Citation Nr: 18146919 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 16-43 846 DATE: November 2, 2018 ORDER Entitlement to a compensable rating for service-connected post traumatic arthritis changes to the right 4th and 5th proximal interphalangeal (PIP) joint is denied. FINDING OF FACT The Veteran’s service-connected post traumatic arthritis changes to the right 4th and 5th PIP joint have not manifested by the functional equivalent of amputation, or interference with the other digits or the overall function of the hand. CONCLUSION OF LAW The criteria for entitlement to an increased rating for service-connected post traumatic arthritis changes to the right 4th and 5th PIP joint have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5156, 5227. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps from August 1970 to September 2000 and was a Veteran of the Vietnam Era and the Gulf War Era. This matter is before the Board of Veterans Appeal (Board) through an appeal of the July 2015 rating decision by the Regional Office (RO). Entitlement to a compensable rating for service-connected post traumatic arthritis changes to the right 4th and 5th PIP joint The Veteran was awarded service connection for his post traumatic arthritis changes to right 4th and 5th interphalangeal joint (little finger injury) in September 2000. This was based on a strain injury sustained in service during physical training. See September 2000 Rating Decision. The Veteran asserts that his little finger injury has become more severe and affects his daily living. See Statement in Support of Claim dated February 2004. He contends that his injury deserves a higher rating because of the ankylosis of the finger joint and because he cannot bend his litter finger due to the pain. See Notice of Disagreement dated November 2015. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s service-connected post traumatic arthritis changes to the right 4th and 5th interphalangeal joint is rated under Diagnostic Code 5227. Under Diagnostic Code 5227, ankylosis of the ring or little finger, a maximum noncompensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger regardless whether the finger is on the major (dominant) or minor (non-dominant) hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227. A note accompanying Diagnostic Code 5227 provides that the Board should also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227, Note. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), 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. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also 38 C.F.R. § 4.45 (f) (for the purpose of rating a disability from arthritis multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered groups of minor joints that are ratable on a parity with major joints). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. These provisions are not for consideration; however, where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The pertinent evidence includes VA examinations conducted in May 2015 and June 2016. During the most recent examination, the Veteran reported symptoms of pain when curling fingers, transient swelling in his 5th digit, difficulty tying his shoes, difficulty gripping hand tools or small objects, and only being able to write for short periods of time. The Veteran also reported pain, weakness, stiffness, swelling, fatigability, and lack of endurance. See VA Examination dated June 2016. The Veteran also reported having flare-ups which would be “severe in nature.” See VA Examination dated June 2016. The VA examiner noted objective evidence of “generalized mild tenderness along the MCP joints to all fingers, mild tenderness along the 5th, 4th fingers; related to diagnosis above.” VA Examination dated June 2016. The VA examiner noted that the Veteran experienced functional loss due to pain after repetitive use testing. However, the VA examiner ultimately concluded that s/he was unable to opine, without resorting to speculation, as to whether the Veteran’s functional ability was limited during flare-ups because the examination was conducted in a clinical environment, not during a flare-up, and not in the Veteran’s typical work environment where he reports that his symptoms are exacerbated. See VA Examination dated June 2016. Furthermore, the VA examiner noted that the Veteran’s ankylosis of the right little finger did not result in a limitation of motion of the other digits or interfere with the overall function of his right hand. See VA Examination dated June 2016. The VA examiner also noted a 5-degree difference in the Veteran’s flexion at the right fifth PIP joint from the May 2015 VA examination. In June 2016, the Veteran’s flexion was 45-degrees and the year prior it was 50-degrees. See VA Examination dated June 2016; May 2015 VA Examination. The VA examiner also noted that the Veteran would not be equally served by an amputation of the little finger with a prosthetic. See VA Examination dated June 2016. The May 2015 VA examination showed a decreased flexion of the fingers which decreased the Veteran’s ability to close his hand into a tight fist. The examiner also noted that the range of motion was painful, but that there was no additional functional loss after repetitive use testing. See VA Examination dated May 2015. Similarly to the June 2016 examination, the May 2015 examiner concluded that s/he was unable to opine, without resorting to speculation, whether the Veteran’s functional ability was limited during flare-ups because the examination was conducted in a clinical environment, rather than in the Veteran’s work environment, and not during a flare-up. See VA Examination dated May 2015. Furthermore, the VA examiner noted that the Veteran’s ankylosis of the right little finger did not result in a limitation of motion of the other digits or interfere with the overall function of his right hand. See VA Examination dated May 2015. The Board finds that all of the VA examinations have great probative value because they are all detailed in their analysis and rationale with references to the Veteran’s lay statements, objective findings, and treatment notes. In particular, the Board finds that the June 2016 VA examination has significant probative value because it is the most up-to-date examination of the Veteran’s little finger injury and it takes into account the Veteran’s previous medical findings and VA examinations. The highest evaluation available for the Veteran’s disability is a noncompensable rating under the Diagnostic Code that it is currently assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Therefore, there is no need for an additional discussion of this rating criteria because the Veteran has received the highest rating possible under Diagnostic Code 5227. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As stated above, the Note following Diagnostic Code 5227 instructs the Board to consider whether evaluation as amputation is warranted. However, a rating for amputation of the little finger is not warranted. To this end, the evidence does not show functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5156. Further, neither the Veteran nor the evidence indicates that the left little finger has been amputated. Therefore, a rating based on amputation is not warranted. The Board has also considered entitlement to an increased rating under other potentially applicable criteria, but there are none that are appropriate to the Veteran’s disability. The only finger for which service connected has been established is the right little finger. Therefore, other rating criteria that allow for increased ratings based on ankylosis of limitation of motion of multiple digits cannot be utilized. See 38 C.F.R. § 4.71a, Codes 5216-5226; 5228-5229. Entitlement to a 10 percent rating under the criteria for degenerative arthritis has been considered, but the Veteran is service connected for only a single minor joint and not an entire minor joint group, and therefore, a 10-percent rating cannot be assigned for degenerative arthritis. 38 C.F.R. § 4.71a, Code 5003. The Board concludes that the noncompensable rating assigned for the Veteran's service-connected little finger injury is the highest rating available, and entitlement to a higher rating is not possible. (Continued on next page)  Therefore, the Board finds that the criteria for an increased rating for the Veteran’s service-connected post traumatic arthritis changes to the right 4th and 5th interphalangeal joint has not been met and must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Bognar, Associate Counsel