191121-44744

• Court: Board of Veterans' Appeals
• Decided: June 30, 2020
• Docket: 191121-44744
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 06/30/20 Archive Date: 06/30/20

DOCKET NO. 191121-44744 DATE: June 30, 2020

ORDER

A rating higher than 20 percent for left thumb amputation is denied.

A compensable rating for a scar, dorsum right hand and PIP, right finger is denied.

REMANDED

Entitlement to a compensable rating for chronic ano fissure is remanded.

FINDINGS OF FACT

1. The evidence does not establish that the Veteran’s left thumb was amputated with metacarpal resection.

2. The evidence does not establish that the total area of the Veteran’s scar, dorsum right hand and PIP, right finger, is 929 square centimeters or greater.

CONCLUSIONS OF LAW

1. The criteria for a rating higher than 20 percent for left thumb amputation have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5152.

2. The criteria for a compensable rating for scar, dorsum right hand and PIP, right finger, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1977 to May 1980 and from October 1980 to December 1991.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran filed a notice of disagreement selecting direct review of the evidence considered by the RO.

The Veteran seeks a rating higher than 20 percent for left-thumb amputation, a compensable rating for a scar of the right hand, and a compensable rating for chronic ano fissure.

Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition.

1. Left Thumb Amputation

The Veteran’s left thumb amputation is rated under Diagnostic Code (DC) 5152. 38 C.F.R. § 4.71a. Under DC 5152, the ratings are dependent on whether the thumb is of the major (dominant) or minor (non-dominant) hand; here, the Veteran is right-handed, so the ratings are for the thumb of the minor hand. Id. Thus, a 20-percent rating is warranted where the thumb was amputated at distal joint or through distal phalanx, or at the metacarpophalangeal joint or through the proximal phalanx; and, a 30-percent rating, which is the highest available under this schedule, is warranted where the thumb was amputated with metacarpal resection. Id.

At a November 7, 2019 VA examination, it was noted that the Veteran’s left thumb was amputated at the distal joint or through distal phalanx. There was no discernable tissue loss or scar. There was pain moving the IP joint. The amputation was found not to affect the Veteran’s ability to work. This examination is the only relevant evidence of record.

Given the evidence shows the left-thumb amputation was at the distal joint or through distal phalanx, a 20-percent rating is warranted. Notwithstanding the Veteran’s report of pain moving his thumb, a rating higher than 20 percent cannot be awarded by combining this rating under DC 5152 with another rating. 38 C.F.R. § 4.68 (Amputation rule). For a higher rating to be assigned, the evidence needs to show that the Veteran’s left thumb was amputated with metacarpal resection. 38 C.F.R. § 4.71a, DC 5152.

2. Scar of Right Hand

The Veteran’s scar, dorsum right hand and PIP, right finger is rated under DC 7802, for scars not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under DC 7802, a single, 10-percent rating is available where the area of the scar totals 929 square centimeters or greater. Id.

At the November 7, 2019 VA examination, the right-hand scar was measured to be approximately 0.35 square centimeters. The Veteran reported the scar was not painful. The examiner found no functional limitation, no impact of the scar on the Veteran’s work, and no other pertinent findings. This examination is the only relevant evidence of record.

Because the area Veteran’s right-hand scar is not 929 square centimeters or greater, the criteria for a 10-percent rating have not been met. 38 C.F.R. §§ 4.31, 4.118.

REASONS FOR REMAND

3. Chronic Ano Fissure

The Veteran’s chronic ano fissure is rated under DC 7335, which provides that the disability be rated under DC 7332. 38 C.F.R. § 4.114. Though a VA examination was provided in November 2019, it is not clear from the examination report that the Veteran was asked about the criteria relevant for rating the disability under DC 7332. Accordingly, a new, adequate examination must be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)

The matter is REMANDED for the following action:

Schedule the Veteran for an examination regarding the current severity of his service-connected chronic ano fissure. Ensure that the examiner provides a full description of the disability and reports all signs and symptoms necessary for evaluating the Veteran’s disability under Diagnostic Code 7332.

K. Parakkal

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board M. Davis, 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.