Citation Nr: 21011518 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-20 309 DATE: March 2, 2021 ORDER Entitlement to an initial compensable rating for Dupuytren Disease of the right hand with deformed fourth digit (hereinafter, right ring finger disability) is denied. FINDING OF FACT The record establishes the Veteran has pain and loss of motion in his right hand as a result of his right ring finger disability, but the preponderance of evidence is against a finding that he has ankylosis of the right ring finger. CONCLUSION OF LAW The criteria for a compensable rating for right ring finger disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5216-30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1978 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in March 2012 and September 2020 for additional development. The matter is now returned to the Board for further appellate review. The Board remanded this matter in September 2020 to provide the Veteran with an updated examination. In September 2020, VA scheduled the Veteran an examination; however, in December 2020 the Veteran cancelled the examination and did not reschedule. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase the claim shall be denied. 38 C.F.R. § 3.655(b). As this compensable initial rating claim originates from an original compensation claim, it will be rated based upon the evidence of record. See Turk v. Peake, 21 Vet. App. 565 (2008). Right ring finger Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The criteria for rating impairment of single or multiple digits of the hand are outlined in DC 5216 through 5230 of 38 C.F.R. § 4.71a. The Veteran's right ring finger disability is currently rated under DC 5230, which relates to limitation of motion of the ring or little finger. The Board notes DC 5230 does not provide for compensable ratings. The only other applicable diagnostic code for the ring finger as an individual digit is DC 5227, which relates to unfavorable or favorable ankylosis. DC 5227 also does not provide for compensable ratings, but a note to DC 5227 indicates consideration must also be given to 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 when ankylosis is present. VA provided the Veteran an examination in February 2008 to determine the functional impairment of his Dupuytren disease, specifically of his right ring finger. The examiner noted right ring finger proximal interphalangeal (PIP) joint flexion of 0 degrees to 110 degrees and metacarpophalangeal (MP) joint flexion of 0 degrees to 90 degrees. The examiner noted pain was the major functional impact, but otherwise noted the Veteran did not experience fatigue, weakness, lack of coordination or additional degrees of limitation of range of motion beyond the PIP and MP flexion measurements noted above. These measurements indicate the Veteran maintained range of motion of his right ring finger and thus did not experience ankylosis of the right ring finger. In June 2012, VA provided the Veteran an additional examination to determine the functional impairment of his service connected Dupuytren Disease. The Veteran reported increased pain while conducting activities that require gripping or torqueing of his right hand. The examiner noted the Veteran experienced limitation of motion but noted the Veteran does not experience ankylosis of his right ring finger. Based on the February 2008 and June 2012 VA examinations, the Board finds the preponderance of evidence is against a finding that the Veteran has right ring finger ankylosis, making DC 5227 inapplicable in this case. The Board acknowledges the Veteran has pain as a result of his Dupuytren Disease of the right ring finger. Although 38 C.F.R. § 4.59 provides that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, there is no compensable rating available under DC 5230, which relates to limitation of motion of the ring or little finger. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sowers v. McDonald, the Court held that 38 C.F.R. § 4.59 is not an independent provision that may be applied without an underlying diagnostic code. 27 Vet. App. 472 (2016). Since the applicable diagnostic code does not provide a compensable rating in this instance, an evaluation is not warranted under the provisions of 38 C.F.R. § 4.59. In sum, the record establishes the Veteran has pain and limited motion in his right hand as a result of his right ring finger disability, but the preponderance of evidence is against a finding that he has ankylosis of the right ring finger. DC 5227 and 5230 are the only diagnostic codes applicable to the ring finger as an individual digit, as granted in the Veteran's service connection award. Since the preponderance of evidence is against a finding of ankylosis, DC 5227 is not for application. DC 5230 does not provide for compensable ratings even when symptoms such as pain and limited range of motion are present. As a result, a compensable rating for Dupuytren Disease of the right ring finger must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.