Citation Nr: 0004758	
Decision Date: 02/24/00    Archive Date: 02/28/00

DOCKET NO.  97-11 680	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Buffalo, New York


THE ISSUE

Evaluation of status post fracture of the left little finger, 
evaluated as noncompensably disabling from July 31, 1995.


REPRESENTATION

Appellant represented by:	New York Division of Veterans' 
Affairs


ATTORNEY FOR THE BOARD

M. Miyake, Associate Counsel



INTRODUCTION

The veteran served on active duty from April 1970 to 
April 1973.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 1996 rating decision by the RO 
that granted a claim of entitlement to service connection for 
status post fracture of the left little finger and assigned a 
noncompensable evaluation, effective from July 31, 1995.  
Previously, this case was before the Board in August 1998 and 
in June 1999 when it was remanded for additional development.

The Board notes that the United States Court of Appeals for 
Veterans Claims (known as the United States Court of Veterans 
Appeals prior to March 1, 1999) recently held that an appeal 
from an original award does not raise the question of 
entitlement to an increased rating, but instead is an appeal 
of an original rating.  Fenderson v. West, 12 Vet. App. 119 
(1999).  Consequently, the Board has characterized the rating 
issue on appeal as a claim for a higher evaluation of an 
original award.


FINDING OF FACT

The veteran's service-connected status post fracture of the 
left little finger is manifested by subjective complaints of 
tenderness and pain, but no objective medical evidence of 
either loss of functional mobility or complete bony fixation 
of any of the joints of the finger.


CONCLUSION OF LAW

A compensable rating for service-connected status post 
fracture of the left little finger is not warranted.  
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 
4.71a (Diagnostic Code 5227), 4.118 (Diagnostic Code7804) 
(1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a 
schedule of ratings that is based, as far as can practicably 
be determined, on the average impairment of earning capacity.  
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999).  Each 
service-connected disability is rated on the basis of 
specific criteria identified by diagnostic codes.  38 C.F.R. 
§ 4.27 (1999).  In cases where the original rating assigned 
is appealed, consideration must be given to whether the 
veteran deserves a higher rating at any point during the 
pendency of the claim.  Fenderson, supra.

The veteran's service-connected status post fracture of the 
left little finger has been evaluated as zero percent 
disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5227 
(1999).  Under Diagnostic Code 5227, ankylosis of the fourth 
or fifth finger (major or minor hand) is evaluated as zero 
percent disabling.  See 38 C.F.R. § 4.71a (1999).  (Ankylosis 
is defined as immobility and consolidation of a joint due to 
disease, injury, or surgical procedure.  See Lewis v. 
Derwinski, 3 Vet. App. 259 (1992)).  Disability tantamount to 
extremely unfavorable ankylosis will be rated as amputation 
under Diagnostic Codes 5152 through 5156.  38 C.F.R. § 4.71a, 
Note following Diagnostic Code 5227 (1999).  (Extremely 
unfavorable ankylosis is defined as all joints of the finger 
being in extension, in extreme flexion, or when there is 
rotation and angulation of the bones.  See 38 C.F.R. § 4.71a, 
Note (a) following Diagnostic Code 5219 (1999).)

The veteran's service medical records show that, in 
December 1972, he was seen after he caught the tip of his 
left fifth finger in a door.  It was noted that the tip was 
gone with the fingernail intact.  X-ray of the left little 
finger revealed a fracture of the distal phalanx with chip 
and avulsion of a portion of the distal phalanx.  

At a February 1996 VA examination, the veteran gave a history 
of injuring his left finger when a closing door jammed his 
left hand.  He denied any tingling sensation 

or numbness of the left hand, which had not lost its 
functional mobility.  It was noted that the veteran was right 
handed and that he had worked as a bartender for 15 years.  
Examination of the five digits of the left hand revealed no 
gross deformity.  Left-hand grip was 90 pounds whereas the 
right was 105 pounds.  There were no sensory deficits 
elicited.  Range of motion of the left fifth digit was 70 
degrees of proximal interphalangeal joint flexion, 90 degrees 
of distal interphalangeal flexion, and 20 degrees on 
abduction.  The assessment was status post chip fracture of 
the left fifth digit with functional mobility and no evidence 
of neurologic deficits.

The Board noted in its August 1998 remand that, although the 
February 1996 VA examination report indicated that there was 
no gross deformity of the left little finger, service medical 
records showed that the veteran cut off the tip of his left 
little finger.  Consequently, the Board requested another VA 
examination to determine whether the tip of the veteran's 
left little finger was present, whether there was a scar, 
whether the veteran's subjective complaints of tenderness and 
pain were credible, whether the left finger was ankylosed, 
and whether the little finger caused marked interference with 
employment.  The record, however, indicates that the veteran 
failed to report for a scheduled VA examination in 
September 1998.  In a written statement, received in 
April 1999, the veteran indicated that he was never given 
notice to report for a VA examination, other than the one he 
had reported to in February 1996, and, therefore, requested 
another examination.  In June 1999, the Board remanded the 
case to afford the veteran another VA examination.  The RO 
scheduled the veteran for a VA examination in August 1999; 
however, the veteran failed to report.

With respect to the examinations scheduled in conjunction 
with the Board's prior remands, it should be pointed out 
that, the rating decision appealed by the veteran was the 
original rating for status post fracture of the left little 
finger, see Fenderson, supra, and also was the result of an 
original compensation claim.  This is significant because the 
provisions of 38 C.F.R. § 3.655 (1999) allow for the 
adjudication of the claim based on the evidence of record 
when the claimant fails to report for a VA 

examination in such instances.  38 C.F.R. § 3.655(b) (1999).  
Accordingly, the Board must decide this matter on the current 
record.

Based on the evidence of record, the Board finds that a 
compensable evaluation is not warranted.  The most recent 
medical evidence regarding the veteran's left little finger 
is the February 1996 VA examination report.  That report does 
not contain a diagnosis of ankylosis of any of the joints of 
the left little finger.  See Lewis, supra.  The examination 
report also suggests that, given the mobility of the joints 
of the finger, there is no basis for concluding that 
functional debility experienced by the veteran equates to 
extremely unfavorable ankylosis.  See 38 C.F.R. § 4.71a, Note 
following Diagnostic Code 5219 (1999).  Consequently, an 
increased (10 percent) schedular rating is not warranted for 
the veteran's service-connected disability under Diagnostic 
Code 5227.  See Johnston v. Brown, 10 Vet. App. 80 (1997).

The Board has taken into account the veteran's subjective 
complaints of pain, and notes that the lack of objective 
evidence of any functional loss attributable to pain on use 
has been considered in arriving at the current assessment.  
See DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).  In 
this regard, the Board finds that the zero percent evaluation 
currently assigned pursuant to Diagnostic Code 5227 takes 
into account his complaints.  

The Board has also considered whether the veteran is entitled 
to compensation for other residual of the injury such as a 
scar.  Significantly, the record on appeal is devoid of 
evidence that the veteran has scarring of the left little 
finger that is poorly nourished, ulcerated, tender and 
painful, or otherwise symptomatic in a manner beyond that 
contemplated by the symptoms considered in the rating under 
Diagnostic Code 5227.  38 C.F.R. § 4.118, Diagnostic Codes 
7803, 7804, 7805 (1999).  Additionally, there is no 
indication that the veteran's finger is both tender and 
painful on objective demonstration such that the fracture 
residuals could be 

rated as analogous to a tender and painful scar.  Indeed, no 
findings of tenderness or pain were made by the February 1996 
examiner.

Given the record as described above, the Board finds that 
there is no basis under any of the Diagnostic Codes discussed 
above for awarding a compensable rating at any time during 
the pendency of this claim.  Fenderson, supra.

Turning to the question of whether the RO should have 
referred this issue to the VA Central Office under 38 C.F.R. 
§ 3.321(b)(1) for consideration of an extraschedular rating, 
the Board finds that such an action was not necessary.  
Although the veteran has argued that his left little finger 
was very tender and sore, and definitely interfered with his 
employment as a bartender, the evidence does not show an 
exceptional or unusual disability picture as would render 
impractical the application of the regular schedular rating 
standards.  See 38 C.F.R. § 3.321(b)(1).  The current 
evidence of record does not demonstrate that a left little 
disability has resulted in frequent periods of 
hospitalization or in marked interference with employment.  
38 C.F.R. § 3.321.  Indeed, the veteran himself has indicated 
that it did not adversely affect employment such that the 
submission of employment records would be helpful.  While 
there is likely some adverse effect on employment, it bears 
emphasis that the schedular rating criteria are designed to 
take such factors into account.  The schedule is intended to 
compensate for average impairments in earning capacity 
resulting from service-connected disability in civil 
occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees 
of disability specified [in the rating schedule] are 
considered adequate to compensate for considerable loss of 
working time from exacerbations or illnesses proportionate to 
the severity of the several grades of disability."  
38 C.F.R. § 4.1.  Therefore, given the lack of evidence 
showing unusual disability not contemplated by the rating 
schedule as to the left little finger disability, the Board 
concludes that a remand to the RO for referral of this issue 
to the VA Central Office for consideration of an 
extraschedular evaluation is not warranted.



ORDER

A compensable evaluation for status post fracture of the left 
little finger is denied.



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals