Citation Nr: 1754724 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-38 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease in the left wrist. 2. Entitlement to an evaluation in excess of 10 percent for residuals of left middle finger injury. 3. Entitlement to service connection for a left arm disorder, to include neurologic involvement, as secondary to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1975 to September 1975. These matters come before the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs, Regional Office, located in Houston, Texas (RO), which denied the benefits sought on appeal. The issue of entitlement to service connection for a left arm disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left wrist disability is manifested by degenerative joint disease that results in painful motion and weakness, but without evidence of ankylosis of the left wrist. 2. The Veteran's left middle finger disability causes limitation of motion, pain, and functional impairment, but the disability is not analogous to amputation of the finger with metacarpal resection. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 10 percent for left wrist degenerative joint disease have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2017). 2. The criteria for a rating in excess of 10 percent for residuals of left middle finger injury have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist VA's duty to notify was satisfied by letter dated in March 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran's appeal was most recently readjudicated in an August 2017 supplemental statement of the case. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and identified post-service medical records have been obtained and associated with the claims folder. The record also contains the Veteran's lay statements in support of his claims. The Veteran has not identified any available, outstanding records that are relevant to the claim being decided herein. The Veteran was also afforded VA examinations in January 2008 and May 2017 to evaluate the severity of his left middle finger and left wrist disabilities. The Board notes that, in examining joint disabilities, "[t]he 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." Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the January 2008 VA examination report did not include all the required range of motion findings. While the VA examination did not include all findings, in this case, a higher schedular evaluation for ankle limitation of motion is not available without ankylosis. Therefore, any deficiency in the range of motion findings in the VA examination report is not prejudicial to the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. 2. Increased Rating 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.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). 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 the other condition. 38 C.F.R. § 4.14 (2012); Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), 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, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2017). Left Wrist The Veteran's left wrist disability has been evaluated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5015-5210 (2017). 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 evaluation assigned. 38 C.F.R. § 4.27 (2017). In this case, arthritis, under Diagnostic Code 5010, is the service-connected disability, and limitation of motion of the wrist, under Diagnostic Code 5215, is a residual condition. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific major joints or minor joint groups involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Pursuant to Diagnostic Code 5215, a 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. This is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher schedular rating is only warranted when there is evidence of ankylosis (frozen joint). 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2017). The Veteran filed his claim for increased rating in August 2007. VA treatment records show that the Veteran complained of pain and decreased grip strength in his left wrist. None of these medical records show that the Veteran's left wrist disability is manifested by ankylosis of the joint. A January 2008 VA examination report shows that the Veteran complained of left wrist pain and weakness as well as symptoms numbness and tingling. He reported that he has difficulty making a closed fist and he has decreased grip strength when he uses tool in his left hand. He was able to perform activities of daily living and he denied experience flare-ups of increased pain. It was noted that the Veteran was right hand dominant. A physical examination of the left wrist revealed decreased grip strength, weakness, and tenderness on palpation of the wrist joint. There were positive signs of carpal tunnel syndrome. There was no evidence of atrophy or anklyosis in the left wrist. X-rays were negative for abnormalities. Range of motion testing reveled dorsiflexion to 40 degrees, palmar flexion to 30 degrees, radial deviation to 15 degrees, and ulnar deviation to 20 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. A May 2017 VA examination report the Veteran complained of left wrist pain and persistent decreased range of motion. He reported that he uses his left wrist "very little" and he is not able to put much pressure on his left wrist. He also reported flare-ups, during which he experienced increased pain after repetitive exertional activity. Range of motion testing revealed palmar flexion to 50 degrees, dorsiflexion to 50 degrees, ulnar deviation to 35 degrees, and radial deviation to 20 degrees. There was evidence of pain on examination, but the VA examiner found that it did not cause the Veteran functional loss in his left wrist. There was no additional limitation of motion after three repetitions. The examiner was unable to opine on additional limitation of function during flare-ups without resorting to speculation. Left wrist muscle strength was a four, out of five, indicating active movement against some resistance. A physical examination revealed tenderness at the radiocarpal joint line. There was no evidence of ankylosis. X-ray film showed evidence of degenerative arthritis. The examiner indicated that the Veteran's left wrist disability precluded him from heavy labor activities, such as carrying heavy loads or climbing ladders, but he was able to perform light duty tasks. Collectively, the evidence of record demonstrates that the Veteran's left wrist disability is currently manifested by degenerative arthritis that results in limitation of motion, pain, and decreased grip strength in the left wrist. As previously noted, the Veteran's service-connected left wrist disability has been assigned a 10 percent disability rating, which is the maximum rating based on limitation of motion in the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. In order for a higher rating to be warranted, the evidence of record must demonstrate, at a minimum, favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2017). A review of the record reveals no evidence of ankylosis of the left wrist. Thus, a rating in excess of 10 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. Moreover, as the Veteran is in receipt of the maximum schedular rating under the applicable diagnostic code for limitation of motion, VA regulations concerning functional loss are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). Accordingly, a higher rating based on additional functional loss is not warranted. The Board has considered all applicable diagnostic codes have been considered; however, the Veteran's left wrist disability could not receive a higher rating under any analogous codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see also 38 C.F.R. § 4.71a. The available evidence shows that the Veteran had generally the same level of symptoms throughout the period on appeal, and staged ratings are not appropriate. Hart, 21 Vet. App. at 509- 10. Left Middle Finger The Veteran's residuals of the left middle finger injury is presently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229, which compensates for limitation of motion of the index or long finger. Under the applicable diagnostic criteria, a 10 percent rating is assigned for the non-dominant hand when 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 10 percent rating is the maximum disability rating assigned under the Diagnostic Code for limitation of motion of the middle finger. 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2017). Other potentially applicable diagnostic criteria include a 10 percent rating assigned for either unfavorable or favorable ankylosis of the long finger. 38 C.F.R. § 4.71a, Diagnostic Code 5226 (2017). The note to Diagnostic Code 5226 directs the rating specialist to consider whether to evaluate the finger disability as amputation by analogy. Diagnostic Code 5154 provides for a 20 percent disability for amputation of the long finger with metacarpal resection (more than one-half the bone lost). The ratings for the long finger are the same whether the disability affects the dominant or non-dominant hand. 38 C.F.R. § 4.71a, Diagnostic Code 5154 (2017). The Veteran filed a claim for increased rating for residuals of left middle finger injury in August 2007. A review of the Veteran's VA treatment records shows he complained of pain and decreased grip strength in his left hand. None of the treatment records show evidence of anklyosis in the left middle finger or findings equivalent to amputation of the finger with metacarpal resection. A January 2008 VA examination noted that the Veteran has a history of a laceration injury to the left middle finger with flexor tendon injury, status post-surgical repair. He has developed post-surgical contracture in the middle finger that results in limitation of motion. He complained of difficulty with making a closed fist and decreased strength in his left hand. Range of motion was 20 to 90 degrees in the proximal interphalangeal (PIP) joint and 30 to 70 degrees in the dorsal interphalangeal (DIP) joint. Repetition was possible on all with no additional loss of degrees of motion. It was noted that the Veteran was able to touch his long finger to the tip of his thumb, but he was unable to touch the proximal crease. Specifically, the examiner stated that there was no additional limitation by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. No ankylosis was found. He had normal strength with pushing and pulling of the long finger. A May 2017 VA examination report shows that the Veteran reported that he is unable to fully straighten or fully flex his left middle finger. He further reported that his left middle finger disability limits his ability to handle items and tools in his left hand. Range of motion testing revealed limitation of motion in the PIP and DIP joints on flexion and extension. No evidence of pain was noted with use of the hand. No evidence of localized tenderness or pain on palpation was observed. There was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion. Repetitive testing was performed without any additional functional loss or range of motion. Grip strength was four out of five. No ankylosis was found in the left middle finger. The examiner found that the limitation of function in the Veteran's left middle finger was not so diminished that amputation with a prosthesis would equally serve him. Following a review of the claims file, the Board finds that the criteria for a rating in excess of 10 percent for the left middle finger have not been met. See 38 C.F.R. § 4.71a, Diagnostic Code 5229. The evidence of record demonstrates that the Veteran's disability is manifested by limitation of motion and pain but no ankylosis or functional limitation analogous to amputation at the metacarpal. The May 2017 VA examination report shows that the examiner specifically noted that the functional impairment was not to the extent that the remaining function would be equally well served by an amputation with prosthesis. Further, as the currently assigned rating is at the highest schedular evaluation available based upon limitation of motion, functional loss analysis is foreclosed. Johnston, 10 Vet. App. at 80. Thus, as the Veteran has been granted the maximum rating possible under Diagnostic Code 5229, which is the diagnostic code that is applicable to his disability, and as a higher rating is not available for limitation of motion under Diagnostic Code 5229. The Board has considered all applicable diagnostic codes have been considered; however, the Veteran's left middle finger disability could not receive a higher rating under any analogous codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see also 38 C.F.R. § 4.71a. The available evidence shows that the Veteran had generally the same level of symptoms throughout the period on appeal, and staged ratings are not appropriate. Hart, 21 Vet. App. at 509- 10. The Board notes that service connection was granted for a residual scar on the left middle finger to which noncompensable ratings have been assigned. See August 2017 rating decision. As the Veteran has not appeal the evaluation assigned to his left middle finger scar, that rating is not presently before the Board. ORDER Entitlement to an evaluation in excess of 10 percent for left wrist degenerative joint disease is denied. Entitlement to an evaluation in excess of 10 percent for residuals of left middle finger injury is denied. REMAND The Veteran seeks entitlement to service connection for a left arm disorder as secondary to his service-connected residual of left middle finger injury. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the case. In particular, the Board finds that another VA examination is needed to determine nature and etiology of the Veteran's claimed left arm disorder. The Veteran asserts that he has developed muscle cramps, pain, weakness, and muscle atrophy in his left arm as result of his service-connected disability. The Veteran currently contends that the Botox injection treatment he received for his residuals of left middle finger disability proximately caused or aggravated his left arm disorder. While VA examinations were obtained in January 2008 and May 2017, the Board finds that these medical opinions do not adequately address the contrary evidence contained in the Veteran's VA treatment records. Initially, the Board notes that the nature of the Veteran's claimed left arm disorder remains unclear. VA medical records show that his left arm symptoms have been diagnosed as carpal tunnel syndrome and/or myositis. In the May 2017 VA examination report, the VA examiner ruled out a diagnosis of carpal tunnel syndrome based on the findings from a 2012 MRI report as well as noting that the Veteran's subjective complaints were more consistent with myositis as opposed to carpal tunnel syndrome. However, the Veteran has submitted the report of a September 2017 VA EMG report that shows findings of carpal tunnel syndrome, but no evidence of myopathy. The Board also finds that the etiology of the Veteran's left arm disorder remains unclear. In this regard, the Board notes that the Veteran's VA treatment records indicate that the Veteran may have developed left carpal tunnel syndrome as result of his service-connected disability. A July 2009 VA treatment note shows that the treating VA physician though that the Veteran's history of left middle finger injury and surgical repair might have predisposed him to carpal tunnel syndrome. In a December 2009 VA treatment record, the treating VA physician stated it was unclear if the Veteran's finger injury caused him to use his hand differently and therein caused his carpal tunnel syndrome. In addition, November 2012, October 2014, and June 2017 VA treatment notes show that his treating VA physicians have associated the Veteran's left arm complaints with his history of Botox injections used to treat his left middle finger disability. Although the treating VA physician noted that the Veteran's complaints of left arm weakness preceded his Botox treatment, it was observed that he has developed more noticeable atrophy in his left arm since those injections. However, there is no opinion regarding the degree of aggravation over the baseline. The 2017 VA examiner failed to discuss these medical notations when finding that the Veteran's myositis was not secondary to his service-connected disability, but rather due to HIV and his history of drug use. The Board finds that a new VA examination is needed to determine the nature and etiology of the Veteran's left arm disorder, and an opinion on whether the diagnosed disorder involving the left arm is proximately caused or aggravated by his service-connected disability, to include history of Botox treatment. Accordingly, the case is REMANDED for the following action: 1. Update the claims folder with the Veteran's VA treatment records from appropriate VA medical facilities. 2. Schedule the Veteran for a VA examination with the appropriate specialist to determine the nature and etiology of his claimed left arm disorder. The claims file, and any pertinent records contained in any electronic claims folder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and physical examination, the examiner is asked to render an opinion as to: a. Does the Veteran have a current musculoskeletal disorder involving his left hand? b. Does the Veteran have a current neurologic disorder, to include carpal tunnel syndrome) involving his left hand? c. For each diagnosed disorder involving the left arm, is it at least as likely as not that proximately caused or aggravated by a service-connected disability. In doing so, the examiner is asked to discuss the medical notations contained in the VA treatment records that suggest an association between the Veteran's left arm symptomatology and his service-connected disability, to include treatment with Botox. See VA treatment records dated in July 2009, December 2009, November 2012, October 2014, and June 2017. If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of left arm disorder is attributable to the service-connected disability. An explanation of the underlying reasons for any opinions offered must be included. If the examiner is unable to provide an opinion any of the questions, he or she must state so and explain why an opinion cannot be provided. 3. Once the above actions have been completed, the RO should review the entire evidentiary record and readjudicate the issue on appeal. If the benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs