Citation Nr: 21021195 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-39 446 DATE: April 12, 2021 ORDER An initial 10 percent rating for a right 5th finger disability is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran’s right 5th finger disability is more nearly approximated by amputation without metacarpal resection. CONCLUSION OF LAW The criteria for an initial 10 percent rating for a right 5th finger disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1960 to July 1962, to include service in Vietnam. In January 2020, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to an increase rating for right little finger for further development. Specifically, the Board instructed the regional office (RO) to refer the Veteran’s case to the Director, Compensation Service, for extraschedular consideration. Entitlement to an initial compensable rating for right 5th finger strain with ankylosis. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s disability is currently rated under Diagnostic Codes 5230-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). In this case, the RO appears to have relied on Diagnostic Code 5230 to provide that a rating based on limitation of motion of the little finger. The Board notes that, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes pertaining to the Veteran’s right little finger were not changed. Under Diagnostic Code 5230, limitation of motion of the ring or little finger, a noncompensable (0 percent) disability rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a. If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note 5. For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (1). When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (2). For evaluation of ankylosis of the index, long, ring, and little fingers, if both the MP and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at PIP joint or proximal thereto. If both the MP and PIP joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. If only the MP or PIP joint is ankylosed, and there is a gap of more than two inches (5.1 centimeters) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. If only the MP or PIP joint is ankylosed, and there is a gap of two inches (5.1 centimeters) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note 3. With ankylosis, consideration is also 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 the overall function of the hand. See Note to 38 C.F.R. § 4.71a, Diagnostic Code 5227. Diagnostic Code 5156 provides for a rating based on amputation of the little finger. A 10 percent rating is warranted for amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto. A 20 percent rating is warranted for amputation with metacarpal resection (more than one-half the bone lost). See 38 C.F.R. § 4.71a. As indicated above, the Board has recharacterized the Diagnostic Code to 5156 for amputation of the little finger consistent with the Note to 38 C.F.R. § 4.71a, Diagnostic Code 5227. The Board has considered the implications of changing the diagnostic code and recognizes that any such change must be explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, the change in code provides for a compensable rating, therefore there is no prejudice in changing the Veteran's rating Diagnostic Code to 5156. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention 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. The Veteran seeks entitlement to an initial compensable rating for his right 5th finger disability. He is currently assigned a noncompensable evaluation pursuant to Diagnostic Code 5230 based on limitation of motion of the little finger. As will be explained more fully below, the Board finds that the Veteran’s right 5th finger disability has more nearly approximated amputation of the little finger without metacarpal resection, which warrants a 10 percent rating under Diagnostic Code 5156. In pertinent part, the VA examinations of record, conducted in January 2016 and January 2021, documented pain with limitation of motion and functional loss of the right little finger. There was no limitation of motion of any other finger. There was objective evidence of localized tenderness or pain on palpation of the joint. There was also less movement than normal and weakened movement due to ankylosis. The ankylosis also caused interference with the overall function of the hand causing difficulty with grip. The examiners documented the Veteran’s reports of severe flare ups of the right hand that occur daily and last about 30 minutes. The Veteran had functional impairment with activities that involved repetitive firm gripping/holding, frequent/prolonged typing/writing, manipulative/dexterous manual tasks, and/or heavy lifting/carrying. It was also documented that he was unable to work in law enforcement due to grip. The January 2021 VA examiner also noted that there was objective evidence of pain on non-weightbearing and on passive range of motion. In April 2016, Veteran reported that, when he got his cast removed, the doctor told him that his right 5th finger was useless, and he might as well get it amputated because it would never be a functioning finger again. See April 2016 Statement in Support of Claim. [Parenthetically, the Board notes that the Veteran appears to have underwent surgery for his finger in August 1961. Therefore, he was likely to have a cast for his right hand during that time (several years prior to the period on appeal). There is otherwise no indication that the Veteran received or is receiving current treatment for his right 5th finger disability. Likewise, no additional development is warranted.] Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether a higher initial 10 percent rating is warranted under Diagnostic Code 5156. As indicated above, pursuant to Diagnostic Code 5227, ankylosis of the little finger warrants a noncompensable schedular evaluation. However, the note to Diagnostic Code 5227 states that the rater should also consider whether an evaluation is warranted based on amputation, resulting limitation of motion of other digits, or interference with the overall function of the hand. Consistent with this regulation, the Board finds that the impairment of the Veteran’s right 5th finger disability is best evaluated, by analogy, as an amputation under Diagnostic Code 5156. In that regard, the record shows that the Veteran’s right 5th finger disability has affected the overall function of the hand causing difficulty with repetitive firm gripping/holding, frequent/prolonged typing/writing, manipulative/dexterous manual tasks, and/or heavy lifting/carrying. These findings are relatively consistent with the Veteran’s statement that his right 5th finger is useless, and he was told to get his finger amputated. Accordingly, the Board concludes that an initial 10 percent rating under Diagnostic Code 5156 is warranted. There is no evidence of involvement of the right little finger metacarpal. Therefore, a higher 20 percent rating would not be warranted under Diagnostic Code 5156. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered whether the VA examination of record complied with Correia and Sharp. Significantly, however, to the extent that VA examination findings of record relative to the right 5th finger are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, the Board emphasizes that, as of the date of this decision, the Veteran is in receipt of a 10 percent rating for his right 5th finger. Significantly, the highest rating available for range of motion of the right 5th finger is a noncompensable rating. Likewise, a remand to obtain additional evidence regarding limitation of range of motion would not be useful. Extraschedular Consideration This claim was referred to the Director of Compensation Service (Director) for extraschedular consideration. In a November 2020 decision, the Director evaluated the evidence of record regarding the Veteran’s right 5th finger disability, indicated the evidence did not show frequent hospitalizations or marked interference with employment due to his service-connected atypical ear pain with tinnitus, and denied extraschedular evaluations. Although it appears that the Director made references to atypical ear pain with tinnitus, this appears to have been a clerical error, as the remainder of the Director’s decision specifically referenced the Veteran’s right 5th finger disability. Therefore, the Board finds that this clerical error was not prejudicial to the Veteran. The Board also notes that it is not bound by an adverse determination of the Director and must still review whether an extraschedular rating is appropriate. See Wages v. McDonald, 27 Vet. App. 233 (2015). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). In this case, the evidence shows functional impairment with activities that involve repetitive firm gripping/holding, frequent/prolonged typing/writing, manipulative/dexterous manual tasks, and/or heavy lifting/carrying and it was documented that he was unable to work in law enforcement due to grip problems. (Continued on the next page)   While the Board is sympathetic to the difficulties the Veteran's finger disorder presents for his employment, the Board finds that there is no evidence that these difficulties cause marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. The Veteran has not indicated or provided evidence to show that his right 5th finger caused periods of hospitalization. Moreover, although the VA examination reports indicate that the Veteran has functional impairment, these difficulties do not present such an exceptional or unusual disability picture that the regular rating schedule is rendered impractical. The Board acknowledges the Veteran’s contention that he took the police exam in 1962 and could have been a police officer, but for his right 5th finger disability. While this statement suggests that the Veteran was not able to become a police officer, it does not suggest that the Veteran’s right 5th finger has markedly interfered with his employment. Aside from the evidence showing functional impairment, there is otherwise no evidence to show that the Veteran’s right 5th finger disability caused marked interference in his employment. Accordingly, the Board finds that the Veteran's service-connected right 5th finger disability is not manifested by such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. The assigned schedular evaluations are, therefore, adequate. PAUL METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.