Citation Nr: 21029937 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-18 859 DATE: May 17, 2021 ORDER Entitlement to a compensable rating for service-connected s/p fracture of the right hand with residual deformity of the little fifth finger (now claimed as ankylosis of the little finger right hand) is denied. FINDING OF FACT The symptoms attributable to the right little finger disability are limitation of motion and/or painful motion; the Veteran is in receipt of the maximum rating for his right little finger disability with no evidence that more nearly approximates ankylosis resulting in limitation of motion of other digits or interference with overall function of the hand. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected s/p fracture of the right hand with residual deformity of the little fifth finger have not 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 5227, 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2000 to June 2004. This matter was initially before the Board in August 2020, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded a VA examination to assess the current severity of his right fifth finger disability. Such development has been completed and the matter returned to the Board for appellate consideration. Entitlement to a compensable rating for service-connected s/p fracture of the right hand with residual deformity of the little fifth finger. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran appeals the denial of a compensable rating for service-connected s/p fracture of the right hand with residual deformity of the little fifth finger. The criteria for rating impairment of single or multiple digits of the hand are outlined in Diagnostic Codes 5216 through 5230 of 38 C.F.R. § 4.71a. The Veteran's service-connected right little finger disability is currently rated under Diagnostic Code 5227, which relates to unfavorable or favorable ankylosis. Diagnostic Code 5227 does not provide for compensable ratings, but a note to Diagnostic Code 5227 indicates consideration must also be 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 overall function of the hand when ankylosis is present. The only other applicable diagnostic code for the right little finger is Diagnostic Code 5230, which relates to limitation of motion of the ring or little finger. The Board notes that Diagnostic Code 5230 also does not provide for compensable ratings. Turning to the evidence, in June 2014, the Veteran filed an increased rating claim for his service-connected right little finger disability. The Veteran's VA treatment records are silent as to complaints and treatment for his right little finger or right hand. According to a June 2020 VA treatment record, he denied numbness and tingling. The Veteran was afforded a VA examination in March 2015. He reported numbness sensation and flexion deformity. There was a 1.0cm gap between the pad of the thumb and fingers. Additionally, "a 1.0cm gap between the 4th and 5th digit with extension due to flexion deformity." On examination, range of motion testing revealed a maximum MCP, PIP, and DIC extension in his index finger, long finger, ring finger, and little little finger to zero degrees; a maximum MCP and IP in his thumb to zero degrees; maximum flexion of MCP to 90 degrees; PIP to 100 degrees; DIP to 70 degrees; maximum flexion of MCP to 100 degrees in his thumb; and IP to 90 degrees. The Veteran's abnormal range of motion did not contribute to a functional loss, as there was no pain noted on exam. Additionally, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of motion. The examiner did state that deformity was an additional factor contributing to his disability. The Veteran did not have ankylosis of the right hand and no evidence of scars. Lastly, his disability did not impact his ability to perform any type of occupational task. The Veteran submitted a DBQ from his private physician in July 2019. His physician diagnosed him with ankylosis of the right digit joint. The examiner stated that he did not have flare ups. The Veteran did report functional loss, in which his physician specified that he is "unable to fully extend the right small finger proximal interphalangeal joint." The Veteran's right little finger was only tested for range of motion. On examination, range of motion testing revealed a CMC extension to zero degrees and flexion to 100 degrees, and IP extension to 45 degrees and flexion to 100 degrees and 70 degrees. The Veteran was able to perform repetitive-use testing with three repetitions and post-test range of motion testing without additional limitation of motion. While his physician diagnosed the Veteran with ankylosis of right joint, contrarily, he also stated there was no ankylosis in any of the fingers. Additionally, there was no muscle atrophy. Imaging studies were performed and revealed no abnormal findings. The Veteran was afforded a VA examination in December 2020. The examiner diagnosed him with s/p fracture proximal phalanx right fifth finger residual flexion deformity. The Veteran reported pain on movement with numbness and tingling, as well as flexion deformity. He stated, "[o]ther fingers functioning well, not affected by the 5th finger [and he is] able to use [his] right hand with minimal contribution from the right 5th finger." On examination, initial range of motion testing revealed no pain and a maximum MCP, PIP, and DIC extension of 0 degrees in all fingers; flexion of MCP to 90 degrees in his index finger, long finger and ring finger; flexion of MCP to 100 degrees in his thumb; PIP to 100 degrees in his index finger, long finger and ring finger; flexion of PIP to 90 degrees in his thumb; and of DIP to 70 degrees in his index finger, long finger and ring finger. Regarding his little finger, flexion of MCP to 80 and 90 degrees; PIP to 80 and 100 degrees; and DIP of 15 and 70 degrees. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of motion. Although the examiner did not examine the Veteran after repetitive using or during flare ups, he was able to determine his range of motion which did not result in additional limitation of motion. However, the examiner did report functional loss consisting of pain. The examiner found no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran did not have ankylosis of the right hand and there was no evidence of scars. There was no objective evidence of pain on passive ROM testing and weightbearing. Lastly, his disability did not impact his ability to perform any type of occupational task and the examiner confirmed no change in diagnosis. The examiner also opined that it is less likely than not the service-connected s/p fracture of the right hand with residual deformity of the little fifth finger affects the functioning of any other fingers and/or use of the hand. The examiner reasoned that while his examination shows limited range of motion in the fifth right finger, his grip and overall function of the other fingers are not affected, including normal range of motion and strength. The examiner concluded that there were no objective findings that his fifth right finger negatively affects the function of the other fingers and use of his right hand. According to lay statements from the Veteran, he reports pain, limitation of motion, and numbness in his right little finger. See e.g., March 2019 Hearing Transcript. After review of the record, the evidence for a compensable rating is against the claim. In this regard, the Veteran is already receiving the maximum schedular evaluation permitted under Diagnostic Code 5227. While the Veteran's July 2019 DBQ diagnosed the Veteran with ankylosis of the right little finger, his treating physician also marked "no ankylosis" for his right hand. There is inconsistent information regarding ankylosis in his right hand. However, assuming arguendo the Veteran has ankylosis, there is no evidence suggesting limitation of motion of other digits or interference with overall function of the hand, and the Veteran has not presented any evidence to the contrary. Additionally, a noncompensable rating is also warranted under Diagnostic 5230. The Board is cognizant that the Veteran has reported experiencing pain in his right little finger. Unfortunately, the Veteran cannot be compensated for painful motion under Diagnostic Code 5230 or 5227. For a painful joint, a veteran can be awarded at least the minimum compensable rating. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (applying § 4.59 in non-arthritis contexts). While it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, there is no compensable rating available under either DC 5227 or 5230. 38 C.F.R. § 4.71a. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Lastly, the Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain, including functional impairment of the hand attributable to the little finger injury. The Veteran is competent to report his symptoms and has presented credible testimony, but he is not competent to attribute any impairment of overall hand functioning to the little finger injury. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered the lay statements of record which discuss the Veteran's functional limitations. Notably, the undersigned observed that the Veteran had some difficultly at the hearing closing his entire fist, but the Board has no medical training to attribute a relationship between the right 5th finger and the other fingers of the hand. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). A VA examiner specifically examined the Veteran for this aspect of his potential disability, and found that the right 5th finger did not affect functioning of the other fingers. The Board finds no inadequacies in this examiner's assessment, and none is alleged. The Board finds the medical evidence more probative as it is prepared by neutral skilled professionals, and such evidence demonstrates that there is no functional impairment beyond the little finger itself. Accordingly, the claim is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.