Citation Nr: 1803884 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-06 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable rating for residuals of a right fifth metacarpal fracture. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Olufunmilola A. Akintan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1992 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2017. A transcript of that hearing is associated with the claims file. FINDING OF FACT Residuals of a right fifth metacarpal fracture, status post open reduction-internal fixation (ORIF), are manifested by limitation of motion, 2 painful scars, and mild right ulnar nerve neuropathy. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a right fifth metacarpal fracture with limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5230 (2017). 2. The criteria for a separate rating of 10 percent, and no higher, for 2 painful scars, residuals of right fifth metacarpal fracture, status post ORIF, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2017). 3. The criteria for a separate rating of 10 percent, and no higher, for mild right ulnar neuropathy, residuals of right fifth metacarpal fracture, status post ORIF, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8516 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). The primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. The Veteran contends that a compensable rating is warranted for his service-connected right fifth metacarpal fracture. In a June 2016 VA Form 646, Statement of Accredited Representative, the Veteran's representative restated the Veteran's contention that his condition merits a compensable evaluation due to chronic pain, swelling, loss of feeling/sensation of upper right hand area, numbness of the right pinky and ring fingers, and popping of the ring finger when grasping. During his February 2017 hearing before the Board, the Veteran testified that he is right-hand dominant. He reported that his finger caused pain and that it was weak, impacting the use of his entire hand. He explained that the pain radiated from his pinky and ring finger to his elbow. The Veteran noted that the finger disability caused difficulty gripping his right hand for activities such as holding things or throwing a ball. The Veteran fractured the finger in April 1994. In October 1995 he reinjured the finger and X-rays showed malunion of the shaft. In January 1996 he underwent an ORIF with wrist bone graft. The Veteran's right fifth metacarpal fracture is currently evaluated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Diagnostic Code 5230 provides a maximum noncompensable percent rating for any limitation of motion of the ring or little finger, whether on the major (dominant) or minor (non-dominant) hand. See 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2017). Based on the evidence of record, the symptoms of the Veteran's right fifth metacarpal fracture disability do not warrant a compensable disability rating under Diagnostic Code 5230. In this regard, a noncompensable disability rating is warranted for any limitation of motion of the ring or little finger. Accordingly, a noncompensable rating is the maximum rating allowed for limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Other potentially applicable diagnostic codes have also been considered. Schafrath, 1 Vet. App. at 595. Diagnostic Code 5003 provides for assignment of a 10 percent disability rating when there is X-ray evidence of degenerative arthritis and the limitation of motion of the specific joint or joints involved is noncompensable. However, the evidence of record does not show that the Veteran has X-rays documented arthritis in his right little finger. Further, this diagnostic code applies only to major joints or groups of major joints. Accordingly, a compensable rating is not warranted under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In addition, a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities, but only if they are rated under diagnostic codes containing a 10 percent rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). Diagnostic Code 5230 does not contain a 10 percent rating. Disability evaluations are also available for ankylosis of the finger joints and injuries to the muscles arising from the internal and external condyle of the humerus that affect extension and flexion of the fingers. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5227. The evidence of record fails to demonstrate ankylosis of any finger joint. Regardless of the precise basis of the RO's rating, the Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The analysis turns to whether separate ratings may be assigned for distinct disabilities resulting from the service-connected right fifth metacarpal fracture disability. The Board finds that separate 10 percent ratings are warranted under Diagnostic Codes 7804 and 8516 for 2 painful scars and mild and incomplete paralysis of the ulnar nerve. The Veteran underwent a VA scar examination in August 2017. The August 2017 VA examination report showed that the ORIF resulted in two painful scars. The scars are stable with no frequent loss of covering of skin. The examiner noted that the scars did not cause limitation of function. Accordingly, a 10 percent rating for 2 painful scars, but no higher, is warranted. An August 2017 VA examination report (hand and finger condition) diagnosed an injury of the digital nerve of the right little finger. Physical examination showed abnormal range of motion of the ring and little fingers of the right hand. The examiner noted that the Veteran's right fifth metacarpal fracture resulted in pain, swelling, reduction in muscle strength, and functional impairment. There was no evidence of muscle atrophy or right hand ankylosis. In a September 2017 VA peripheral nerves examination report, the examiner noted mild pain, numbness and paresthesias in the Veteran's right upper extremity. Muscle strength testing showed active movement against some resistance on a scale of 4/5 for the Veteran's grip. The examiner noted a decreased sensation in the Veteran's right hand/fingers. The examiner also noted that the Veteran's ulnar nerve revealed a mild paralysis. Diagnostic testing showed an abnormal right upper extremity. The examiner described it as ulnar neuropathy. The examiner also noted hyperesthesia in the right ulnar nerve distribution. The Board concludes that another separate 10 percent disability rating is warranted for the Veteran's mild right ulnar neuropathy. Nonetheless, the medical evidence of record reflects that two painful scars are associated with the Veteran's service-connected right fifth metacarpal fracture. In essence, based on these painful scars noted in the August 2017 VA examination, the Board finds that the rating of 10 percent is warranted for residuals of a right fifth metacarpal fracture under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Furthermore, the Board notes that the August 2017 VA examination report showed the Veteran has a diagnosis of injury of the digital nerve of the right little finger which has resulted in painful and abnormal range of motion of the ring and little fingers of the right hand. The Board notes that the Veteran's right fifth metacarpal fracture resulted in swelling, reduction in muscle strength, and functional impairment. The Board notes that a September 2017 VA examination report showed that the Veteran has mild pain, numbness and paresthesias in his right upper extremity. The Board also notes that the Veteran has reported trouble with his ability to grip but a 4/5 is still mild. Further, the Board notes that the Veteran's ulnar nerve showed a mild paralysis and an additional sensory finding revealed hyperesthesia in the right ulnar nerve distribution, up to the Veteran's wrist level. Accordingly, the Board finds that a separate rating of 10 percent is warranted for residuals of a right fifth metacarpal fracture under 38 C.F.R. § 4.124a Diagnostic Code 8516 (2017). In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected disability and that a higher rating is warranted. See, e.g., August 2010 Substantive Appeal. The Board agrees that two higher ratings are warranted and has assigned the higher ratings under the pertinent DCs herein. To the extent that he is arguing that his ratings should be even higher, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005). However, although the Board may consider the Veteran's subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the Board has determined that the findings and opinions provided by the VA examiners of record should be afforded the greater probative weight. Id. ORDER Entitlement to a compensable rating for limitation of motion due to service-connected residual of a right fifth metacarpal fracture is denied. Entitlement to a separate 10 percent disability rating for 2 scars related to service-connected residuals of a right fifth metacarpal fracture, status post ORIF, is granted, subject to the rules governing the payment of monetary benefits. Entitlement to a separate 10 percent disability rating for mild right ulnar neuropathy due to service-connected right fifth metacarpal fracture, status post ORIF, is granted, subject to the rules governing the payment of monetary benefits. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs