Citation Nr: 21041018 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-42 993 DATE: July 7, 2021 ORDER Entitlement to an initial 10 percent rating for status post tendon laceration, left ring finger and left little finger, with residual scar is denied. FINDING OF FACT The Veteran's status post tendon laceration, left ring finger and left little finger, with residual scar is manifested by pain, and limited motion without unfavorable ankylosis. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for status post tendon laceration, left ring finger and left little finger, with residual scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, (2012) Diagnostic Code 5230 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Navy from February 1963 to January 1967. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is not in the evidence of record. In December 2020, the Veteran was informed that a hearing transcript could not be produced due to an audio malfunction heard throughout his testimony in the Digital Audio Recording System (DARS). He was offered the opportunity to testify in another hearing per 38 § C.F.R. 20.717. Since no response was received within 30 days the Board will proceed with the appeal. In April 2021, the Board remanded the issues of entitlement to a compensable evaluation for status post tendon laceration, left little finger, with residual scar and entitlement to a compensable evaluation for status post tendon laceration, left ring finger for additional development. In an April 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted an initial 10 percent disability rating for status post tendon laceration, left ring finger and left little finger, with residual scar effective February 6, 2013. As the Veteran has not been granted the maximum benefits allowed for the entire appeal period, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Higher Initial Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his left ring finger and left little finger disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. 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. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is 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. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Pursuant to the rating schedule, 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. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (2). In a June 2014 rating decision, the RO granted service connection for status post tendon laceration, left little finger with residual scar and service connection for status post tendon laceration, left ring finger with residual scar at initial noncompensable evaluations, effective February 6, 2013 under Diagnostic Code 5230. Under Diagnostic Code 5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a. As noted above, in an April 2021 rating decision, the RO combined the left ring finger and left little finger disabilities and granted an initial 10 percent disability rating for status post tendon laceration, left ring finger and left little finger, with residual scar effective February 6, 2013 under Diagnostic Codes 5099-5019. These hyphenated diagnostic codes contemplate an unlisted condition analogous to bursitis. 38 C.F.R. §§ 4.20, 4.27 (2020). Under Diagnostic Code 5019, bursitis is to be rated on limitation of motion of the affected parts, as degenerative arthritis. Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For purposes of rating disability from arthritis, the left ring finger and left little finger, will be considered groups of minor joints and therefore the rating is to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.45 (f). During the pendency of this appeal, the provisions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 76,453, 76,464 (Nov. 30, 2020), revised, 85 Fed. Reg. 85,523 (Dec. 29, 2020), revised, 85 Fed. Reg. 8142 (Feb. 4, 2021). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board will consider the Veteran's claim under both the old and new rating criteria, and the more favorable criteria will be applied. If the new criteria are more favorable, they will only be applied from February 7, 2021, when the regulations became effective. In this case, Diagnostic Code 5230 has remained unchanged by the February 7, 2021 amendments. However, Diagnostic Code 5010 was affected by the regulation revisions. Under the amended Diagnostic Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Diagnostic Code 5003 was also affected by the February 7, 2021 amendments. The amended Diagnostic Code 5003 pertains to degenerative arthritis, other than post-traumatic. As the pre-February 7, 2021 rating criteria for Diagnostic Codes 5010 and 5003 are more favorable to the Veteran, the old rating criteria will be applied for the entire period on appeal. Factual Background and Analysis The Veteran underwent a VA examination in June 2014. The diagnosis was left 4th/5th digit lacerations involving tendons. The Veteran was right hand dominant. The Veteran reported having pain and loss of motion. Due to the pain it was difficult to grasp and hold a rake, fishing pole, steering wheel or a shovel. He reported having fatigue ,weakness and lack of endurance in the joints. He also stated that the distal 4th and 5th digits had loss of sensation but he denied swelling. On examination, there was limitation of motion and painful motion of the 4th and 5th fingers of the left hand. There was not a gap between the thumb pad and the fingers. There was a 1 inch or more gap between the ring finger and the little finger and the proximal transverse crease of the palm or evidence of painful motion in an attempt to touch the palm with the fingertips. The Veteran was able to perform repetitive use testing with no additional limitation of motion. The Veteran's left ring finger and ring finger had less movement than normal, weakened movement, excess fatigability, incoordination and pain on movement. Muscle strength testing was 4/5. The Veteran had a scar that was not painful or unstable. The Veteran's fingers impacted his ability to work as the Veteran would have difficulty with any job requiring repetitive gripping, holding, lifting and manipulating tools or objects with his left hand. The examiner noted that the Veteran had mild to moderate impairment. The Veteran underwent a VA examination in September 2016. The diagnosis was left hand lacerations. The Veteran reported having occasional pain in his left hand with weakness during certain activities. He also had decreased range of motion. He denied numbness but reported having whitish discoloration and increased pain in his 4th and 5th left fingers during cold weather. He indicated that he had difficulty with many activities including using tools and fishing because of his left hand. He was able to perform all of his indoor and light duty outdoor chores with difficulty. He again reported having flare-ups of his left-hand disability during bad weather. On examination, there was limitation of motion and painful motion of the 4th and 5th fingers of the left hand. There was not a gap between the thumb pad and the fingers. There was a gap between the ring finger and the little finger and the proximal transverse crease of the palm on maximal finger flexion because of scarring of his flexor tendons. The range of motion itself contributed to functional loss. There was evidence of pain with use of the hand. The Veteran was able to perform repetitive use testing with no additional limitation of motion. The examiner was unwilling to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination would significantly limit functional ability during flare-ups or over a period of time as there was no reliable way to predict the decreased functional ability outside the clinical setting. Muscle strength testing was 4/5. There was no muscle atrophy and no ankylosis. The Veteran had a scar that was not painful or unstable. The Veteran's fingers impacted his ability to work as the Veteran would have difficulty with many activities because of the weakness and decreased range of motion. Considering the pertinent facts in light of applicable rating criteria, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's status post tendon laceration, left ring finger and left little finger, with residual scar disability. As noted above, the maximum schedular rating for limitation of motion of the ring or little fingers under Diagnostic Code 5230 is noncompensable. The Board acknowledges that the Veteran experiences pain with use of his fingers as records reveal treatment for painful motion of the left ring and little fingers, as well as limited range of motion of the ring and little fingers, which made it difficult to grasp and hold objects. The Veteran described the pain as considerable and noted that it made it difficult to grasp and hold a rake, fishing pole, steering wheel or a shovel while he also noted having fatigue, weakness and lack of endurance in the joints. The June 2014 and September 2016 VA examiners also noted that the Veteran's finger disabilities impacted his ability to work as the Veteran would have difficulty with any job requiring repetitive gripping, holding, lifting and manipulating tools or objects with his left hand. There is, however, no evidence of ankylosis or amputation and the overall disability appears most accurately reflected with the application of the limitation of motion codes as neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher evaluation in excess of 10 percent for left ring and little finger disabilities as the Board notes that at no time during the period under review has the disability picture approached that required for assignment of a higher evaluation under Diagnostic Code 5003 or any other potentially applicable diagnostic code. A 20 percent rating under Diagnostic Code 5003 is not applicable, because there is not x-ray evidence of the involvement of 2 or more major joint groups or 2 or more minor joint groups with occasional incapacitating episodes. Furthermore, functional loss, beyond what has been reflected on range of motion testing has already been considered in the application of the 10 percent disability rating granted by the April 2021 rating decision. DeLuca, 8 Vet. App. at 206-07. As a result, to the extent the Veteran experiences painful motion in his fingers, this is already contemplated in the rating assigned for painful motion as part of a group of minor joints and the Board does not find adequate pathology to support any higher rating based on functional impairment due to pain on motion or other factors. Again, entitlement to a rating higher than 10 percent is also not warranted under any other diagnostic code, including those which require favorable or unfavorable ankylosis, as both the June 2014 and September 2016 VA examiners did not find evidence of ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5227. In sum, an evaluation in excess of 10 percent rating for a left little finger and left ring finger are not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for left little finger and left ring finger disabilities. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.