BVA9501564 DOCKET NO. 93-18 223 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to a 10 percent rating for residuals of injury to the middle and ring fingers of the right hand. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from January 1984 to October 1987. The issue of entitlement to service connection for carpal tunnel syndrome of the right wrist has been certified to be in appellate status. Although service connection for this disorder was denied by the regional office on April 6, 1992, it is not clear whether the veteran has ever filed a claim for this disorder. Moreover, the Board has failed to find a notice of disagreement with respect to this "issue." Accordingly, the sole issue on appeal is as stated on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL At his personal hearing in April 1993, the veteran testified that he is right handed, and that although he has no difficulty making a fist, it is moving the right middle and ring fingers individually which is a problem for him. He has occasional symptoms of discomfort, primarily when lifting or gripping. These symptoms are just along the fingers, especially in the knuckles, although sometimes it goes above the wrist. (transcript of hearing at pages 1-2, or t. 1-2.) He has a job as a mail handler at the Post Office, which requires him to lift lots of objects and use his fingers a great deal. (t. 3.) At home, he snaps his knuckles to make them move, makes a fist and cracks it, or uses hot water, to loosen up his hands. He has occasional discomfort with picking up a child, a pencil, or with handshaking. The representative asked for consideration of 38 C.F.R. § 4.59. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, the Board is unable to conclude that the preponderance of the evidence is against the claim for a 10 percent rating for residuals of injury to the middle and ring fingers of the right hand. FINDING OF FACT The veteran has reported persistent problems with pain of the middle and ring fingers of the right hand. CONCLUSIONS OF LAW The manifestations of the injury to the middle and ring fingers of the right hand warrant a 10 percent rating. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20, 4.31, 4.40, 4.59, 4.71a, Diagnostic Code 5223 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The veteran's residuals of injury to the middle and ring fingers of the right hand has been rated as favorable ankylosis of two digits of the major hand. When ankylosis of two digits of the major hand, which are the middle and ring finger, limits motion to less than 1 inch (2.5 cms.) in either direction, it is not considered disabling. If such disability otherwise limits the fingers' motion to within 2 inches (5.1 cms.) from the transverse fold of the palm, it is rated 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5223, note (a). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention is recognize the 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 of 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 nonweight bearing, and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the 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 seriously disabled. 38 C.F.R. § 4.40. Service connection was granted for the disability at issue by a June 1988 rating decision, based on evidence that in June 1987 the veteran sustained right middle and ring finger trauma when an attic door fell on his hands, although no fracture resulted. A 10 percent rating was assigned effective from October 16, 1987. At VA examination in December 1987, the examiner found diminished range of motion and swelling of the proximal interphalangeal joints of the fingers at issue. On a VA examination report signed in March 1991, it was stated that the entire right hand was capable of grasp and hook in a normal fashion. Sensation and muscular development, as exemplified by handshake, were normal. The pulp spaces of the fingers showed normal use. Closure of the fingers of the hand was actively and passively carried out with complaints of mild pain involving the "interossisi" of the right hand. Skin sensation of pinprick to the hands was normal. The right hand was "normal." The examiner remarked that the veteran probably had some mild residual stiffness of the fingers of both hands, which, with proper exercising, should result in normal hand function. X-rays of the right hand at that time showed no osseous abnormality. An April 1991 rating decision proposed to reduce the rating for residuals of injury to the right middle and ring fingers to noncompensable, and a July 1991 rating decision carried out this proposal, effective from October 1, 1991. At his personal hearing in April 1993, the veteran described his job as involving grabbing labels and large, heavy-duty burlap sacks of different sizes and weights. He had to use his fingers to open the sacks, to remove little plastic rings, and to undo the belt or rope wrapped around the sack. He had to pick up the sack and dump it. If it was heavy, he had to grip different parts of the sack in order to dump the whole thing out. (t. 3.) The representative clarified that the veteran meant that he had to shift the weight to his palms rather than grasping with his fingers. The veteran concurred that he had a tendency to try to "palm it," although he still had to grip the bag somewhere, to keep it from "flying." (t. 3.) We have considered the veteran's contentions and testimony that the rating for his residuals of injury to the middle and ring fingers of the right hand should not have been reduced. The most recent examination found that closure of the fingers is actively and passively carried out with complaints of mild pain. In a July 1993 statement, the veteran vigorously asserted that the service-connected disability was productive of considerable discomfort. His words were " I have pain daily." The Board recognizes that the "objective" evidence is less than overwhelmingly in the veteran's favor. Nevertheless, the Board is unprepared to dismiss the complaints of pain as utterly lacking in probative value. Accordingly, with primary reliance on the provisions 38 C.F.R. § 4.40 and § 4.59, the Board is persuaded that a 10 percent rating is in order. We have also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's residuals of injury to the middle and ring fingers of the right hand is not so unusual or extraordinary as to warrant extraschedular rating. For example, residuals of injury to the middle and ring fingers of the right hand does not result in marked interference with employment or in frequent hospitalization. ORDER A rating of 10 percent for residuals of injury to the middle and ring fingers of the right hand is granted, subject to controlling regulations affecting the payment of monetary awards. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.