Citation Nr: 22017320 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-58 005 DATE: March 24, 2022 ORDER An initial compensable rating for orthopedic manifestations of a fractured left-hand little finger is denied. A separate 10 percent rating for neurological residuals of a fractured left-hand little finger is granted. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran's fractured left-hand little finger has not been manifested by ankylosis or warranted evaluation or additional evaluation for resulting limitation of motion of other digits or interference with overall function of the hand. 3. The Veteran's fractured left-hand little finger is manifested by mild impairment of fine motor tasks of the left hand. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for fractured left-hand little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5227. 2. The criteria for a separate 10 percent rating for neurological residuals of a fractured left-hand little finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.124a, DC 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1998 to October 2001, and from November 2007 to October 2008. The Veteran has been awarded the Armed Forces Expeditionary Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and the National Defense Service Medal, among other awards. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for residuals of a left fractured little finger and assigned a noncompensable evaluation, effective November 6, 2011. These issues were previously remanded by the Board in the October 2019 decision for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. §4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. §1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261(1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to an initial compensable rating for fractured left-hand little finger 2. Entitlement to a separate 10 percent rating for neurological residuals of a fractured left-hand little finger The Veteran asserts that his service-connected fracture of his left-hand little finger warrants a higher initial evaluation than the current noncompensable rating currently assigned. The Veteran has been service-connected for his fractured left-hand little finger with a noncompensable evaluation, pursuant to DC 5227, since November 6, 2011. See April 2013 Rating Decision. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures; or due to deformity, adhesions, defective innervation, or other pathology; or due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); 38 C.F.R. §§ 4.40, 4.45, 4.59. Because painful motion of a joint is not a recognized disability with a corresponding DC, § 4.59 acknowledges that a claimant's disability may cause painful motion but still not be severe enough to warrant a compensable rating under the assigned DC. Accordingly, § 4.59 seeks to provide a claimant with at least the minimum compensable rating for his painful joint. Section 4.59 states in relevant part: 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. Thus, the plain meaning of the regulation "ensures that a veteran experiencing an 'actually' painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved. Accordingly, § 4.59 is not an independent provision that may be applied without an underlying diagnostic code, instead, it is applied only in conjunction with, and subject to, the underlying diagnostic code. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). Under the laws administered by VA, disabilities evaluating ankylosis or limitation of motion of single or multiple dights of the hand are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5216 through 5230. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant, his left hand is his minor hand for rating purposes. In November 2019, the Board noted that the Veteran did not report for his scheduled VA hand and finger examination in January 2018. A review of the evidence showed the Veteran was not notified either via letter, phone call or in-person regarding the time and place of the examination. As the Veteran's most recent VA examination took place in May 2016, the Board remanded the matter for a contemporaneous VA examination to determine the current nature and severity of his service-connected left little finger disability. See November 2019 BVA Decision. DC 5227 provides for a single noncompensable rating for ankylosis of the ring or little finger. 38 U.S.C. § 4.71. A note following DC 5227 instructs that it should be considered 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. Under DC 5230, contemplating ring or little finger, limitation of motion, a zero percent rating is assigned for any limitation of motion of the ring or little finger. 38 U.S.C. § 4.71. A noncompensable rating is assigned for limited little finger motion in either the major (dominant) or minor hand. As such, the service-connected fractured left-hand little finger is rated at the maximum rating provided by DC 5227 and DC 5230; therefore, a higher disability rating under the two diagnostic codes is not available, to include under 38 C.F.R. § 4.59. 38 C.F.R. § 4.71a. The Veteran was provided a VA examination for his left hand in January 2020. The examiner found that Veteran continued to report left little finger pain with pain resulting in flare-ups due to closing his hand or gripping. Upon examination, the initial ranges of motion of the left hand were abnormal but did not contribute to functional loss and there was no change after three repetitions. No ankylosis was present, impairment of the left little finger was not equivalent to amputation of the finger, and there was no indication of degenerative arthritis of the hand. The Veteran is already receiving the maximum schedular evaluation for his left little finger disability. The noncompensable rating is most analogous to his disability, as the symptomatology is not severe enough to warrant evaluation as amputation, nor was limitation of motion present of the other digits or interference with the overall function of the hand caused by the left little finger fracture residuals. There is no X-ray evidence of degenerative changes, and the left little finger does not constitute a major joint; hence, DCs 5003 and 5010 for arthritis are not appropriate as they would not support a compensable initial rating. 38 C.F.R. § 4.71a. Finally, the Board has considered a rating decision based on painful motion under 38 C.F.R. § 4.59. Generally, when painful motion is present, the minimum compensable rating for the joint should be assigned. However, in this case, there is no level of disability that warrants a compensable rating under DC 5227. Sowers v. McDonald, 27 Vet. App. 472 (2017). Therefore, a compensable rating for painful motion cannot be assigned in this case. Id.; 38 C.F.R. § 4.59. The weight of the evidence is thus against a compensable rating for fracture residuals of the left little finger for any portion of the appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial compensable rating for the Veteran's orthopedic impairment as a residual of his fractured left little finger is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). As a final point, pursuant to the findings in the January 2020 VA hand and fingers examination, the evidence shoes that the Veteran has shown reduction in muscle strength in his left hand due to his service-connected left little finger resulting in pain with gripping and closing of the left hand. As this constitutes an inability to do fine motor tasks of the left hand, with resolution of all reasonable doubt in his favor, the Board finds that a separate 10 percent rating, and no more, for mild neurologic impairment under DC 8515, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.