Citation Nr: 21007896 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-08 161 DATE: February 11, 2021 ORDER Entitlement to a compensable disability rating for status post left 4th metacarpal fracture is denied. FINDING OF FACT The Veteran’s service connected status post left 4th metacarpal fracture has not resulted in ankylosis or amputation. CONCLUSION OF LAW The criteria for a compensable rating for status post left 4th metacarpal fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2004 to September 2004, from January 2005 to November 2005, and from December 2007 to January 2009. A November 2013 rating decision granted service connection for status post left 4th metacarpal fracture and assigned a noncompensable rating, effective from March 21, 2013. The Veteran appealed the noncompensable rating. The Board of Veterans’ Appeals (Board) issued decisions remanding this issue in September 2018 and January 2020. Following completion of further development as directed in the Board remands, the case has returned to the Board for adjudication. Both the September 2018 and January 2020 are incorporated herein by reference. Entitlement to a compensable disability rating for status post left 4th metacarpal fracture Disability evaluations are determined by the application of a schedule of ratings which 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. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, throughout the appeal period, the Veteran has been rated under DC 5230. DC 5230 refers to limitation of motion of ring or little finger. The only rating available is zero percent, which is warranted for any limitation of motion. 38 C.F.R. § 4.71a, DC 5230. Higher ratings are available for amputation (under 38 C.F.R. § 4.71a, DC 5156), unfavorable ankylosis of multiple digits (under 38 C.F.R. § 4.71a, DCs 5216, 5217, 5218, 5219), and favorable ankylosis of multiple digits (under 38 C.F.R. § 4.71a, DCs 5220, 5221, 5222, 5223). On VA examination in August 2013, the Veteran reported that he experienced soreness and a sharp pain that radiated to his 5th finger. The examiner indicated that the Veteran is left-hand dominant and that the Veteran had reported that writing and typing caused pain. He also stated that he occasionally missed work due to pain in his left hand. Imaging studies available did not indicate any abnormal findings, to include arthritis, and the examiner found no decreased function, muscle mass, range of motion, or objective evidence of pain on examination. On VA examination in August 2020, the Veteran described his symptoms as arthritis in his hand and throbbing pain with residual pain increasing over time. He stated he had throbbing pain about every other day. The examiner measured the range of motion of the Veteran’s left 4th metacarpal and found no limitations in motion and no objective evidence of pain on motion, although there was evidence of tenderness or pain on palpation. The examiner found no evidence of additional loss of motion or function after repeated use or during a flare up. The Board acknowledges the Veteran’s pain. However, unlike other DCs, DC 5230 does not instruct that other diagnostic codes should be considered. Further, there is no evidence of arthritis or degenerative changes. The inclusion of criteria in one diagnostic code indicates that the Secretary’s exclusion of that criteria elsewhere was purposeful. Hudgens v. Gibson, 26 Vet. App. 558 (2014). Unfortunately, DC 5230 is not associated with any compensable rating, nor has the Veteran’s finger disability manifested with ankylosis or other compensable disability during the appeal period. A compensable rating is not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.