Citation Nr: 22014178 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-46 400 DATE: March 11, 2022 ORDER Entitlement to an initial compensable evaluation for stable pin fixation of the right little finger status post proximal phalanx fracture is denied. FINDING OF FACT The Veteran's service-connected right little finger disability has not been of ankylosis of the PIP and MP joints, and there is no rotation or angulation of the bone. There has also been no amputation, resulting limitation of motion of the other digits, or interference with overall function of the hand CONCLUSION OF LAW The criteria for an initial compensable evaluation stable pin fixation of the right little finger status post proximal phalanx fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5227. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2012 to July 2016. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript is of record. The Board remanded the case for further development in March 2020. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issue of entitlement to service connection for a back disorder. However, following the remand, the agency of original jurisdiction (AOJ) granted that claim in an August 2020 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In this case, the Veteran is currently assigned a noncompensable evaluation pursuant for his service-connected right little finger disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5227. The record shows that he is right-handed, and as such, his right hand is dominant for rating purposes. 38 C.F.R. § 4.69. Under Diagnostic Code 5227, a noncompensable evaluation is warranted for unfavorable or favorable ankylosis of the ring or little finger. With ankylosis, consideration is also 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 the overall function of the hand. See Note to 38 C.F.R. § 4.71a, Diagnostic Code 5227. Under Diagnostic Code 5230, a noncompensable evaluation is warranted for any limitation of motion of the ring or little finger. For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (1). For evaluation of ankylosis of the index, long, ring, and little fingers, if both the MP and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at PIP joint or proximal thereto. If both the MP and PIP joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. If only the MP or PIP joint is ankylosed, and there is a gap of more than two inches (5.1 centimeters) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. If only the MP or PIP joint is ankylosed, and there is a gap of two inches (5.1 centimeters) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note (3). Under Diagnostic Code 5156, a 10 percent evaluation is warranted for amputation of the little finger, without metacarpal resection, at the PIP joint or proximal thereto. A 20 percent evaluation is warranted for amputation of the little finger with metacarpal resection (more than one half the bone lost). See 38 C.F.R. § 4.71a, Diagnostic Code 5156. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for his service-connected stable pin fixation of the right little finger status post proximal phalanx fracture. Initially, the Board finds that a higher evaluation is not warranted under Diagnostic 5230, as a noncompensable evaluation may only be assigned for any limitation of motion of the little finger. Although 38 C.F.R. § 4.59 indicates that painful motion of a joint should be recognized by a rating equivalent to at least the minimum compensable rating for the joint, the rating schedule does not provide for a compensable evaluation for any limitation of motion of the little finger joint. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Moreover, the evidence does not demonstrate any arthritis in the Veteran's right little finger. Nevertheless, even if he does have arthritis, the finger joint involved is a minor joint, and there is no indication of the involvement of a group of minor joints to warrant a 10 percent evaluation under Diagnostic Code 5003. In addition, a compensable evaluation is not warranted under Diagnostic Codes 5227 or 5156. The Veteran has not been shown to have amputation, ankylosis of the right little finger resulting in limitation of motion of other digits, or interference with the overall function of the hand. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). An October 2016 VA examination found that the Veteran had ankylosis of the PIP joint at 60 degrees, but there was no rotation or angulation of a bone. His MCP joint also had flexion to 90 degrees and extension to zero degrees, which demonstrates that the joint was not fixated or immobile. There was also no gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran's grip strength was found to be normal, and there was no muscle atrophy. In addition, a July 2020 VA examination found that the Veteran had ankylosis of the right little finger PIP joint in full flexion, but there was no ankylosis of the MCP joint. There was also no rotation or angulation of the bone. Nor was there a gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner further found that the ankylosis did not result in limitation of motion of the other digits or interference with the overall function of the hand. The Veteran's grip strength was normal, and there was no muscle atrophy. As previously noted, in order for ankylosis of the little finger to be rated as amputation without metacarpal resection at the PIP joint or proximal thereto, both the MP and PIP joints of a digit must be ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note (3). However, in this case, the evidence only show ankylosis of the PIP joint without rotation or angulation. Moreover, the Board finds that, to any extent that the VA examinations do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), further examination would not benefit the Veteran, as no higher evaluation can be granted without unfavorable ankylosis of both the MP and PIP joints or rotation or angulation of a bone, which was addressed in the August 2020 VA examination. Based on the foregoing, the Board finds that the evidence persuasively weighs against the claim. Therefore, the Board concludes that a higher initial evaluation is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.