Citation Nr: 1757793 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-16 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable evaluation for flexion deformity of long (or middle) finger and residual of injury to left hand. 2. Entitlement to a compensable evaluation for flexion deformity of index finger and residual of injury to left hand. 3. Entitlement to a compensable evaluation for flexion deformity of ring finger and residual of injury to left hand. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from December 1995 to November 1999 and October 2001 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). When this case was most recently before the Board in February 2017, it was remanded for further development. It is now before the Board for further appellate action. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran raised the issue of TDIU due to his finger disabilities in his 2010 vocational rehabilitation application. Therefore, the issue of entitlement to TDIU is before the Board. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 23, 2015, the evidence does not show radiological evidence of arthritis of his left fingers or limitation of motion. 2. Beginning January 23, 2015, the evidence shows arthritis evidence in the left fingers but without limitation of motion. CONCLUSIONS OF LAW 1. Prior to January 23, 2015, the criteria for a compensable disability rating for the index, middle and ring finger disabilities were not met or approximated. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003. 2. From January 23, 2015, the criteria for a 10 percent rating, but no higher, for arthritis in several minor digits of the left hand have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify VA's duty to notify was satisfied by a letter dated in January 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has been afforded examinations and records have been obtained. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. II. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating 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 a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The Veteran's left index and long finger disabilities have been rated under 38 C.F.R. §§ 4.71a, DC 5229. Under DC 5229, limitation of motion of the index or long finger is assigned a 10 percent rating with a gap of one inch (2.5 centimeters) 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 noncompensable rating is assigned with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229 (2017). The Veteran's ring finger is evaluated under DC 5030. Under DC 5030, limitation of motion of the ring or little finger is assigned a noncompensable rating. 38 C.F.R. § 4.71a (2017). The Veteran does not have ankylosis or amputation of his fingers. Therefore, DCs 5126-5156 and DCs 5216-5227 are not applicable in this case. 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 joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2017). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45 (2017). In the absence of limitation of motion, a 10 percent rating may be assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating may be assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Analysis The Veteran injured his left hand and fingers at least twice during his military service. The Veteran filed a claim for left hand arthritis in December 2009. The RO granted service connection in September 2010 and described the issues as flexion deformity of the long, index and ring fingers as well as residuals of left hand injury. In June 2010, the Veteran was afforded a VA examination to determine if his current left hand disability was related to his military service. During the examination, the Veteran described that his fingers two through four were involved in the accident in service. He reported intermittent pain in fingers two through four and on the dorsum of the hand. Upon examination, the left hand second digit had proximal interphalangeal (PIP) joint extension to 0 with flexion to 45. Distal interphalangeal (DIP) joints extension was from 0 to 45. The left hand middle finger had normal PIP range of motion with DIP range of motion from 0 to 10 degrees. The ring finger of the left hand had normal PIP ranges of motion and DIP is fixed at 5 degrees. There was no evidence of osteoarthritis on the x-ray taken that day or post-traumatic findings. The examiner noted flexion deformity of the fingers two, three, and four of the left hand without obvious degenerative changes. The Veteran reported intermittent pain in index finger and dorsum of his hand. The January 2015 VA examination report noted that the Veteran had degenerative arthritis of metacarpophalangeal joint (MCP), PIP and DIP on the left. He also had residuals of tendon sheath injury on the left. Pain was intermittent in nature with occasional flare-ups with overuse. Pain was confined to the base of the 3rd and 4th fingers. The Veteran's dominant hand is the right hand. Flare-ups impact him dramatically as he has trouble holding drill and inserting screw. Upon examination, range of motion was all normal. There was no gap between the pad of the thumb and fingers. The examiner noted that the x-ray study noted degenerative or traumatic arthritis on the left and that it was documented in multiple joints of the same left hand. The examiner further opined that the traumatic arthritis was likely post traumatic degenerative joint disease as none of the non-injured fingers had arthritic changes. In the April 2017 examination report, the physician assistant provided a 2015 radiology report of the left hand. The radiology report noted left fifth proximal phalanx suggesting old injury. There was mild left fifth PIP joint degenerative changes with joint space narrowing and minimal osteophytosis. There was also mild left fourth DIP joint degenerative changes. The radiologist concluded that there was evidenced of old left fifth proximal phalangeal injury and mild left fifth PIP and left fourth DIP and right third DIP joint degenerative changes. The radiologist noted no changes in the April 2017 x-ray report. The examination report also noted normal range of motion for the left and right hand. Weight-bearing testing was also performed. There was no gap between the pad of the thumb and fingers on either hand. There was no gap between the fingers and proximal transverse crease of the hand on maximal finger flexion. There was no evidence of pain with use of the hand. There was no objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue. He could bear weight on fingertips without pain or instability. Upon review of the evidence of record, the Board finds that a disability rating of 10 percent, but no higher, is warranted for the Veteran's finger disabilities from January 23, 2015. Prior to January 23, 2015, a compensable evaluation is not warranted. Prior to January 23, 2015, the x-ray evidence of arthritis of the left hand is lacking. During service, the February 1997 x-ray of the middle finger was within normal limits. The June 2010 examination report noted no evidence of osteoarthritis on x-ray or post-traumatic findings. Limitation of motion testing also did not show flexion to 30 degrees or more. There was no anatomic defect or opposition gap defect noted in the June 2010 examination. Beginning January 23, 2015, the evidence shows a compensable evaluation is warranted. The January 2015 and April 2017 examination reports show normal range of motion and no gap between the paid of the thumb and the fingers. Therefore, evaluating under Diagnostic Code 5229 would not result in a compensable evaluation. Significantly, the January 2015 examiner noted x-ray evidence of arthritis in multiple joints of the left hand. The examiner further opined that the arthritis was likely post traumatic degenerative joint disease as none of the non-injured fingers had arthritic changes. As there is no limitation of motion of the joints of the left hand, the Veteran's left hand arthritis is rated under Diagnostic Code 5003. X-ray evidence of 2 or more minor joints groups warrants a 10 percent evaluation. As there are no incapacitating episodes a higher 20 percent evaluation is not warranted. 38 C.F.R. §4.71a, Diagnostic Code 5003. The Board acknowledges that the April 2017 VA examiner provided a 2015 radiology report. It is unclear what month this x-ray reports was completed. It noted old fracture of the left fifth proximal phalangeal injury and mild left fifth PIP and left fourth DIP. The Board acknowledges that this evidence suggests that he had injury of a fifth finger which is not service-connected and no evidence of more than one joint with arthritis (only arthritis to the left fourth DIP). This evidence is in contrast with the January 2015 examination report which notes arthritis in multiple joints of the left hand and the examiner's specific statement that arthritis was likely post traumatic degenerative joint disease as none of the non-injured fingers had arthritic changes. The Board finds that the evidence is at least in equipoise. Therefore, resolving all doubt in the Veteran's favor, the Board finds that a 10 percent evaluation is warranted under DC 5003 for his combined disability of his left hand, which includes index, middle and ring finger disabilities. The Board finds that this 10 percent evaluation also contemplates the residuals of tendon sheath injury on the left which is also noted in the January 2015 examination report. In sum, the Board concludes the preponderance of the evidence is against the assignment of a a compensable evaluation for the index, middle and ring finger disabilities prior to January 23, 2015; conversely, the evidence supports the assigmentment of a disability rating of 10 percent, but no higher, from January 23, 2015 for the Veteran's service-connected index, middle and ring finger disabilities. ORDER Prior to January 23, 2015, a compensable evaluation is not warranted for the index, middle and ring finger disabilities. Beginning January 23, 2015, entitlement to a 10 percent disability rating for index, middle and ring disabilities is granted. REMAND The record indicates that the Veteran applied for vocational rehabilitation in 2010. In the application, he specifically reported that depression and flexion deformity to the long, index and ring fingers on the left hand reduced his ability to get or hold a satisfactory job. As indicated above, the Board finds that the Veteran has raised the issue of TDIU due to the issues of the finger disabilities that are on appeal. The Veteran has not submitted application for TDIU and the Veteran's work history has not been obtained. For these reasons, the Board finds that a remand is needed prior to adjudication of this claim. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2014). ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs