Citation Nr: 22013935 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-59 075 DATE: March 11, 2022 ORDER Entitlement to a disability rating in excess of 40 percent for amputation, ring and little fingers, with degenerative arthritis of the right hand, is denied. From April 21, 2015, a 10 percent disability rating for limitation of motion of the long finger is granted. From April 21, 2015 to November 28, 2021, a 0 percent disability rating for limitation of the index finger is granted. From November 29, 2021, a 10 percent rating for limitation of motion of the index finger is granted. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum assignable rating for amputation of the right ring and little fingers and amputation or resection of metacarpal bones (more than one-half the bone lost) in multiple finger injuries, without ankylosis or loss of use of the hand. 2. From April 21, 2015, limitation of motion of the long finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm is shown. 3. From April 21, 2015 to November 28, 2021, limitation of motion of the index finger with a gap of less than one inch between the fingertip and the proximal transverse crease of the palm is shown. 4. From November 29, 2021, limitation of motion of the index finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm is shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for amputation of the right ring and little fingers have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5151. 2. From April 21, 2015, the criteria for a 10 percent disability rating for limitation of motion of the long finger have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5229. 3. From April 21, 2015 to November 28, 2021, a 0 percent disability rating for limitation of motion of the index finger have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5229. 4. From November 29, 2021, a 10 percent disability rating for limitation of motion of the index finger have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter came to the Board of Veterans' Appeals (Board) from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted a 40 percent disability rating for amputation, ring and little fingers, with degenerative arthritis of the right hand, effective April 21, 2015. The Veteran testified at a Board hearing in November 2020; the transcript is of record. This matter was remanded in October 2021. The Board acknowledges that in April 2017 the Veteran claimed clear and unmistakable error (CUE) in the December 1970 rating decision that granted service connection for amputation, right and little finger, and assigned a 30 percent disability rating, effective July 28, 1970. To date, such claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), thus the Board does not have jurisdiction of this issue. Such issue should be adjudicated by the AOJ. Increased Rating Service connection is in effect for amputation ring and little fingers with degenerative arthritis of the right (major) hand, rated 40 percent disabling, effective April 21, 2015, pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5003 (degenerative arthritis) and Diagnostic Code 5151 (amputation of ring and little digits). It is also noted a separate 0 percent rating is in effect for surgical scar, right hand, effective July 28, 1970; such rating is not before the Board. By way of history, it is noted that during service the Veteran had a traumatic amputation of the ring (4th digit) finger at the proximal PIP joint on the right hand and thereafter had a transplant of his right little finger onto the amputation site of the ring finger. His little (5th digit) finger was amputated and transplanted medially to fill space left by removal of ring finger (4th digit) and attached to the 4th metacarpal. The little finger (5th digit) angulates laterally approximately 10 degrees. The Veteran asserts that he should be awarded a higher 50 percent rating for his amputation, ring and little fingers, and/or should be awarded separate 10 percent ratings for limitation of motion of the thumb, limitation of motion of the long finger, and limitation of motion of the index finger. The Veteran also asserts that he should be awarded higher ratings based on functional limitations and pain associated with his disability. 11/23/2020 Correspondence. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, 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. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003, for degenerative arthritis, was revised as of February 7, 2021, to make this Code applicable only to degenerative arthritis, and not post-traumatic arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Both prior and current Diagnostic Code 5003 provide that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, as discussed above. Per Diagnostic Code 5151, a 30 percent rating is assigned for amputation of the ring and little digits of one (major) hand. Note (a) states that the ratings for multiple finger amputations apply to amputations at the proximal interphalangeal joints of through proximal phalanges. Note (b) states that amputation through long phalanges will be rated as prescribed for unfavorable ankylosis of the fingers. Note (c) states that amputations at distal joints, or through distal phalanges, other than negligible losses, will be rated as prescribed for favorable ankylosis of the fingers. Note (d) states that amputation or resection of metacarpal bones (more than one-half the bone lost) in multiple fingers injuries will require a rating of 10 percent added to (not combined with) the ratings, multiple finger amputations, subject to the amputation rule applied to the forearm. Note (e) states that combinations of finger amputations at various levels, or finger amputations with ankylosis of limitation of motion of the fingers will be rated on the basis of the grade of disability; i.e., amputation, unfavorable ankylosis, most representative of the levels or combinations. With an even number of fingers involved, and adjacent grades of disability, select the higher of the two grades. Note (f) states that loss of use of the hand will be held to exist when no effect function remains other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. Single finger amputations are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5152-5156. Under Diagnostic Code 5155, for the major extremity, amputation of the ring finger without metacarpal resection, at proximal interphalangeal (PIP) joint or proximal thereto is assigned a 10 percent rating. A 20 percent rating is warranted for amputation with metacarpal resection (more than one-half the bone lost). Under the Amputation Rule, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. All other compensable ratings under the diagnostic codes related to the hands and fingers require ankylosis of individual or multiple digits. See Diagnostic Codes 5216 through 5227. Unfavorable ankylosis of the ring and little fingers warrants a 20 percent rating. 38 C.F.R. § Diagnostic Code 5219. Favorable ankylosis of the ring and little finger is evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5223. Limitation of motion of the ring or little finger is also evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5230. At the Board hearing, the Veteran testified that he suffers from "constant pains in my finger joints, painful stiffness, painful flareups, painful locking of my thumb and index finger, tenderness of the metacarpal joint of the third digit as transpositioned (phonetic) of the fifth digit, meaning that's --the fifth digit was placed on that amputated right ring finger and metacarpal bone --including painful motions when the fingers are extended and flexed, more so when grabbing items over a period of time." 11/23/2020 Hearing Transcript at 4. He also testified to experiencing flare-ups associated with his disability. As detailed, the maximum rating assignable for amputation of the ring and little fingers is 30 percent for the major hand. The 40 percent rating currently in effect encompasses the amputation of the ring and little fingers and an additional 10 percent due to amputation or resection of metacarpal bones in multiple fingers. The Board has determined that separate 10 percent ratings are warranted for limitation of motion of the index and long fingers per 38 C.F.R. § 4.71A, Diagnostic Code 5229. Specifically, the November 2021 C&P examination reflects an objective finding of a gap between the finger and proximal transverse crease of the hand on maximal finger flexion, measuring 3 centimeters for both the index and long fingers. Per Diagnostic Code 5229, such warrants separate 10 percent ratings, which are the maximum assignable ratings for limitation of motion of the index or long finger. The Board notes that the October 2015 C&P examination report reflects an objective finding of a gap between the finger and proximal transverse crease of the hand on maximal finger flexion, measuring 2 centimeters for the index finger and 2.5 centimeters for the long finger. Thus, the Board finds that the 10 percent rating assigned to the long finger is warranted from April 21, 2015, corresponding to the date of the increased rating claim. The Board finds that a 0 percent rating is warranted for the index finger from April 21, 2015, and the 10 percent rating is warranted for the index finger from November 29, 2021, which corresponds to the date of the C&P examination report and the objective findings of a gap of one inch or more between the fingertip and the proximal transverse crease of the palm. The evidence of record prior to November 29, 2021 does not support a finding of a compensable rating pertaining to the index finger. Based on review of the September 2015 and November 2021 C&P examination reports, treatment records, and lay assertions of the Veteran, there is no basis for the assignment of higher ratings based on any of the diagnostic criteria pertaining to the hand and fingers. Ankylosis is not present in any of the digits thus a rating based on the favorable and unfavorable ankylosis provisions is not for application. There is no gap between the pad of the thumb and fingers thus a rating for limitation of motion of the thumb is not warranted. A 70 percent rating is warranted for loss of use of the hand but there have been no objective findings of functional impairment of the extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. See 38 C.F.R. § 4.71A, Diagnostic Code 5125. While the Veteran has functional limitations of the right hand with regard to grasping and holding objects, the Board finds that the current ratings in effect compensate him for his functional limitations. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. These provisions are not for consideration; however, where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The disability also is not shown to involve any other factors warranting evaluation of the disability under any other provisions of VA's rating schedule. Thus, there is no further diagnostic criteria which could provide the basis for higher ratings. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.