Citation Nr: 21027471 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-28 514 DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 10 percent for amputation of the right index finger is denied. FINDING OF FACT The Veteran's right index finger is amputated at the distal joint. CONCLUSION OF LAW The criteria are not met for entitlement to a rating greater than 10 percent for amputation of the right index finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5153. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. By way of relevant background, the Veteran's claim for a higher rating for his right index finger amputation was denied in a prior August 2019 decision of the Board of Veterans' Appeals (Board). The Veteran timely appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In February 2020, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication in accordance with the agreement in the JMPR. In granting the JMPR, the Court found that the Board had erred in not considering whether a separate rating was warranted for any neurological or other symptoms owing to the Veteran's right index finger amputation. In July 2020, to assist in making this determination, the Board in turn remanded this claim back to the local Regional Office (RO) including specifically for a VA examination allowing the medical examiner opportunity to comment on this. The remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A February 2021 RO rating decision issued on remand granted the Veteran service connection and separate ratings for peripheral neuropathy of his right upper extremity and for a scar, both as secondary to his right index finger amputation. Those grants are consistent with the February 2020 JMPR suggesting this additional impairment. A Supplemental Statement of the Case (SSOC) issued that same day, however, continued to deny a rating higher than 10 percent for the amputation of the right index finger. Thus, this claim is again before the Board. In April 2021, the Veteran filed VA Form 21-0996, Decision Review Request: Higher-Level Review, concerning the initial rating for his peripheral neuropathy. But that other claim is not before the Board and, consequently, is not being addressed in this decision. Entitlement to a rating higher than 10 percent for amputation of the right index finger Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's right index finger amputation is currently rated as 10-percent disabling under DC 5153, for single finger amputation, index finger. Handedness for the purpose of a dominant rating will be determined by the evidence of record or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the evidence of record shows that the Veteran's right hand is his dominant hand. Thus, his right index finger is on his dominant, so the rating criteria applied will be for the major (instead of minor) extremity. According to DC 5153 for the major extremity, a 10 percent rating is warranted for amputation through long phalanx or at distal joint. A 20 percent rating is warranted for amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto. A 30 percent rating is warranted for amputation with metacarpal resection (more than one half the bone lost). 38 C.F.R. § 4.71a, DC 5153. All other ratings higher than 10 percent under DCs pertaining to the index finger and hands require ankylosis of individual or multiple digits. See 38 C.F.R. § 4.71a, DCs 5216 5230. In November 2014, the Veteran was experiencing chronic pain in his finger that radiated proximally into his arm. On December 23, 2014, he underwent revision amputation of his right index finger with digital neurectomies. A temporary 100 percent convalescent rating consequently was assigned under 38 C.F.R. § 4.30, effective from December 23, 2014 to January 31, 2015, while he recuperated. After expiration of that temporary total rating, by operation of law, his right index finger amputation rating reverted to 10 percent as of February 1, 2015. 38 C.F.R. § 4.30 provides that a temporary total rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3), set forth below, effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. (a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence. (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (3) Immobilization by cast, without surgery, of one major joint or more. (b) A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a)(1), (2), or (3) of this section. (2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Adjudication Officer. The temporary total rating was initially awarded for the 1-month period following the December 23, 2014 surgery, through January 31, 2015. The Veteran asserted that his temporary total rating should be extended beyond January 31, 2015, due to his finger still being swollen and painful. In January 2015, an examiner noted the Veteran had undergone revision of right index finger amputation with neurectomy; he tolerated the procedure well and there were no complications. Later in January 2015, the Veteran had sensitivity and was working on range of motion. The examiner commented that the Veteran's right index finger was completely healed, with moderate tenderness to palpation and good proximal interphalangeal joint range of motion. The examiner further noted the Veteran was doing well. The medical evidence of record does not reflect that the Veteran has severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a body cast, or the necessity for house confinement. While acknowledging that he underwent revision of a prior amputation, there is no indication that he has severe postoperative residuals. The follow-up records show he was doing well, and that his finger had healed. Thus, there is no basis for extending his temporary total convalescent rating beyond January 31, 2015. Moreover, with regards to the 10 percent rating currently in effect, the criteria are not met for any greater rating. The amputation site is through the distal phalanx and there is no evidence suggesting the site had increased in size following the December 2014 surgery. The Veteran underwent a VA examination in August 2015, and during that examination the examiner confirmed the Veteran's right index finger was amputated through the middle phalanx or at the distal joint. A higher 20 percent rating requires amputation at the proximal interphalangeal joint, or proximal thereto. Therefore, the criteria for a higher rating under DC 5153 are not met. The Board additionally has considered whether a higher rating might be warranted under a DC measuring impairment due to limitation of motion. But, as discussed, the highest rating available for limitation of motion of the index finger is 10 percent under DC 5229, which is the same as the Veteran's current rating. Further, following the Board's remand of this claim, the Veteran now has separate 30 and 0 percent ratings, respectively, for peripheral neuropathy and a scar associated with his right index finger amputation. So, he already is being additionally compensated for that additional impairment. For these reasons and bases, a rating higher than 10 percent for the right index finger amputation, itself, is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.