LONG FINGER FLEXION ENDPOINT

MARY E. RUDE · 2022 · Case ID: 22047868

MIXED

Summary

The veteran, who served in the U.S. Army from February 1981 to February 1985, appeals the denial of increased ratings for residuals of a fractured left hand, specifically for the index finger, long finger, and thumb. The Board reviewed the veteran's left hand disability, which stems from a crush injury to the muscles, impacting multiple digits. The veteran is left-hand dominant, a fact confirmed by service records and lay statements, despite a conflicting VA exam finding. The Board applied the February 2022 VA examination results retroactively to the entire appeal period, finding earlier exams inadequate. For the long finger, the Board granted a 10 percent rating based on painful motion, citing 38 C.F.R. § 4.59 and Diagnostic Code 5229, noting a 1.5 cm gap on flexion during flare-ups. For the ring finger, the Board granted a 10 percent rating by analogy under Diagnostic Code 5309-5230, acknowledging painful motion and the minimum rating under 5309 for muscle injuries, despite 5230 allowing only a 0 percent rating for limitation of motion. For the index finger, the Board found a 10 percent rating warranted based on painful motion under 38 C.F.R. § 4.59 and Diagnostic Code 5229, noting a 1.5 cm gap. For the thumb, the Board granted a 10 percent rating based on painful motion under 38 C.F.R. § 4.59 and Diagnostic Code 5228, noting a 1.5 cm gap. The Board denied increased ratings for the long finger and index finger beyond 10 percent, and denied increased ratings for the ring finger and thumb beyond 10 percent, finding no basis for higher ratings or ankylosis. The Board also remanded the claim for Total Disability based on Individual Unemployability (TDIU) for further development and initial consideration, as the facts raised this issue.

Rationale

Painful motion identified by examiner; 1.5 cm gap on flexion during flare-ups; Minimum 10% rating under DC 5229 and 38 C.F.R. § 4.59

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

18-55 255

Full Decision Text

Citation Nr: 22047868
Decision Date: 08/23/22 Archive Date: 08/23/22

DOCKET NO. 18-55 255
DATE: August 23, 2022

ORDER

Entitlement to a rating higher than 10 percent for residuals of a fractured left hand, long finger (formerly characterized as residual pain and deformity, fractured left hand) is denied.

Entitlement to a rating of 10 percent, but no greater, for residuals of a fractured left hand, ring finger, is granted.

Entitlement to an increased rating in excess of 10 percent for residuals of a fractured left hand (dominant), index finger, is denied.

Entitlement to a rating of 10 percent, but no greater, for residuals of a fractured left hand, thumb, is granted.

REMANDED

Entitlement to a rating of total disability, individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran is left hand dominant.

2. For the entire period on appeal, May 28, 2015 to the present, the Veteran's left hand disability, which was caused by an injury to muscle group IX, is manifested by limitation of motion and painful motion in the index finger, long finger, ring finger, and thumb.

3. The Veteran's left thumb, index finger, and long finger have not been found to have a gap of 2.5 cm or more between the digit and the proximal transverse crease of the palm. The Veteran has not been found to have any ankylosis in his hand, fingers, or thumb.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for residuals of a left hand disability, long finger (formerly characterized as residual pain and deformity, fractured left hand), have not been 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 5229.

2. The criteria for a rating of 10 percent, but no higher, for residuals of a left hand disability, ring finger, have been 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 5309, 5230.

3. The criteria for a rating in excess of 10 percent for residuals of a left hand disability, index finger, have not been 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 Code 5229.

4. The criteria for a rating of 10 percent, but no higher, for residuals of a left hand disability, thumb, have been 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 Code 5228.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1981 to February 1985.

These matters arise from a August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The matter was previously before the Board of Veterans' Appeals (Board) in August 2020 and October 2021. In August 2020, the Board denied entitlement to a rating in excess of 10 percent for a left hand and thumb disability. The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In its May 2021 Order, the CAVC granted Joint Motion for Remand (JMR), vacating the August 2020 Board decision, and remanded these matters to the Board for action in compliance with the JMR. In October 2021, the Board remanded the matters for further development in compliance with the May 2021 CAVC Order. The Board finds substantial compliance with its October 2021 remand directives. See Stegall v. West, 11 Vet. App. 268,
a rating in excess of 10 percent for a left hand and thumb disability. The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In its May 2021 Order, the CAVC granted Joint Motion for Remand (JMR), vacating the August 2020 Board decision, and remanded these matters to the Board for action in compliance with the JMR. In October 2021, the Board remanded the matters for further development in compliance with the May 2021 CAVC Order. The Board finds substantial compliance with its October 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board gives the Veteran a right to compliance with the terms of the remand).

The Board notes that there was a request in April 2022 to withdraw the claim for a rating higher than 10 percent for the left hand. However, at that time the Veteran's claims had already been recharacterized into separate ratings for his index finger, ring finger, and thumb. Due to the ambiguity, the Board requested clarification on which issue the Veteran wished to withdraw, giving 30 days to respond. See May 16, 2022 Correspondence. The Veteran did not response in the given time frame. As such, the Board continues with appellate review.

Increased Rating Regulations

For musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are considered in reviewing functional impact, including limitation of motion due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45.

The intent of the schedule for rating disabilities 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.45.

Disabilities of the hand are generally rated based on the impact on individual digits or groups of digits. Limitation of motion of the index finger or long finger is rated under Diagnostic Code 5229. A 10 percent evaluation can be assigned when there is a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229.

Limitation of motion of the thumb is rated under Diagnostic Code 5228. A 10 percent evaluation can be assigned when there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent evaluation is assigned when there is a gap of more than two inches between the thumb pad and the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228.

Limitation of motion of the ring or
, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229.

Limitation of motion of the ring or little finger is rated under Diagnostic Code 5230. Under this rating, any limitation of motion is assigned a 0 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5230. This is the maximum rating available under this diagnostic code.

Higher ratings are also available under Diagnostic Codes 5216-5257 when there is ankylosis of one or multiple digits. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5257. The Veteran has not, however, ever been found to have ankylosis of any of his fingers or asserted that he has, and these diagnostic codes are not applicable.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. In other cases, hyphenated diagnostic codes are used to rate a disability not specifically identified by the rating code by analogy under a different diagnostic code.

FACTUAL BACKGROUND

The Veteran was initially assigned a 10 percent rating for his left hand disability overall, effective August 28, 2002, characterized as "residual pain and deformity, fractured left hand." The Veteran's left hand was initially rated under Diagnostic Code 5228, for limitation of motion of the thumb.

In May 2015, the Veteran submitted an Intent to File a Claim, and in June 2015, he requested a higher rating for his left hand condition. In a March 2022 rating decision, the Veteran was granted a separate 10 percent evaluation for the left hand index finger painful motion, effective February 22, 2022. Separate noncompensable evaluations were also assigned for the left hand ring finger and thumb based on limitation of motion. The Veteran's 10 percent rating for residual pain and deformity, fractured left hand, was not discontinued, but was revised to be rating under Diagnostic Code 5229, for limitation of motion of the long finger.

The Veteran attended three VA examinations for his left hand during the appeal period, in August 2015, July 2019, and February 2022. The August 2015 and July 2019 examinations were found inadequate for rating purposes for failing to properly address flare-ups, but this error has corrected in the most recent February 2022 VA examination. The Board will therefore apply the February 2022 VA examination results to the entire appeal period, and only this examination is discussed in detail below. The August 2015 and July 2019 VA examinations found range of motion results and symptoms which were either the same or better than those shown in February 2022, unless otherwise specifically noted.

The Veteran's residual pain and deformity, fractured left hand, is currently rated under Diagnostic Code 5309. Specifically, it is rated under Diagnostic Code 5309-5229 at 10 percent disabling. The Veteran has a separate individual rating under Diagnostic Codes 5228, for his thumb at a non-compensable, zero percent rating; a rating under Diagnostic Code 5229 for his index finger at 10 percent disabling; and a rating under Diagnostic Code 5290 for his ring finger at a non-compensable, zero percent rating.

The Veteran reported that his left index, middle, and ring fingers continue to experience pain due to an injury sustained in service. These were grouped as residual pain and deformity, fractured left hand. As such, the February 2022 VA examination addresses all of the Veteran's symptoms and manifestation. The Veteran reported flare-ups of his left hand. The Veteran described the flare-ups causing swelling and pain such that he is unable to do anything with his left hand. See November 2021 Statement in Support of Claim. The Veteran stated that flare-ups occur unpredictably, that pain is constant but increased with flare-ups, and that swelling also occurs during flare-ups. The Veteran reported feeling depressed and stressed because he cannot do yard work or repairs around his home or work on his car. The February 2022 VA examiner reviewed these statements and elicited from the Veteran information that the flare-ups occur once a week, lasting approximately 1 to 2 hours. The examiner noted that rest helps alleviate the symptoms that the examiner noted being of moderate severity. The examiner noted that the Veteran reported not being able to work due to left hand pain.

The examiner noted the Veteran's left hand initial active range of motion (ROM) measurement were abnormal and contributed to functional loss. The examiner found the Veteran's ROMs as follows:

Right Hand Left hand

MCP PIP DIP MCP PIP DIP

Index finger flexion endpoint 90 700 70 80 60 45

Index finger extension endpoint 0 0 0 0 0 0

Long finger flexion endpoint 90 100 70 80 60 45

Long finger extension endpoint 0 0 0 0 0 0

Ring finger flexion endpoint 90 100 70 80 50 40

Ring finger extension endpoint 0 0 0 0 0 0

Little finger flexion endpoint 90 100 70 90 100 70

Little finger extension endpoint 0 0 0 0 0 0

Thumb finger flexion endpoint 100 90 N/A 100 90 N/A

Thumb finger extension endpoint 0 0 N/A 0 0 N/A

For the left hand, the examiner found no gap between the pad of the thumb and the fingers. He did find a 1.5 cm gap between the index finger and the proximal transverse crease on the left hand and a 1.5 cm gap between the long finger and the proximal transverse crease on the left hand on maximal finger flexion. The August 2015 VA examination also found such a gap, measured as 2 cm between the index finger and the proximal transverse crease and 2 cm between the long finger and the proximal transverse crease.

The February 2022 examiner also found objective evidence of localized pain on palpation of the joints and associated soft tissue. For the right hand, the examiner noted no gap between the pad of the thumb and fingers, no gap between the finger and proximal transverse crease of the hand on maximal finger flexion and no objective evidence of localized tenderness or pain on palpation of the joint or associated tissue.

Passive ranges of motion were found to be same as active for all measurements for the right hand as well as the left hand little finger and left thumb. Passive range of motion for the left index, long, and ringer finger were noted as follows:

Left Hand

MCP PIP DIP

Index finger flexion endpoint 80 70 50

Long finger flexion endpoint 85 70 50

Ring finger flexion endpoint 85 60 45

The examiner also found no gap between the pad of the thumb and fingers on passive ROM of either hand. The examiner noted a 1 cm gap between the index finger and proximal transverse crease of the left hand and a 1 cm gap between the long finger and proximal transverse crease of the left hand on maximal finger flexion on passive ROM. The examiner noted no additional loss of repetitive-use testing. The examiner noted that the examination was not during a flare-up or immediately after repetitive use over time. The examiner found additional estimated loss of range due to repetitive use over time and flare-ups

Left hand

MCP PIP DIP

Index finger flexion endpoint 70 50 35

Index finger extension endpoint 0 0 0

Long finger flexion endpoint 70 50 35

Long finger extension endpoint 0 0 0

Ring finger flexion endpoint 70 40 30

Ring finger extension endpoint 0 0 0

Little finger flex
verse crease of the left hand on maximal finger flexion on passive ROM. The examiner noted no additional loss of repetitive-use testing. The examiner noted that the examination was not during a flare-up or immediately after repetitive use over time. The examiner found additional estimated loss of range due to repetitive use over time and flare-ups

Left hand

MCP PIP DIP

Index finger flexion endpoint 70 50 35

Index finger extension endpoint 0 0 0

Long finger flexion endpoint 70 50 35

Long finger extension endpoint 0 0 0

Ring finger flexion endpoint 70 40 30

Ring finger extension endpoint 0 0 0

Little finger flexion endpoint 80 90 60

Little finger extension endpoint 0 0 0

Thumb finger flexion endpoint 90 80 N/A

Thumb finger extension endpoint 0 0 N/A

The examiner noted a 1.5 cm estimated gap between the pad of the thumb and fingers immediately after repetitive use over time or flare-ups. The examiner also noted a 1.5 cm estimated gap between the index finger and proximal transverse crease of the hand on maximal finger flexion and a 1.5 cm estimated gap between the long finger and proximal transverse crease of the hand on maximal finger flexion immediately after repetitive use or during a flare-up. The examiner also noted hand grip is 3/5. It was noted that the reduction in muscle strength is due to the Veteran's service connected left hand disability. The examiner found no muscle atrophy or ankylosis of any joint of the left or right hand. The Veteran did not use any assistive devices. The examiner noted that the Veteran's left hand, finger, and thumb conditions does not have functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis.

In addressing conflicting medical evidence, the examiner noted that the Veteran's right hand was within normal limits and undamaged. He stated that the Veteran's left hand muscle strength is noted on day of examination to be 3/5 active movement against gravity. The examiner noted that this equals significant loss of function often accompanied by atrophy and dramatic functional impact. The examiner did not find atrophy but did find dramatic functional impact due to the Veteran's muscle decrease and other abnormalities related to the left-hand service-connected disability, including pain with use and decreased range of motion.

Prior to addressing the individual ratings, the Board finds that the evidence of record persuasively demonstrates that the Veteran is left handed. While the March 2022 examiner noted the Veteran being right handed, all prior records, including the Veteran's enlistment examination and service treatment records as well as all of the Veteran's lay statements identify him as left handed. Therefore, the Board finds that the evidence of record persuasively shows that the Veteran is left hand dominant for rating purposes.

1. Entitlement to an increased rating for residuals of a fractured left hand (dominant), long finger

The Veteran's left hand disability is currented rated at 10 percent disabling under Diagnostic Code 5309-5229 based on limitation of motion and painful motion. Although this listing was previously called just "residual pain and deformity, fractured left hand," after the March 2022 rating decision, which assigned separate evaluations for the Veteran's other fingers, this rating was revised to provide a 10 percent rating under Diagnostic Code 5229, which rates the index or long finger.

The March 2022 Supplemental Statement of the Case explained that it was assigning the Veteran a 10 percent rating for "residual pain and deformity, fractured left hand," based on painful motion in the long finger. The Board has therefore recharacterized the name of this issue just to make it clearer that it is a rating for the left hand long finger.

Diagnostic Code 5229 is for rating the index or long finger based on limitation of motion. A 10 percent rating is warranted where there is a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A non-compensable rating is warranted where there is gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees for each. The rating is applied to each finger individually.

The Board notes that the Veteran's long finger does have limitation of motion on flexion. There is no evidence of limitation of extension. The February 2022 examiner found that due to limitation of motion, the
ip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A non-compensable rating is warranted where there is gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees for each. The rating is applied to each finger individually.

The Board notes that the Veteran's long finger does have limitation of motion on flexion. There is no evidence of limitation of extension. The February 2022 examiner found that due to limitation of motion, the largest gap between the fingertip of the long finger and the proximal transverse crease of the palm is 1.5 cm during flare-ups and immediately after repetitive use over time. As such, under Diagnostic Code 5229, a non-compensable rating is warranted because the gap is less than one inch (2.5 cm).

38 C.F.R. § 4.59 specifically addresses recognition of actual painful motion of joints due to healed injury. The examiner identified pain as contributing to significant limitation of function of the Veteran's long finger. 38 C.F.R. § 4.59 indicates that at least the minimum compensable rating for the joint is warranted. Diagnostic Code 5229 indicates that the minimum compensable rating is 10 percent disabling. As such, a 10 percent rating, but no higher, is warranted under 38 C.F.R. § 4.59 for actual painful motion of the Veteran's long finger. The Veteran has never been found to have any ankylosis, and there are no other diagnostic codes which could be applied that would allow for any higher rating.

Based on the above, the Board concludes that the evidence persuasively favors against a rating higher than 10 percent for residuals of a fracture left hand (dominant), long finger. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F. 4th 776 (2021).

2. Entitlement to an increased rating for residuals of a fractured left hand (dominant), ring finger

The Veteran's ring finger is currently rated under Diagnostic Code 5230 at a noncompensable, zero percent, rating for limitation of motion and painful motion. The Board changes the Diagnostic Code to 5309-5230 and grants a 10 percent rating, but no higher.

Diagnostic Code 5230 is for rating the ring finger or little finger based on limitation of motion. The only rating available is a non-compensable, zero percent, rating for any limitation of motion.

The Board notes that the Veteran's ring finger does have limitation of motion on flexion. There is no evidence of limitation of extension of any of the joints of the Veteran's left hand and its fingers. The February 2022 examiner also noted painful motion and pain on palpation of the Veteran's ring finger.

While the Veteran has painful motion in his ring finger, 38 C.F.R. § 4.59 does not provide a basis for a compensable rating for that finger, as 0 percent is already the maximum available rating for any limitation of motion in the ring finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Board notes that even total loss of any range of motion in the little finger due to ankylosis would not allow for a compensable rating. Under Diagnostic Code 5227, favorable or unfavorable ankylosis of the ring or little finger is to be rated as noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5227. A compensable rating for a finger disability requires amputation, or the functional equivalent thereof. See 38 C.F.R. § 4.71a, Diagnostic Code 5156. There is absolutely no evidence of record indicating that the Veteran has impairment anywhere near the level that would be considered equivalent of an amputation.

The Board has also considered, however, the basis of the Veteran's left hand injury, which was a crush injury to the left hand, damaging the muscles. The Veteran's ring finger, middle finger, index finger, and thumb are all service connected as residuals of the same injury to his left hand that is rated under Diagnostic Code 5309, for Group IX muscle injuries. While Diagnostic Code 5230 allows for only a 0 percent rating, the Note to Diagnostic Code 5309 for rating the forearm and hand states that "isolated muscle injures are rare, being nearly always complicated with injures of bones, joints, tendons, etc. and therefore to rate on limitation of motion at a minimum of 10 percent." 38 C.F.R. § 4.73 Diagnostic Code 5309, Note (emphasis added). The Board will therefore allow that the Veteran's ring finger, which has already been assigned a separate noncompensable rating, should be assigned a 10 percent rating, as this is the minimum rating awarded under Diagnostic Code 5309. As such, under this designation, the Veteran's ring finger warrants a 10 percent rating for limitation of motion under Diagnostic Code 5309-5230. This also allows for separate compensable rating under the appropriate Diagnostic Codes 5228 for the thumb, and Diagnostic Code 5229 for the index finger and long fingers respectively. There are no other regulations or bases, however, which would allow for a rating higher than 10 percent.

Based on the above, the Board grants the Veteran the benefit of the doubt and concludes that an increased rating of 10 percent disabling, no higher, is warranted for the residuals of a fracture left hand (dominant), ring finger. The evidence is persuasively against finding that any rating higher than 10 percent is warranted. See Lynch, 21 F. 4th 776.

3. Entitlement to an increased rating for residuals of a fracture left hand (dominant), index finger

The Veteran's index finger is currently rated under Diagnostic Code 5229 at 10 percent for limitation of motion and painful motion.

The Board notes that the Veteran's index finger does have limitation of motion on flexion. There is no evidence of limitation of extension. The February 2022 examiner found that the largest gap between the fingertip of the index finger and the proximal transverse crease of the palm is 1.5 cm during flare-ups and immediately after repetitive use over time, and the August 2015 VA examiner found a gap of 2 cm. As such, under Diagnostic Code 5229, a non-compensable rating is warranted because the gap is less than one inch (2.5 cm).

38 C.F.R. § 4.59 specifically addresses recognition of actual painful motion of joints due to healed injury. The examiner identified pain as contributing to significant limitation of function of the Veteran's index finger. 38 C.F.R. § 4.59 indicates that at least the minimum compensable rating for the joint is warranted. Diagnostic Code 5229 indicates that the minimum compensable rating is 10 percent disabling. As such, a 10 percent rating, no higher, is warranted under 38 C.F.R. § 4.59 for actual painful motion of the Veteran's index finger. There are no other regulations or bases which would allow for a rating any higher than 10 percent.

Based on the above, the Board concludes that the evidence persuasively favors against a rating higher than 10 percent for the residuals of a fracture left hand (dominant), index finger. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch, 21 F. 4th 776.

4. Entitlement to an increased rating for residuals of a fractured left hand (dominant), thumb

The Veteran's thumb is currently rated under Diagnostic Code 5228 at a non-compensable, zero percent rating, for limitation of motion and painful motion.

Diagnostic Code 5228 is for rating the thumb based on limitation of motion. A 20 percent rating is warranted where there is a gap of two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted where there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A non-compensable rating is warranted where there is a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.

The Board notes that the Veteran's thumb does have limitation of motion; the February
the thumb based on limitation of motion. A 20 percent rating is warranted where there is a gap of two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted where there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A non-compensable rating is warranted where there is a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.

The Board notes that the Veteran's thumb does have limitation of motion; the February 2022 examiner found that the largest gap between the thumb pad and the fingers with the thumb attempting oppose the fingers is 1.5 cm during flare-ups and immediately after repetitive use over time. As such, under Diagnostic Code 5228, a non-compensable rating is warranted because it is less than one inch (2.5 cm).

38 C.F.R. § 4.59 specifically addresses recognition of actual painful motion of joints due to healed injury. The examiner identified pain as contributing to significant limitation of function of the Veteran's thumb. 38 C.F.R. § 4.59 indicates that at least the minimum compensable rating for the joint is warranted. Diagnostic Code 5228 indicates that the minimum compensable rating is 10 percent disabling. As such, a 10 percent rating, no higher, is warranted under 38 C.F.R. § 4.59 for actual painful motion of the Veteran's thumb.

Based on the above, the Board concludes that the evidence persuasively favors an increased rating of 10 percent disabling, but no greater, for the residuals of a fracture left hand (dominant), thumb. The evidence is not in approximate balance regarding the assignment of any higher rating. See Lynch, 21 F. 4th 776.

* * *

The Board has considered other Diagnostic Codes for residuals of a fracture of the Veteran's left hand and finds that they are either inapplicable or do not provide a higher rating.

The Board finds that Diagnostic Code 5216 through 5227 are not applicable. Each of these Diagnostic Codes requires ankylosis of at least one of the pertinent joints. The persuasive evidence of record shows that there is no ankylosis, in a favorable or unfavorable position, of any joint of the Veteran's service connected left hand or its fingers. As such, these Diagnostic Codes 5216 through 5227 are not applicable.

The Board finds Diagnostic Code 5308 does not apply because it is based on limitation of extension. The persuasive evidence of record shows that there is no limitation of extension in any joint in the for the Veteran's left hand or his fingers. As such, Diagnostic Code 5308 is not applicable.

The Board considered Diagnostic Code 5307 but finds that it does not provide a higher rating. The examiner noted that the Veteran's loss of strength in his left hand is significant, stating it was 3/5 active movement against gravity. The examiner also described the pain and symptoms affecting the Veteran's left hand and finger as moderate in severity. Review of Diagnostic Code 5307 identifies slight, moderate, moderately severe, and severe for descriptions necessary for ratings of 0, 10, 30, and 40 percent for a dominant hand. The qualifications for each are not described in the rating criteria. The Board notes that 5/5 strength corresponds to normal strength. Taking it a logical step forward, 4/5 strength would show in increase from normal and would correspond to slight symptoms. A further increase in symptoms resulting in 3/5 strength would then correspond to moderate symptoms. Continuing on, 2/5 strength would correspond to moderately severe symptoms, and 1/5 strength to severe symptoms. This would leave 0/5 strength that correspond to functional impairment of such degree that no effective function remains other than that which would be equally well served by an amputation with prothesis.

Based on the above definition of slight through severe, with respect to Diagnostic Code 5307, on the examiner's finding of 3/5 strength and moderate severity of pain and symptoms, a rating of 10 percent would be warranted for residuals of a fracture of the Veteran's dominant left hand. Diagnostic Code 5309 provides for additional separate ratings for each of the fingers, allowing for a higher rating than a single 10 percent rating under Diagnostic Code 5307. Therefore, the Board finds Diagnostic Code 5309 rather than 5307 should be used to rate the Veteran's left hand disability.

The Board considered the Veteran's lay statements regarding the functional impact of his left hand and finger disabilities. The Veteran is competent to report his own observations with
above definition of slight through severe, with respect to Diagnostic Code 5307, on the examiner's finding of 3/5 strength and moderate severity of pain and symptoms, a rating of 10 percent would be warranted for residuals of a fracture of the Veteran's dominant left hand. Diagnostic Code 5309 provides for additional separate ratings for each of the fingers, allowing for a higher rating than a single 10 percent rating under Diagnostic Code 5307. Therefore, the Board finds Diagnostic Code 5309 rather than 5307 should be used to rate the Veteran's left hand disability.

The Board considered the Veteran's lay statements regarding the functional impact of his left hand and finger disabilities. The Veteran is competent to report his own observations with regard to the severity of his hip symptoms, including reports of pain and discomfort. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has stated that he has pain, swelling, and stiffness, and flare ups that prevent him from working in the yard or on his car. These statements are credible, and the ratings assigned would actually encompass even more severe symptomatology than that described by the Veteran. The Veteran's reports of painful motion have been considered, and they are in large part the basis of the ratings now assigned. To the extent that the Veteran has argued his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions.

The Board also points out that all of the ratings discussed above apply to the entire period on appeal, which is May 28, 2015 to the present. This is the date that the Veteran submitted his Intent to File a Claim, and because the earlier VA examinations have been held to be inadequate, the February 2022 VA examination is used as the basis for rating the entire appeal period. Furthermore, effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Here, the findings at the February 2022 VA examination are consistent with the Veteran's reported and demonstrated symptomatology throughout the appeal period.

REASONS FOR REMAND

Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. The February 2022 examiner indicated that the Veteran is unemployed, cannot function with one hand, and cannot work with only his right hand. Therefore, the Board finds TDIU is raised by the facts of the case.

The Board notes that all of the current separate ratings for the Veteran's left hand stem from a single disability. See 38 C.F.R. § 4.16(a) ("for the [] purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (2) disabilities resulting from common etiology or a single accident.") Even considering all of the ratings together, the Board find it cannot grant schedular TDIU in the first instance because the Veteran currently does not meet schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Therefore, the Board remands initial consideration of TDIU, including consideration of extraschedular TDIU, to the AOJ.

The Board also notes that the Veteran is currently unemployed. However, the record does not identify how long the Veteran has been unemployed, what his level of education and job training are, what his job history is, or how much his income was at his last employment to determine if it was gainful or not.

Based on the foregoing, the Board finds it must remand TDIU for further development and initial consideration by the AOJ.

The matters are REMANDED for the following action:

1. Contact the Veteran and request that he file a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate the TDIU claim.

2. After review of the evidence of record, adjudicate the Veteran's TDIU claim. If the benefit sought on appeal is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case.

Mary Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Boushehri, Darjush M.

The Board's decision
by the AOJ.

The matters are REMANDED for the following action:

Mary Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Boushehri, Darjush M.

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.

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