Citation Nr: 21012955 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-26 854 DATE: March 8, 2021 ORDER The claim for an initial compensable disability rating prior to February 14, 2018, for residuals, fractured left middle and ring (third and fourth) fingers (non-dominant) is denied. The claim for an initial rating disability in excess of 10 percent from February 14, 2018, for residuals fractured left middle and ring (third and fourth) fingers (non-dominate) is denied. The claim for a total disability due to individual unemployability (TDIU) prior to January 11, 2011, is denied. FINDINGS OF FACT 1. Prior to February 14, 2018, the Veteran's residuals, fractured left middle and ring (third and fourth) fingers (non-dominant) manifested by subjective complaints of stiffness with changes in the weather and occasional pain without evidence of ankylosis or amputation loss of motion, or any additional functional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination. 2. Beginning February 14, 2018, the Veteran’s residuals, fractured left middle and ring (third and fourth) fingers (non-dominant) manifested by complaints of pain and stiffness with changes in the weather and moderate pain on palpation without evidence of ankylosis or amputation, loss of motion at most of 10 degrees flexion, or any additional functional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination. 3. The Veteran was gainfully employed full time prior to January 11, 2011, and his service-connected disabilities were not shown to preclude him from securing and following a substantially gainful occupation prior to that date. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating prior to February 2014, 2018, for residuals, fractured, left middle and ring (third and fourth) fingers (non-dominant) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5010, 5229-5223, 5229, 5230. 2. The criteria for an initial disability rating in excess of 10 percent beginning February 2014, 2018, for residuals, fractured, left fractured left middle and ring (third and fourth) fingers (non-dominant) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5010, 5229-5223, 5229, 5230. 3. The criteria for entitlement to TDIU prior to January 11, 2011, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to December 2009. This claim was remanded by the Board for additional development in January 2020 and has been returned now following substantial compliance with the remand order. 1. Entitlement to an initial compensable disability rating prior to February 14, 2018, for residuals, fractured left middle and ring (third and fourth) fingers (non-dominant) The Veteran contends that his left fingers disability is worse than currently rated, although he has not specifically reported how his symptoms are worse than contemplated by the noncompensable rating assigned during this period. The Board finds that the evidence does not support a finding of an initial compensable disability warranted during this period. Prior to February 14, 2018, a noncompensable rating is assigned under hyphenated diagnostic codes 5299-5223. Diagnostic Code 5299 indicates that the disability is not listed in the Schedule for Rating Disabilities, and it has been rated by analogy under a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 5223, which pertains to favorable ankylosis of two digits on one hand, provides a 10 percent rating when there is favorable ankylosis of the long and ring; long and little; or ring and little fingers. A 20 percent rating is warranted when there is favorable ankylosis of the index and long; index and ring; or index and little fingers and a maximum 30 percent rating for a major extremity and 20 percent for a minor extremity is warranted when there is favorable ankylosis of the thumb and any finger. Prior to February 14, 2018, the Veteran did not report and was not shown to be unable to move his middle or ring fingers or that his fingers were fixed in any direction. In addition, the VA examiners in January 2010 and April 2016 specifically stated that there was no ankylosis present in the left-hand fingers. As such, an initial compensable disability rating is not warranted under Diagnostic Code 5223 or any Diagnostic Code requiring ankylosis. The medical evidence does not demonstrate any evidence of arthritis in the left middle or ring fingers upon X-ray. Therefore, an initial compensable disability rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Regarding limitation of motion, the Board has considered Diagnostic Code 5229, which provides, regardless of whether it affects the major or minor hand, a 10 percent disability rating for limitation of motion of the long or index finger with a gap of one inch (2.5 centimeter (cm.)) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Id. However, the largest gap demonstrated during this period was noted by the 2010 VA examiner where his fingers were noted to come within 0.5 cm. from crossing over the medial transverse fold of the palm of the hand. The 2016 examiner found full range of motion or no gap, including following repetitive action and during flare-ups. The medical and lay evidence during this time has not demonstrated and the 2016 VA examiner specifically found that the Veteran’s left hand and finger functioning is not limited as a result of his left fingers disability. As such, an initial compensable disability rating is not warranted under this Diagnostic Code. Diagnostic Code 5230, which addresses limitation of motion of the ring or little finger, provides a maximum noncompensable disability rating. Consequently, the Veteran is not entitled to a compensable disability rating for any limitation of motion in the left ring finger, or the left ring and little fingers under this Diagnostic Code. Finally, throughout this period, there is also no evidence demonstrating that the Veteran’s disability in either finger more nearly approximates an amputation of any kind. While the Veteran has reported some occasional stiffness with changes in the weather and minimal pain every now and then, there has been no evidence of ankylosis and he has demonstrated full range of motion without any loss of function due to factors such as stiffness, pain, or flare ups. The Veteran specifically reported to the VA examiner that he does not experience any loss of function due to his left finger disabilities. He has also demonstrated full strength without atrophy. As such, the Board finds that an initial compensable rating is not warranted under any Diagnostic Code for amputation. Thus, based on the foregoing, the preponderance of the evidence is against finding that the Veteran’s residuals, fractured left middle and ring fingers has approximated the schedular requirements for an initial compensable disability rating at any time prior to February 14, 2018. As such, the claim is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to an initial disability rating in excess of 10 percent beginning February 14, 2018, for residuals, fractured left middle and ring (third and fourth) fingers (non-dominant) The Veteran contends that his left fingers disability is worse than currently rated, although he has not specifically reported how his symptoms are worse than contemplated by the 10 percent disability rating assigned during this period. The Board finds that the evidence does not support a finding of an initial 10 percent disability warranted during this period. Beginning February 14, 2018, a 10 percent disability rating is assigned under hyphenated diagnostic codes 5299-5223. Diagnostic Code 5223, provides that a 20 percent rating is warranted when there is favorable ankylosis of the index and long; index and ring; or index and little fingers and a maximum 30 percent rating for a major extremity and 20 percent for a minor extremity is warranted when there is favorable ankylosis of the thumb and any finger. Throughout this period, the Veteran did not report and was not shown to be unable to move his middle or ring fingers or that his fingers were fixed in any direction. In addition, the VA examiners in February 2018 and February 2020 specifically stated that there was no ankylosis present in the left-hand fingers. As such, an initial disability rating in excess of 10 percent is not warranted under Diagnostic Code 5223 or any code requiring ankylosis. The medical evidence does not demonstrate any evidence of arthritis in the left middle or ring fingers upon diagnostic testing. X-rays taken for the February 2020 VA examination revealed abnormal configuration to the distal phalanx of the ring finger and to the middle phalanx of the middle finger with no evidence of degenerative change. Therefore, an initial disability rating in excess of 10 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Regarding limitation of motion, Diagnostic Codes 5229 and 5230 do not provide for a disability rating in excess of 10 percent. The evidence does not demonstrate any limitation of motion of the left thumb related to the service-connected left middle and ring finger disabilities. Finally, throughout this period, there is also no evidence demonstrating that the Veteran’s disability in either finger more nearly approximates an amputation of any kind. While the Veteran has reported some occasional stiffness, weakness, and pain, particularly with strenuous use of his fingers, there has been no evidence of ankylosis, os of strength or atrophy. The Veteran has demonstrated full range of motion except for a loss of 10 degrees maximum flexion in each of the service-connected fingers without any change following repetitive use and without any additional loss of function due to factors such as stiffness, pain, or flare ups during the 2020 VA examination. The 2020 examiner specifically evaluated the pain on palpation to be moderate at most and indicated that there was no evidence of deformity, swelling, atrophy of disuse, instability of station, or limitation of motion due to ankylosis, adhesions, non-unions, or peripheral nerve injury. The Veteran specifically reported to the 2020 VA examiner that he only loses the function of his fingers occasionally when his activity is intensely strenuous. He has also demonstrated full strength without atrophy. As such, the Board concludes that his left middle and ring finger disabilities do not more nearly approximate an amputation of any kind for either finger and finds that an initial disability rating in excess of 10 percent is not warranted under any Diagnostic Code for amputation. Thus, based on the foregoing, the preponderance of the evidence is against finding that the Veteran’s residuals, fractured left middle and ring fingers has approximated the schedular requirements for an initial disability rating in excess of 10 percent at any time during the appellate period. As such, the claim is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. The claim for TDIU prior to January 11, 2011 VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. However, in this claim, the Veteran has reported consistently that he was employed full time plus overtime as a corrections officer until January 11, 2011. He has not reported that he was unable to obtain and maintain employment or that his work as a corrections officer was not gainful during this period of appeal before he left that position. Moreover, the medical evidence does not demonstrate that his service-connected disabilities caused unemployability during this time. The Veteran’s service treatment records, VA treatment records, and January 2010 VA examination are negative for any findings of unemployability due to his service-connected disabilities. While the Board recognizes the limitations that the Veteran faced due to his service-connected disabilities, these limitations were considered in the disability ratings he receives for those disabilities. The assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. See 38 C.F.R. § 4.1. In this case, the Board finds that the probative evidence supports a finding that Veteran was capable of performing the physical and mental acts required for employment, despite his service-connected disabilities, while he worked full time and more prior to January 11, 2011. There is no probative evidence that the Veteran was unemployable due to his service-connected disabilities during this time. Therefore, the claim for TDIU prior to that date must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.