and private treatment records and associated them with the Veteran’s claims file. The Board finds that, prior to August 13, 2019, a rating in excess of 10 percent for a thoracolumbar spine disability is not warranted. 38 C.F.R. § 4.71a, DC 5243. In order to obtain a rating in excess of 10 percent, the evidence must indicate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. ROM testing shows forward flexion exceeded 60 degrees and the combined range of motion was greater than 120 degrees. Furthermore, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour during this period. The Board has also considered whether higher ratings for the Veteran’s lumbar spine disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Range of motion results have consistently exceeded 60 degrees. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, the Veteran’s treatment records prior to August 13, 2019 do not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The preponderance of the evidence is against a finding that the Veteran experienced motion loss during flare-ups, described as limited movement which subsided, prior to August 13, 2019. The medical and lay statements do not indicate that the flare-ups are so severe as to more nearly approximate the 20 percent rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The VA examination reports indicate that the Veteran has significantly greater movement than the motion loss contemplated for the 20 percent rating criteria for DC 5237. The Veteran does not specifically identify more motion loss suggestive of spine ROM flexion to 60 degrees or less. 38 C.F.R. § 4.71a, DC 5237. For these reasons, a rating in excess of 10 percent is denied. Turning to the period since August 13, 2019, the Board finds that a rating in excess of 20 percent is not warranted. The Veteran’s thoracolumbar disability has not manifested forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine, including consideration of additional limitations after repetitive use and during flare-ups. During August 2019 VA examination, forward flexion was limited to 90 degrees. The Veteran’s VA and private treatment records during the appeal period have not reported ankylosis nor functional limitations that more nearly approximate limitation of flexion to 30 degrees or less. The Board has also considered whether higher ratings for the Veteran’s lumbar spine disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. The United States Court of Appeals for Veterans Claims specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” The Board acknowledges the Veteran’s reports of flare-ups during the August 2019 examinations. All procurable data was solicited from the Veteran regarding flare-ups regarding frequency, duration, characteristics, severity, and functional loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to the lay statements describing pain, interference with running, jumping, climbing, bending, twisting, squatting, kneeling, prolonged positioning, and executing skilled movements, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. As such, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. The Board has also considered the lay statements that the Veteran’s back disability warrants a higher rating and acknowledges that the Veteran is competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the lay evidence of record does not indicate functional limitations that more nearly approximate limitation of flexion to 30 degrees or less. To the extent that the Veteran has reported limitation of flexion, the Board finds probative the specific findings of the 2019 VA examiner that provided detailed findings regarding the extent of the Veteran’s limitations of range of motion. The evidence of record shows that the Veteran was diagnosed with IVDS. However, VA examinations and medical records do not show that the Veteran has been prescribed any bed rest to treat his lumbar spine disability during the course of his appeal, and there is no contention to the contrary. As such, a higher rating based upon incapacitating episodes is not warranted. 2. Bilateral Lower Extremity Radiculopathy. The August 2019 VA examiner indicated that the Veteran suffered no greater than moderate radiculopathy of the lower right and left extremities in 2019. The examiner specified that the Veteran experienced moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness which involved the L4-L5-S1-S2-S3 sciatic nerve roots. The examination was completed by a medical professional who formulated the conclusion based on a physical examination, review of the record, and interview of the Veteran. The Board finds the August 2019 VA evaluation to be competent and credible. The Board notes there was no evidence of lower extremity muscle atrophy. Based upon review of the evidence of record, including the Board finds that the Veteran’s right and left lower extremity radiculopathy severity is no more than “moderate.” In short, the preponderance of the evidence weighs against a finding that the Veteran’s symptoms warrant a rating greater than 20 percent for right and left lower extremity radiculopathy throughout the appeal period. As the preponderance of the evidence is against the claim for a rating in excess of 20 percent, the appeal must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. Residuals of An Injury to the Right Hand. The Veteran sought service connection for a right-hand disability, to include as secondary to service-connected right ring finger disability. The RO granted service connection for right fifth finger ankylosis in a March 2020 rating decision. The RO assigned a 10 percent disability rating under DC 5299-5309 for the Veteran’s residuals of an injury to the right hand, to include status post fractured right ring finger and ankylosis right fifth finger are currently evaluated as 10 -percent disabling under DC 5299-5309, which applies to muscle group injuries. See 38 C.F.R. § 4.73. DC 5309 governs Group IX muscle injuries. Group IX governs function of the forearm muscles which act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. Intrinsic muscles of hand include: thenar eminence; short flexor, opponens, abductor and adductor of thumb; hypothenar eminence; short flexor, opponens and abductor of little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei. A note to DC 5309 states that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. DC 5309 provides that Group IX muscle injuries should be rated based on limitation of motion (the criteria for which is discussed below), with a minimum 10-percent rating. See 38 C.F.R. § 4.73. Alternatively, DCs 5307 and 5308 govern, respectively, Group VII and VIII muscle injuries, which also involve the muscles of the forearm and hand. Group VII involves the muscles of flexion of the wrist and fingers and muscles arising from the internal condyle of the humerus: flexors of the carpus and long flexors of fingers and thumb; pronator. For the dominant extremity, a noncompensable (0 percent) rating is assigned for slight impairment of muscle function; a 10-percent rating is assigned for moderate impairment; a 30-percent rating is assigned for moderately severe impairment; and a 40-percent rating is assigned for severe impairment. See id. at DC 5307. Group VIII involves the muscles of extension of the wrist, fingers, and thumb; abduction of the thumb; and muscles arising mainly from the external condyle of humerus: extensors of carpus, fingers, and thumb; supinator. For the dominant extremity, a noncompensable rating is assigned for slight impairment of muscle function; a 10-percent rating is assigned for moderate impairment; a 20-percent rating is assigned for moderately severe impairment; and a 30-percent rating is assigned for severe impairment. See id. at DC 5308. The classifications of slight, moderate, moderately severe, or severe under DCs 5307-5308 are described in 38 C.F.R. § 4.56 (d). Slight impairment of muscles stems from a simple wound of a muscle without debridement or infection. It heals with good functional results, is superficial, results in minimal scarring, and shows no impairment of function or retained metallic fragments in the muscle tissue. There are no cardinal signs of muscle disability. See also 38 C.F.R. § 4.56 (c) (for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement). For moderate impairment, the type of injury is “through and through” or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residual debridement or prolonged infection. The record of moderate muscle impairment would show consistent complaint of one or more of the cardinal signs and symptoms of muscle disability; particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance; or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). Characteristics of moderately severe impairment include: through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaints would include evidence showing hospitalization for a prolonged treatment for wound; record of consistent complaint of cardinal signs and symptoms of muscle disability; and evidence of inability to keep up with work requirements. Objective findings include entrance and (if present) exit scars through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and impacted strength and endurance. 38 C.F.R. § 4.56 (d)(3). Characteristics of severe muscle impairment include all of the above, plus: evidence of wounds due to large or multiple missiles; shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts; intermuscular binding and scarring; consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe injuries; ragged, depressed, and adherent scars indicating wide damage to muscle groups; loss of deep fascia on palpation, loss of muscle substance, or soft, flabby muscles in wound area; muscles swell and harden abnormally in contraction; severe impairment of strength, endurance, or coordinated movements. If present, the following are also signs of severe muscle disability: X-ray evidence of multiple scattered foreign bodies; adhesion of scars; diminished muscle excitability to pulsed electrical current; atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Under Code 5230, any ring or little finger limitation of motion is rated 0 percent. Under Code 5227 ankylosis of a ring finger, favorable or unfavorable, is rated 0 percent. A Note following Code 5227 requires consideration of whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. See 38 C.F.R. § 4.71a, Code 5227, Note (1). The Veteran underwent a VA examination in August 2019. He reported experiencing severe right-hand flare-ups occurring every two to three weeks. These flare-ups last approximately three to four days and are precipitated by rain, cold weather, grasping heavy items, and completing household chores. The Veteran reported right hand pain is alleviated by pain medication and resting the right hand for one week. The Veteran stated he is unable to perform normal working movements and has reduced strength, speed, and coordination. He drops items and cannot withstand pressure on his right-hand. On physical examination, there was limitation of motion of the right ring finger and fifth finger. Pain was noted on examination for the ring and fifth fingers during finger extension and with use of the right hand. The examiner noted localized tenderness or pain on palpation of the ring and fifth fingers approximately, ranging from 7/10 to 10/10 severity. The Veteran performed repetitive-use testing without additional functional loss or range of motion. The examination was not conducted during repeated use over time, however, the examiner noted that the examination is medically consistent with the Veteran’s statements describing functions loss with repetitive use over time. Pain and incoordination significantly limited function ability with repeated use over a period of time, however, there was no additional loss of range of motion. The examiner noted a 12.5 cm gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran underwent the examination during a flare-up and it was noted that pain, and lack of endurance caused functional loss, however, there was no additional loss of range of motion. The examiner noted a 12.5 cm gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner found deformity and less movement than normal due to ankylosis, adhesions, etc., contributed to the Veteran’s disability. There was no evidence of muscle atrophy despite right-hand grip showing active movement with gravity eliminated. The right-hand little finger is ankylosed in extension with angulation of a bone but not with rotation. The examiner stated that ankylosis resulted in decreased grip and overall hand strength. There is no evidence of pain on passive range of motion, non-weight bearing, and right finger extension. The examiner did not perform right-hand passive range of motion testing as it was not medically appropriate because of no movement in the fifth finger. As noted above, the Veteran’s current 10-percent rating for residuals of fracture of the right index and fifth fingers, under DC 5299-5309, contemplates Group IX muscle impairment rated on the basis of limitation of motion. In this regard, his 10-percent rating is the maximum available rating under the DCs governing limitation of motion for fingers not involving the thumb. See 38 C.F.R. § 4.71 (a), DCs 5229-5230. (There is no evidence of thumb involvement secondary to the Veteran’s service-connected right-hand disability.) None of the evidence of record, lay or medical, demonstrates ankylosis of two or more of the digits of the Veterans’ right hand. As such, a higher evaluation based upon DCs 5216-5227 is not warranted. See id. at DCs 5216-5227. The Board recognizes the Veteran’s lay statements of pain, weakness, flare-ups, loss of grip, decreased dexterity, and limitation of motion in his right hand. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, as stated above, he is already in receipt of the maximum schedular disability ratings available for limitation of motion, and therefore there is no basis for a higher schedular evaluation under the applicable DCs. Accordingly, the Board finds that the current evaluations adequately compensate the Veteran for the pain and functional impairment caused by his service-connected right-hand disability. See DeLuca, 8 Vet. App. at 204-207; 38 C.F.R. §§ 4.40, 4.45, 4.59. To the extent the VA examination report of record failed to comply with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017), either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston v. Brown, 10 Vet. App. 80 (1997), indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, in this case, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis or other symptoms unrelated to limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. The Board acknowledges that, with respect to the rating criteria governing muscle impairment, the Veteran’s lay statements reflect that he has experienced some of the cardinal signs and symptoms of muscle disability, particularly loss of power, weakness, lowered threshold of fatigue, impairment of coordination, and pain. See 38 C.F.R. § 4.56 (c). However, the evidence in this case demonstrates that the Veteran’s residuals of a right-hand fracture have been manifested by no worse than moderate muscle impairment. The Board reiterates that the criteria for moderately severe muscle disability-the requirement for an evaluation in excess of 10 percent under DCs 5307 and 5308-contemplates a “through and through” or deep penetrating wound, which is not applicable here. See 38 C.F.R. § 4.56 (b). Moreover, there is no evidence that the Veteran’s injury was productive of debridement, prolonged infection, sloughing of soft parts, or intermuscular scarring. In terms of objective findings, there is no evidence of loss of deep fascia, muscle substance, atrophy, or muscle firmness at any time during the appeal period. Rather, objective findings on, have revealed no fascial defects, muscle damage, atrophy, or flaccidity of the hand/finger flexors of the right forearm muscle group. See id. As noted above, the Board accepts the Veteran’s lay reports regarding his right-hand symptomatology. However, as there is simply no evidence, lay or medical, of muscle atrophy or damage to the extent contemplated under the criteria for a rating in excess of 10 percent, the Board finds that his lay statements, in light of the entire record, do not support a higher rating for muscle disability. See id. The Board has considered whether a rating as amputation is warranted under the note following Code 5227. As the August 2019 examiner specifically found that remaining hand function exceeded what would be equally well-served by amputation and a prosthesis, a rating as amputation is not warranted. Remaining for consideration is whether a rating is warranted for interference with overall function of the hand. See Code 5227, Note (1). In sum, the Board finds that the criteria for increased ratings for symptomatology associated with the Veteran’s residuals of a fracture of the right hand have not been demonstrated. Accordingly, the claim for an increased rating must be denied. 4. TDIU A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.38 C.F.R. § 4.16 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is currently service connected for posttraumatic stress disorder (PTSD) (50 percent), back injury residuals (20 percent), right lower extremity radiculopathy (20 percent), left lower extremity radiculopathy (20 percent), and residuals of an injury to the right hand (10 percent). His total combined rating for compensation is 80 percent. He meets the schedular percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16 (a) based on his service-connected disabilities. Therefore, the remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation because of these disabilities. The Board finds the overall evidence is persuasive that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. The record shows that the Veteran hold a GED and has not been employed since military separation. An August 2019 VA examiner noted that the Veteran’s back disability interfered with running, jumping, climbing, bending, twisting, squatting, kneeling, prolonged positioning, and executing skilled movement. She also stated that the Veteran’s right-hand disability impeded grasping and gripping. The examiner opined that he can perform strenuous and sedentary activities if he can avoid his limitations. An August 2019 VA psychologist noted the Veteran’s below average intelligence, limited judgment, and inaccurate answers to simple questions. The examiner also noted that the Veteran stated the similarities between an apple and an orange is “different colour.” A private medical opinion from Dr. B.R., M.D. stated that the Veteran’s PTSD symptoms have worsened. In Dr. B.R.’s opinion, this worsening combined with the Veteran’s service-connected physical disabilities have prevented gainful employment. Given the Veteran’s service-connected disabilities precluding running, jumping, climbing, bending, twisting, squatting, kneeling, prolonged positioning, skilled movements, grasping, and gripping the Board finds that TDIU is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.