Citation Nr: 22014653 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-58 301 DATE: March 14, 2022 ORDER Entitlement to a 10 percent rating, but no higher, is granted for residuals status post fracture of the right little finger, with ankylosis (evaluated as amputation without metacarpal resection), from June 18, 2014 to October 31, 2021. REMANDED Entitlement to a rating in excess of 10 percent for residuals status post fracture of the right little finger, with ankylosis, is remanded. FINDING OF FACT From June 18, 2014 to October 31, 2021, the Veteran's residuals status post fracture of the right little finger, with ankylosis, more nearly approximates amputation without metacarpal resection. CONCLUSION OF LAW The criteria for entitlement to a 10 percent rating for residuals status post fracture of the right little finger, with ankylosis (evaluated as amputation without metacarpal resection), from June 18, 2014 to October 31, 2021, are met. 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 Codes 5156, 5227. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1979 to September 1983. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In May 2021, the Veteran testified before the undersigned Veterans Law Judge in a video-teleconference hearing. The Board remanded this matter for additional development in August 2021. As an initial matter, the Board notes that the Veteran, through counsel, sought to opt into the Rapid Appeals Modernization Program (RAMP), electing a hearing with a Veteran's Law Judge; however, The AOJ clarified that his appeal did not qualify for processing under RAMP. See January 2019 VA Form 21-4138; January 2019 AOJ Response. Thus, the appeal proceeded under the preexisting "legacy," appellate process, with the Veteran receiving the aforementioned May 2021 hearing within the legacy system. In addition, the Veteran's counsel subsequently withdrew from representation, and the Veteran is now represented by a Veterans Service Organization (VSO). See December 2019 Attorney Memorandum (withdrawing from representation); February 2019 VA Form 21-22 (appointing the Disabled American Veterans as VSO). The Board has bifurcated the issue of entitlement to an increased rating for a right little finger disability as reflected on the title page so as to afford the Veteran a favorable decision without delay while the question of entitlement to a rating greater than ten percent for the entire period on appeal is remanded. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). 1. Entitlement to a 10 percent rating, but no higher, is granted for residuals status post fracture of the right little finger, with ankylosis (evaluated as amputation without metacarpal resection), from June 18, 2014 to October 31, 2021. I. General Rating Principles Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A veteran's entire history is to be considered when making disability evaluations (ratings). See generally 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, with a veteran receiving the benefit of the doubt, or whether there is evidence prevailing against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Rating Criteria During the pendency of this appeal, the criteria for rating disabilities of the musculoskeletal system in the VA Schedule for Rating Disabilities was revised effective February 7, 2021. However no changes were made to either diagnostic code 5227 (ring or little finger, ankylosis of, favorable or unfavorable) or 5156 (little finger, amputation of); therefore, the overall changes to the musculoskeletal ratings have no bearing on the instant analysis. DC 5227 provides for a noncompensable rating for unfavorable or favorable ankylosis of the little finger; however, the note to the DC directs consideration 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. 38 C.F.R. § 4.71a, DC 5227. Here, DC 5156 provides for a 10 percent rating for amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto, and a 20 percent rating for amputation with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, DC 5156. Evaluation as amputation does not require physical amputation of the appendage; rather, it only requires that the functional equivalent of amputation. See, e.g., DC 5227, Note. III. Analysis The Veteran was first granted service connection for his right little finger disability at a noncompensable rate. See May 1987 Rating Decision (granting service connection for "Status Post Fracture and Ankylosis Proximal Interphalangeal Joint Little Finger, Right Hand," effective September 6, 1983 (at service separation)). The Veteran first incurred the injury on active duty in an accident at sea. See May 2021 Hearing Transcript [hereafter "Transcript"], at 3-4 ("We had an incident, and I was caught up in that incident where supplies fell on me, and I fell down the ladder stairwell. And the supplies and the other men, they fell on top of me. So, that's when the finger got caught in a rail."). The Veteran did not appeal the May 1987 rating decision; thus, it became final. The Veteran filed an informal increased rating claim for his right little finger disability on June 18, 2014, followed by a formal claim in November 2014. See June 18, 2014 VA Form 21-4138; November 2014 VA Form 21-526b. Later, in December 2021, the AOJ granted an increased rating of 10 percent, effective November 1, 2021. In this regard, the AOJ evaluated the disability as equivalent to an amputation without metacarpal resection. See December 2021 Rating Decision. Here, the period on appeal is from June 18, 2014, plus the one year look back period. Throughout the appeal period, the Veteran has reported aching, stiffness, and generalized pain. He has also consistently reported reduced grip strength in his right, dominant hand. See, e.g., Transcript, at 3-7. The Board also notes that there are no relevant VA treatment records associated with the Veteran's right little finger disability, nor are there any relevant private treatment records associated with the file. Thus, the three relevant compensation and pension exams (March 2015, May 2018, and November 2021) and the Veteran's lay testimony are the only evidence of record on this matter. See, e.g., June 2020 Supplemental Statement of the Case ("VA treatment records do not show any objective findings related to right little finger."). The Veteran was most recently afforded a VA Hand and Finger examination in November 2021. Here, the examiner found that Veteran's lack of ability to use his right little finger was equivalent in nature to amputation without metacarpal resection. See November 2021 VA Medical Opinion. Thus, the AOJ assigned a 10 percent rating under DC 5156, evaluating the right little finger disability as the equivalent of amputation without metacarpal resection. See December 2021 Rating Decision. The November 2021 VA examiner noted, among other things, weakness, reduced grip strength, stiffness, painful movement, reduced range of motion (ROM), and significant fine motor skill impairment. All of these factors combine to support the examiner's conclusion that the Veteran's impairment is equivalent to amputation without metacarpal resection. Of note, the AOJ assigned an effective date coincident with the November 2021 exam date; however, the Board is obligated to look back to the beginning of the rating period. In this regard, the May 2018 VA examination shows findings similar to the November 2021 VA examination, including reduced grip strength, painful movement, reduced ROM, and inability to perform fine motor movements. The May 2015 VA examiner observed similar symptoms as those observed in the November 2021 examination, with the exception of reduced grip strength. Specifically, the examiner described daily throbbing pain, occasional cramping, joint tenderness, reduced ROM, and reduced fine motor skills. Of particular significance, while the 2015 and 2018 examiners found that the Veteran's impairment was not equivalent to amputation, the functional impairment described the three VA examiners was almost identical, with each examiner describing marked difficulty with fine motor skills. As such, given the medical and competent and credible lay evidence of record and the benefit of the doubt, the Board finds that a 10 percent rating for the Veteran's right little finger disability under DC 5156 is warranted for the period from June 18, 2014 to October 31, 2021, based on pain, reduced ROM, and functional impairment. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board finds that these symptoms and resultant functional impairment of the right little finger are equivalent to amputation at the metacarpal without resection for the entire rating period. REASONS FOR REMAND 2. Entitlement to an increased rating for residuals status post fracture of the right little finger, with ankylosis, is remanded. At hearing, the Veteran described shaking in his right hand, which he associated with his right little finger disability. Transcript, at 5-7. As such, the August 2021 Remand directed that the examiner determine whether a separate diagnosis for a right hand neurological and/or arthritic condition was warranted. The November 2021 examiner's opinion regarding the etiology of the Veteran's arthritis of the right hand was conclusory; moreover, the examiner neither addressed the shaking nor discussed any potential neurological conditions (not even to rule out a neurological disability). Therefore, the August 2021 exam is incomplete, and an addendum opinion addressing the Veteran's reported shaking and arthritis is required on remand. The matters are REMANDED for the following action: Obtain an addendum opinion from the November 2021 VA examiner (or other examiner, if unavailable) addressing the nature and severity of his right little finger disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the examiner determines otherwise. Following review of the claims file, the examiner is requested to address the following: a) Can the Veteran's reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis be considered a complication of his right little finger disability? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. b) If the reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis can be considered a complication of his right little finger disability, please describe the nature and severity of any current residuals. c) If the reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis cannot be considered a complication of his right little finger disability, please state whether it is at least as likely as not (50 percent probability or greater) that the reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis was caused by the Veteran's service-connected right little finger disability. Please explain why or why not. d) If not caused by the service-connected right little finger disability, is it at least as likely as not that the Veteran's reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis was worsened beyond its normal progression by the service-connected right little finger disability. Please explain why or why not. e) If the examiner finds that the Veteran's underlying reported shaking in his right hand (see Board Hearing Transcript at 6) and/or right hand arthritis was worsened beyond normal progression (aggravated) by the service-connected right little finger disability, please describe the degree of aggravation attributable to the right little finger disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, Associate 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.