Citation Nr: 21025002 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-31 181 DATE: April 27, 2021 ORDER Entitlement to an initial compensable rating for status post open reduction and internal fixation (ORIF) fifth metacarpal, left hand, healed (hereinafter “left fifth finger disability”), to include on an extraschedular basis, is denied. FINDING OF FACT 1. The Veteran’s left fifth finger disability has been manifested by limitation of motion, pain on use, and decreased grip strength; there is no evidence of ankylosis, loss of use of the left fifth finger or hand; or limitation in functioning of his finger equivalent to amputation. 2. The Veteran’s left fifth finger disability does not result in disability that is so exceptional or unusual that the normal provisions of the rating schedule do not adequately compensate the Veteran for his service-connected disability. CONCLUSION OF LAW The criteria for an initial compensable rating for a left fifth finger disability, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to November 2009 and from January 2012 to January 2013, with additional service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision which, in pertinent part, granted service connection for a left fifth finger disability, evaluated as noncompensable, effective February 9, 2015. In November 2020, the Board remanded the matter for further development, to include obtaining a VA examination to assess the severity of the Veteran’s left fifth finger disability. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial compensable rating for status post open reduction and internal fixation (ORIF) fifth metacarpal, left hand, healed (hereinafter “left fifth finger disability”), to include on an extraschedular basis. The Veteran contends that an increased rating is warranted for his left fifth finger disability, to include on an extraschedular basis. Specifically, he contends that he has pain, loss of motion, and loss of grip strength such that his disability interferes with his employment and activities of daily living. The Veteran’s left fifth finger disability is evaluated under Diagnostic Code 5230 (limitation of motion). 38 C.F.R. § 4.71a. Under Diagnostic Code 5230, the maximum allowable rating for limitation of motion of the little finger is a noncompensable rating. Id. 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. In general, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. As discussed above, a noncompensable rating is the maximum schedular rating available for limitation of motion of the little finger under Diagnostic Code 5230. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not applicable where the highest rating based on limitation of motion has been awarded, and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board notes that VA examinations have shown that pain and lack of endurance contribute to functional loss in the Veteran’s left fifth finger after repetitive use and during flare-ups. However, even after repetitive use and during flare-ups, the Veteran maintains some range of motion, albeit reduced, in his left fifth finger such that it is not rendered immobile and is not more closely approximated by ankylosis. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (April 16, 2021). The Board has considered whether increased or additional ratings are warranted under other Diagnostic Codes. The June 2015, June 2017, and March 2021 examiners indicated that there was no loss of use of the left fifth finger such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5156. In addition, because the hand allows multiple digits to be combined into a single diagnostic code, the Board considered all possible higher digit combination criteria. There has been no evidence of unfavorable or favorable ankylosis involving multiple digits, including the little finger, to warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5223. Further, there is no evidence of involvement of two or more service-connected minor joints. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Specifically, a September 2014 imaging study revealed evidence of prior plate and screw fixation of the left fifth metacarpal fracture but otherwise, no acute findings. A June 2015 imaging study revealed no fractures or other acute osseous or articular abnormalities. There was evidence of a prior open reduction and plate and screw fixation of a little finger metacarpal fracture. The fracture appeared well-healed in anatomic alignment. There was no evidence of hardware failure or loosening. No other fractures were identified. The joint spaces of the hand and wrist were well preserved, and no articular erosions were seen. The carpal alignment was intact, and the soft tissues were unremarkable. As such, there is no evidence of involvement of two or more service-connected minor joints and a separate or higher rating under Diagnostic Code 5003 is not warranted. The Board has also considered whether a separate rating is warranted due to decreased grip strength. Flexion of the wrist and fingers, when rated as a muscle injury under 38 C.F.R. § 4.73, Diagnostic Code 5307 (muscle group VII), is rated as noncompensable for a slight disability and 10 percent for moderate disability. Moderately severe disability warrants a 30 percent rating for the dominant extremity and a 20 percent rating for the nondominant extremity. Finally, the maximum 40 percent is assigned for severe disability of the dominant extremity, and a 30 percent rating is assigned for severe disability of the nondominant extremity. 38 C.F.R. § 4.73, DC 5307. The evidence demonstrates that the Veteran’s left hand is his dominant extremity. The Veteran reports decreased grip strength due to pain from his left fifth finger disability. Upon examination in June 2015, June 2017, and March 2021, the Veteran’s grip strength was 5/5 and there was no evidence of muscle atrophy. As such, the Board finds that the Veteran’s grip strength is more closely approximated by a slight disability evaluated as noncompensable and that a separate or higher rating under Diagnostic Code 5307 is not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As previously discussed, none of the joints of the left hand are ankylosed, and the Board finds the overall disability picture does not warrant a rating by analogy to ankylosis of individual or multiple fingers. The Veteran’s left fifth finger has not met or more nearly approximated amputation. Further, although the Veteran has described pain and difficulty using his left hand, to include while gripping, he has not contended, nor does the weight of the lay or medical evidence show, that he has lost the use of the left hand. See 38 C.F.R. §§ 3.350, 4.71a, Diagnostic Codes 5126-5156, 5216-5227. In exceptional situations where the rating criteria is inadequate, it may be appropriate to refer the case for extraschedular consideration. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). These criteria have been broken up into two elements: (1) The schedular criteria must be inadequate to describe the claimant’s disability level and symptomatology and (2) there must be related factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 114 (2008); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). If both elements are met, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b). If either element is not satisfied, then referral is not warranted. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). The Board has considered the Veteran’s left fifth finger on an extraschedular basis. Here the schedular rating criteria used to rate the Veteran’s left fifth finger disability reasonably describe and assess the Veteran’s disability levels and symptomatology. Thus, the Board finds that the first Thun element is not satisfied. The Veteran’s service-connected finger disability was manifested by various signs and symptoms, to include limited motion, pain, and difficulty gripping due to his disability. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. As discussed above, the Veteran has been afforded the highest rating available for limited motion of the little finger. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not applicable where the highest rating based on limitation of motion has been awarded, and a higher rating requires ankylosis. Johnston, supra. The medical evidence does not show, nor does the Veteran contend, that there is ankylosis in the left fifth finger. Further, even if the Veteran did contend there was ankylosis, a higher rating is available for ankylosis of multiple fingers, to include the Veteran’s left fifth finger; however, the Veteran’s overall disability picture did not warrant such a rating. Finally, the Veteran’s left fifth finger did not meet or more nearly approximate amputation for which a higher is also available. The schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. In short, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. There is nothing exceptional or unusual about the Veteran’s service-connected left fifth finger disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. As such, the evidence of record does not warrant referral for an extraschedular rating.   The preponderance of the evidence is against an initial compensable rating for the Veteran’s left fifth finger disability, to include on an extraschedular basis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.