Citation Nr: 21011409 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-61 528 DATE: March 1, 2021 ORDER Entitlement to an increased, compensable rating of greater for residuals of a fracture of the left 4th metacarpal (left ring finger) is denied. FINDING OF FACT The Veteran’s residuals of a fracture of the left ring finger is manifested by limitation of motion, with pain. CONCLUSION OF LAW The criteria for a compensable rating for residuals a fracture of the left 4th metacarpal (left ring finger) disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from May 1976 to May 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). This case was previously before the Board. In an April 2019 Board decision, the Board denied the increased rating issue currently on appeal. The Veteran appealed the Board’s April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court partially vacated and remanded the Board’s earlier decision for the increased issue, pursuant to a May 2020 Joint Motion for Partial Remand (Joint Motion). The reasons for the Court’s Order and the specific instructions of the Joint Motion was due to the decision’s reliance on an inadequate examination, requiring a new examination. In October 2020, the Board remanded the matter to the AOJ to fulfill the examination requirements. The Veteran was afforded a November 2020 VA examination for his finger/hand and an additional examination for his wrist. The AOJ issued a December 2020 Supplemental Statement of the Case (SSOC) continuing the non-compensable rating. Subsequently, the claim was returned to the Board for readjudication. 1. Entitlement to an increased, compensable rating for residuals of a fracture of the left 4th metacarpal (left ring finger) The Veteran contends he is entitled to a compensable rating for the service-connected residuals of a fracture of his left ring finger. The Veteran further argues that the AOJ did not obtain the second and separate VA medical opinion as required by the October 2020 Board Remand. See January 2021 Arguments. 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 determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The United States Court of Appeals for Veterans Claims (Court) decision in Sharp addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Diagnostic Code 5230 governs the rating criteria for limitation of motion of the ring finger and little finger. This code only provides a noncompensable evaluation for all limitations of motion (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a. Therefore, the Veteran is in receipt of the maximum disability rating available under Diagnostic Code 5230. The Board must also consider other potentially available Diagnostic Codes. Diagnostic Code 5227 applies to ankylosis of the ring or little finger, whether favorable or unfavorable, and whether on the dominant hand or not. The only available rating under this Diagnostic Code is also noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5227. 38 C.F.R. § 4.71a, Diagnostic Code 5010 pertains to traumatic arthritis. Prior to February 7, 2021, Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis. Ratings for degenerative arthritis are to be based on limitation of motion and, if noncompensable by that method, a rating of 10 percent is warranted for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). For rating purposes, a hand is considered a group of minor joints. 38 C.F.R. § 4.45 (2017). The provisions for Diagnostic Code 5010 were amended, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). The new provisions of Diagnostic Code 5010 provide that post-traumatic arthritis is to be rated a limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Id. The Board finds that the November 2020 VA hand and finger examination meets the October 2020 Board remand requirements. The examination was conducted by a licensed physician and addressed each of the remand October 2020 Board remand directives. It also provided explanations for each of the findings sufficient to inform the Board of the examiner’s reasons and bases for all findings and that such opinions were based on sufficient facts and data of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the Veteran has been afforded an adequate examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board finds this examination is highly probative and sufficient for disposing of this appeal. During the November 2020 examinations, all findings, for both hands and wrists were normal except as follows. The Veteran’s left little finger exhibited maximum metacarpophalangeal (MCP) flexion to 20 of 90 degrees, proximal interphalangeal (PIP) flexion to 30 of 100 degrees, and distal interphalangeal (DIP) flexion to 20 of 70 degrees. The Veteran had a gap of 2 centimeters between the pad of his left thumb and fingers. The examiner noted that this gap is not between the finer and proximal transverse crease of the hand on maximal finger flexion. The left ring finger also exhibited pain on motion. There was no finding of additional loss of function after repetitive use testing, or during flare-ups for either finger, findings which speak directly to the requirements of Sharp. The examiner noted that with functional loss and repetitive use, the limitations of motion were the same as or estimated to be the same as those measured and identified above for both fingers. Therefore, the provisions of 38 C.F.R. § 4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki are found not warranted. The other VA examination completed in December 2016, although lacking the information necessary to evaluate the disability in accordance with Sharp, does not reflect more severe findings for the left ring finger disability, and need not be discussed. The Veteran’s VA treatment records are consistent with the findings from the November 2020 VA examination. Based on the evidence described above, the Board finds that the Veteran’s left ring finger disability does not warrant a compensable rating. As stated above, Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71, Diagnostic Code 5230. The Board acknowledges the Veteran’s report of limited motion, but the provisions of 38 C.F.R. § 4.59 do not apply when the applicable Diagnostic Code does not provide a compensable rating. Sowers v. McDonald, 27 Vet. App. 472 (2016). Therefore, a compensable rating under Diagnostic Code 5230 is not warranted. The Board has also considered whether a compensable rating might be available under another Diagnostic Code. As the Veteran retains some mobility in his left ring finger, by definition he does not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Even if he did, as stated above, the Diagnostic Code for ankylosis of a 4th finger also does not provide for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227. There is also no evidence that the Veteran has arthritis. The Board recognizes the Veteran’s lay statements of pain in his left ring little finger. However, as stated above, under Diagnostic Code 5230, he is already in receipt of the maximum schedular disability rating available for limitation of motion of the right little finger. Thus, even when considering the Veteran’s complaints of pain, the requirements for a compensable disability rating for the left ring finger are not met. Accordingly, the Board finds that the current noncompensable evaluation adequately compensates the Veteran for the pain and functional impairment caused by his service-connected disability. DeLuca, 8 Vet. App. at 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, to any extent that the November 2020 VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston 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 v. Brown, 10 Vet. App. 80, 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, 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. For the foregoing reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for compensable rating for his service-connected residuals of a fracture of the left ring finger. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.