Citation Nr: 21021349 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-21 194 DATE: April 12, 2021 ORDER A 10 percent rating, but no higher, for residuals of left middle finger cyst excision is denied. FINDINGS OF FACT 1. The Rating Codesheet incorrectly references the Veteran’s disability as affecting the right middle finger; the Veteran’s injury occurred to the left middle finger. 2. The Veteran’s left middle finger disability causes painful motion. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for residuals of the left middle finger cyst excision are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5229 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from June 1995 to September 1995 and from March 1996, to March 1999. The matter comes before the Board of Veterans Appeals (Board) upon appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Officer (RO) in Muskogee, Oklahoma. The claim was previously before the Board and remanded for further development in May 2019. The Board observes substantial compliance with the remand directives such that the claim is appropriate for adjudication. Stegall v. West, 11 Vet. App.268, 271 (1998). As a preliminary matter, the claim has been captioned as excision of ganglion cyst of the middle finger of the right hand. This discrepancy has continued including the Veteran’s Form 9 in which she initially wrote left middle finger and then scratched it out, initialed the change, and wrote “right.” The service treatment medical records surrounding the treatment of the ganglion cyst all reference the left middle finger or LMF except for the specimen label for pathology which references the right middle finger. The 2020 VA examiner opined that the location of the excision was mislabeled on the pathology specimen as all other documentation, including the procedure report, reflects that a cyst was excised from the left middle finger. In addition, the 2020 VA examiner observed and described the excision scar measurements on the left long finger. The term long finger is used in the regulations and examination report and is interchangeable with the term middle finger used in the service treatment records. Accordingly, the claim has been recharacterized in accordance with the evidence of record (i. e., left middle finger). Laws and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran contends that her left middle finger symptoms are more severe than contemplated by her noncompensable disability rating. Diagnostic Code 5229, for limitation of motion for both the major and minor side of the long finger, provides for a noncompensable rating for a gap of less than one inch (2.5 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 no more than 30 degrees. A rating of 10 percent is warranted for a gap of one inch (2.5 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. 38 C.F.R. § 4.71a, Diagnostic Code 5229. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). VA treatment records reflect a November 2019 primary care visit for medication followup in which the Veteran offered a complaint of arthritis in her middle finger. Upon examination the finger was tender to palpation at the first metacarpal phalangeal (MCP) joint with normal, painless range of motion. The Veteran was prescribed topical Voltaren instead of Motrin for her finger pain. In January 2020 the Veteran underwent a VA examination for hand and finger conditions. Diagnoses of residuals of ganglion cyst left middle finger and left middle finger tenosynovitis were confirmed. The Veteran indicated that the condition began after the excisional surgery with pain in the finger around the joint radiating to the hand. The Veteran noted symptoms of “dullness” in the finger, inability to bend the joint and arthritic pain and stiffness at the joint. As a result of these symptoms, the Veteran stated that she experienced functional impact with difficulty pulling and grabbing things. She described her flare-ups of the left hand as precipitated by weather changes which occur two to three times a week and last a few days. Imaging studies performed showed no arthritis or abnormalities of the left or right hand. Upon examination both the left and right long finger had normal initial range of motion with the left long finger demonstrating pain, but no functional loss. There was no tenderness of the right long finger but objective evidence of moderate localized tenderness to palpation of the proximal interphalangeal (PIP) joint in the left long finger with swelling and pain with range of motion Observed repetitive use testing elicited pain in the left hand long finger PIP joint with that decreased flexion to 70 of the 100 expected degrees. Flare-ups caused a further decrease to 60 of the 100 degrees of expected flexion of the PIP joint with associated additional functional loss. There was no loss of muscle strength evident. The scar on the left middle finger was 2 cms by .5 cms and was stable. Thus, a separate rating is not warranted in the absence of a scar that is painful, unstable, or less than 39 square cms total area. There was objective evidence of pain on passive range of motion testing of the left long finger. There was evidence of pain on non-weight bearing testing of the left but not the right long finger. There was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right hand. Left hand middle finger active range of motion was decreased 70 degrees of flexion with non weight bearing, and 60 degrees of flexion with weight bearing in the PIP joint. All other joints exhibited full range of motion. Passive weight bearing motion for the left middle finger showed flexion to 70 degrees. Passive non weight bearing middle finger range of motion showed flexion to 60 degrees. After review of the physical exam, and medical records, the examiner estimated that during flare ups of the left middle finger, the Veteran cannot lift more than 10 pounds with the left hand and she is unable the repeatedly grip and lift items greater than 10 pounds on the left. She is limited in typing no more than 30 minutes at a time on the left. Repetitive motion activity is limited to 30 minutes or less at a time. The examiner did not observe a gap between the pad of the thumb and the long finger on either the right or left hand on initial range of motion, observed repetitive use, repeat use over time or with flare-ups. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Because the Veteran has credibly reported painful motion of the left middle finger, a 10 percent disability rating for her disability under Diagnostic Code 5229 is granted for the entire appeal period. 38 C.F.R. §§ 4.59, 4.71a. A 10 percent rating is the maximum rating available under Diagnostic Code 5229. There is no evidence of record that the Veteran had a single or multiple finger amputation in the left hand, or anatomical loss or loss of use of the left hand, or ankylosis of any of the digits of the left hand. Also, her only finger disability on the left hand is the middle finger. Therefore, the other Diagnostic Codes for the fingers do not apply. A rating in excess of 10 percent for the Veteran’s left middle finger disability is not warranted. Moreover, the Veteran’s scar associated with her left middle finger disability has not been found to be painful or unstable. As such, a separate compensable rating for the Veteran’s scar is not warranted. Finally, the Board notes that neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.