Citation Nr: 1753431 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-04 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable rating for residuals of a right hand burn with limited flexion of the right thumb. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1979 to November 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans (VA) Regional Office (RO). In a November 2016 decision, the Board remanded the Veteran's issue on appeal for additional development. While in remand status, a May 2017 rating decision granted service connection for scar, right hand, with a noncompensable evaluation, effective November 27, 1982. This matter has now returned to the Board for appellate consideration. FINDING OF FACT The weight of the competent evidence shows the Veteran has painful motion in his right hand. CONCLUSION OF LAW The criteria for an initial compensable rating for a right hand thumb and index finger injury have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.59, 4.71a, 118, Diagnostic Codes (DC) 5224, 5228; DC 7801, 7802, 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran and his representative have not alleged any deficiencies in VA's duties to notify and assist. See, e.g., September 2017 Hearing Memorandum. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. The Veteran asserts that his right hand disability warrants a compensable rating. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of another. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6. Vet. App. 259, 262 (1994) (stating that when determining whether separate evaluations are warranted, "the critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions"). The Veteran is competent to provide evidence of symptoms observed by his senses, such as pain and swelling. However, he is not competent to measure range of motion or instability as this requires specialized testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran's statements credible to report his observable symptoms. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. § 4.59. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (concluding that § 4.59 was potentially applicable to a claim for a compensable evaluation for a bilateral foot disability because the record before the Board contained "competing evidence" as to whether the veteran's foot was painful on motion). Under Diagnostic Code 5224 (major), a 10 percent rating is warranted for favorable ankylosis of the thumb, and a 20 percent rating for unfavorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5224. Diagnostic Code 5228 addresses limitation of motion in the thumb. When there is a gap of one to two inches (2.5 to 5.1cm.) between the thumb pad and the fingers, a 10 percent rating is applicable. Id. at Diagnostic Code 5228. However, when there is a gap of less than one inch (2.5 cm), then a non-compensable rating is assigned. Id. After a review of the evidence, the Board finds that the weight of the evidence is for a compensable rating, but no more, for the Veteran's painful right hand motion. The examiner in the September 2013 VA examination found that the Veteran's right hand had limited motion. During this examination, the examiner recorded objective pain in the Veteran's index finger. See September 2013 VA Examination, at p. 1, 2. The examiner found limitation of motion or evidence of painful motion of the right thumb and index finger. The examiner also noted the functional impact the Veteran's disability had in his day-to-day life in that the Veteran used an assistive device, thumb spica brace, nightly. Id. at 5. The examiner explained that while there was a limitation of motion or painful motion, it was limited to the thumb and index finger, and there was no inability to oppose the thumb. Id. at 2. The examiner indicated that there was a gap between the fingertips and proximal transverse crease of the palm, but that the gap was less than 1 inch. Id. The examiner also determined the Veteran was able to perform repetitive-use testing with three repetitions; there was not additional limitation of motion for any fingers post-test; and, there was not a gap between the thumb pad and fingers, but there was a gap of less than one inch between the index finger and the proximal transverse crease in the palm. Id. Regarding functional impact, it was noted that he was working as a welder, does not know if the current pain and numbness would allow him to do this job as he is unable to hammer. Id. at 6. Lastly, the examiner found that the Veteran did not have ankylosis of the thumb or fingers. Id. at 4. In the January 2017 VA examination, the examiner noted abnormal range of motion in the right hand. However, the examiner found that there was no gap between the thumb and fingers, and no gap between the finger and proximal transverse crease of the hand contributing to functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no functional loss. Id. The examiner also found that there was no ankylosis on the right hand. Id. The examiner did find that there was objective evidence of localized tenderness and degenerative/traumatic arthritis, but not in multiple joints of the same hand. Id. During this examination, the Veteran described his pain as a 3/10 on the pain scale, and the examiner noted mild restriction of range of motion of the right thumb in flexion and abduction. Id. at 3. In the Veteran's medical history, the Veteran described right hand pain as needles and/or stabbing pain that is worse when he uses his hand, at night, and when it's cold. Id. at 2, 3. During this examination, the Veteran was questioned regarding pain on both passive and active motion, and on both weight bearing and non-weight bearing joints. Id. The examiner stated that there was no evidence of pain on the passive range of motion testing or when the joint was used in a non-weight bearing situation. See generally Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the contralateral joint was tested. The Board finds that the Veteran is not entitled to a compensable rating for purely limitation of motion nor for ankylosis in his right hand. In both the September 2013 and January 2017 examinations, the examiners affirmatively stated that the Veteran did not have ankylosis in either his thumb or fingers. The Veteran is therefore not entitled to a compensable rating under Diagnostic Code 5224. Also in both examinations, the examiners found that there was no gap between the thumb and fingers. The examiners indicated that there was no gap, or a gap of less than one inch, between a finger and the proximal transverse crease. As a result, the Veteran is not entitled to a compensable rating under Diagnostic Codes 5228, 5229. The Board finds that the VA examiners' opinions are competent, credible, and persuasive. As such, the Board places much weight on them. 38 C.F.R. § 4.71a. Although the Veteran is not entitled to a compensable rating for limitation of motion or ankylosis, the Board does find that a 10 percent rating is warranted for painful motion under Diagnostic Code 5228 per 38 C.F.R. § 4.59. In the September 2013 VA examination, the Veteran had painful motion in his right thumb and index finger. Additionally, the Board notes that at his January 2017 VA examination, the Veteran reported pain at a 3/10 on the pain scale specifically on the dorsum of the right thumb and over the first metacarpal bone area. Included in his medical history at the 2017 VA examination, the Veteran described intermittent stabbing pain in his hand as well as worsening pain when it is cold, at night, or through use. The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, with consideration of all pertinent disability factors and competent evidence, there is an appropriate basis for assigning the minimum compensable schedular rating for functional impairment/loss of the right hand/thumb. Accordingly, a 10 percent rating is granted under Diagnostic Code 5228. See Sowers v. McDonald, 27 Vet. App. 472, 478-79, 482 (2016) (stating that application of 38 C.F.R. § 4.59 warrants at least the minimum compensable rating for painful motion of a joint); 38 C.F.R. § 4.59. The Board has also considered whether a compensable rating can be assigned for the Veteran's right hand residual scar. However, the medical evidence shows that a compensable rating for scarring is not warranted. Under Diagnostic Code 7804, the Veteran does not have scarring that is currently painful. 38 C.F.R. § 4.118, DC 7804. In the January 2017 VA examination, he indicated that his scars are itchy, but not painful. The examiner also stated that the scars were not unstable. See January 2017 VA examination. To the extent that the Veteran indicated his scars were painful at the September 2013 VA examination, the Board finds the evidence weighs against a finding of chronic pain associated with the scar at as he subsequently denied pain in January 2017. See September 2013 VA examination. Additionally, the Veteran's scar is 2.3 sq. cm., which is insufficient to be compensated under Diagnostic Codes 7801 and 7802, which require 39 sq. cm. and 929 sq. cm., respectively. 38 C.F.R. § 4.118, DCs 7801, 7802. As such, a compensable rating for scars is not warranted. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evidence shows that the Veteran's service-connected right hand injury warranted the minimum compensable rating for painful motion under Diagnostic Code 5228 per 38 C.F.R. § 4.59. ORDER A compensable rating of 10 percent for painful right hand/thumb motion is granted for the entire period on appeal. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs