Citation Nr: 21010307 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-25 029 DATE: February 24, 2021 ORDER A higher evaluation for status post right index finger fracture with surgery, rated noncompensable prior to April 13, 2018; and 10 percent, thereafter, is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. Prior to April 13, 2018, there were no complaints of right index finger pain or painful motion, and motion was not limited to a gap between the right index fingertip and the proximal transverse crease of the palm of one inch or more; ankylosis was not shown. 2. From April 13, 2018 the Veteran’s status post right index finger fracture with surgery has been manifested by painful movement CONCLUSIONS OF LAW The criteria for higher evaluation for status post right index finger fracture with surgery, rated noncompensable prior to April 13, 2018; and 10 percent, thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1989 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in March 2020. There has been substantial compliance with the issue adjudicated below. Increased Rating A higher evaluation for status post right index finger fracture with surgery, rated noncompensable prior to April 13, 2018; and 10 percent, thereafter, is denied On August 29, 2008, the Veteran submitted a request for an increased rating for the service-connected residuals of a right index finger fracture. An October 2009 rating decision continued a noncompensable evaluation. Notice of this rating decision was issued in October 2009 and a timely notice of disagreement was received in September 2010. The RO issued a statement of the case (SOC) in December 2017; however, the Veteran did not perfect an appeal within 60 days. Ordinarily, the October 2009 rating decision would have become final. However, in the March 2020 decision, the Board inadvertently overlooked the prior SOC and remanded the matter for the issuance of an SOC in keeping with Manlincon v. West, 12 Vet. App. 238 (1999). Following the remand and additional development, the RO issued an October 2020 rating decision that increased the rating to 20 percent effective April 13, 2018, pursuant to 38 C.F.R. § 4.59, 4.71a, Diagnostic Code (DC) 5229. A supplemental statement of the case was issued as well. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). DC 5229 pertains to limitation of motion of the index finger or of the long finger. An evaluation of 10 percent under DC 5229 requires limitation of motion of the index finger or of the long finger, with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See 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. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran was afforded a VA examination in August 2009. He reported stiffness and loss of motion, but did not report treatment for his finger since discharge in 1991. Upon examination, range of motion of the DIP joint was 10 to 30 degrees both active and passive, and against resistance. Range of motion of the PIP joint was 0 to 90 degrees both active and passive, and against resistance. There was no pain, fatigue, or incoordination; but there was noted weakness with abduction of the index finger. The Veteran was able to touch the fingertips to the palm, apposition to the thumb, and had good strength. The examiner found no limitation of extension of the index finger and noted that it did not result in or cause functional loss. The Veteran was afforded a VA examination in August 2020 in accordance with the Board’s March 2020 remand. The Veteran reported hand pain that had worsened, which was constant multicomponent in nature with stiffness and difficulty moving. He reported that his pain was aggravated by lifting, carrying, pulling, and pushing. Physical examination revealed flexion of the MCP joint to 90 degrees, of the PIP joint to 100 degrees, and of the DIP joint to 40 degrees. There was no gap noted between the finger and proximal transverse crease of the hand at maximum finger flexion. Pain was noted on flexion, opposition with the thumb, and extension. No muscle atrophy or ankylosis was noted. The examiner found the Veteran’s disability affected his ability to grip and grasp. The Board finds that the evidence does not support the assignment of a 10 percent rating for the right index finger disability for the period prior to April 13, 2018. The evidence at that time, which included the August 2009 VA examination report and VA medical records, do not reflect limited index finger motion that nearly approximated the criteria for a 10 percent rating under DC 5229 (as a gap between the right index fingertip and the proximal transverse crease of the palm was not one inch or more and extension was not limited by 30 degrees or more). Further while the Board is cognizant of 38 C.F.R. § 4.59, the Veteran did not assert that the motion of his right finger was painful prior to April 13, 2018. He made no such assertion on his September 2010 NOD, on other correspondence submitted prior to the August 2020 VA examination, or in the January 2021 appellate brief. The August 2020 VA examiner found that the Veteran had painful motion during the examination and noted that the Veteran reported flare-ups and pain after lifting, carrying, gripping, and grasping. Consequently, the RO found that a 10 percent rating (the minimum compensable rating allowable under the rating schedule) was warranted pursuant to 38 C.F.R. § 4.59, as of April 13, 2018. The Board will not disturb this effective date, but finds no basis to assign the 10 percent rating prior to this period, as there was no assertion or evidence of painful motion. Review of the rating schedule indicates that there are no other applicable diagnostic codes that would permit a disability rating in excess of 10 percent. Under DC 5225 (index finger, ankylosis of), a 10 percent disability rating is assigned for unfavorable or favorable ankylosis of the index finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5225. A note to this diagnostic code instructs to also consider 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. Id. In the instant case, the Veteran does not have ankylosis. With respect to amputation, under DC 5153, disability ratings are assigned for amputation of the index finger. 38 C.F.R. § 4.71a, DC 5153. However, the evidence does not show that the functional impairment of his finger was such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. In a Correia v. McDonald, 28 Vet. App. 158 (2016) the Court emphasized that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. As 10 percent is the maximum schedular rating that may be granted for limitation of motion of the index finger under DC 5229 and the Veteran herein is being granted a 10 percent rating for his service-connected right index finger disability pursuant to 38 C.F.R. § 4.59, the holding in Correia need not be further considered. In closing, the Board finds that the criteria for a compensable evaluation for status post right index finger fracture with surgery, prior to April 13, 2018; and a rating in excess of 10 percent thereafter is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Board remanded the matter of entitlement to service connection for a low back disorder in March 2020. Unfortunately, there has not been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In accordance with the Remand, the Veteran was afforded a VA examination in August 2020. The examiner opined that the back condition is less likely related to service, because there is no objective finding in the service treatment records to support complaints, evaluation, and treatment of back condition during service. However, as noted in the prior Board remand, service treatment records clearly show treatment for low back pain. Specifically, in December 1990 the Veteran sought treatment for lower back pain after a motor vehicle accident. A February 1991 follow up indicated mild low back and left leg pain, which was apparently treated with a course of physical therapy. The August 2020 VA opinion and rationale still does not adequately address the Veteran’s in-service treatment for back pain. They are therefore inadequate as the Veteran’s service treatment records clearly show he was indeed seen while in service for back pain and treatment. The appeal must be returned once more for an addendum opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s low back disability is at least as likely as not related to service. This should include specific consideration of whether the current diagnosis is related to the treatment during service in December 1990 through March 1991 for back complaints after a motor vehicle accident. A rationale must be provided. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.