Citation Nr: 18153113 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-53 315A DATE: November 27, 2018 ORDER An increased 10 percent rating for right-hand strain is granted pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5307. VETERAN’S CONTENTIONS The Veteran contends that the zero percent rating currently assigned for her right-hand disability is inadequate as it does not account for the popping, pain, and weakness she experiences with use of the right-hand. She describes experiencing pain with prolonged carrying of heavy objects, difficulty with overhead lifting, pain when engaging in sporting activities, and having to take frequent breaks when using a computer due to pain. She states that occupational therapy has not been helpful in resolving these complaints. FINDING OF FACT The Veteran’s right-hand strain is manifested by pain and weakness with motion. She is able to close the hand, and to oppose the thumb to all fingertips of the right hand. There is decreased muscle tone of the right hand/wrist dorsiflexors (extensor carpi ulnaris) but grossly normal strength. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, for right-hand strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Code 5228; 4.73, Diagnostic Codes 5307-5309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to October 2006 and from June 2007 to June 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Entitlement to a compensable rating for right-hand strain Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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 (2011). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful . . . joints due to healed injury as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59 (2017). The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The diagnostic codes pertaining to impairment of the hand and fingers apply different disability ratings based upon whether the major or minor arm is affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5213 through 5230. The Veteran is right-hand dominant, therefore ratings for the dominant hand will be considered. The Veteran’s right-hand strain is currently rated as noncompensably disabling under Diagnostic Code 5228, which pertains to limitation of motion of the thumb. Notably, the injury the Veteran originally sustained in service was muscular in origin; the individual fingers were not affected. Current clinical findings show decreased muscle tone but no limitation of motion or other abnormalities of the individual fingers. As such, in evaluating the Veteran’s entitlement to an increased rating, the Board will limit its analysis to higher ratings under the currently assigned Diagnostic Code 5228 and Diagnostic Codes 5307-5309, which pertain to muscle injuries affecting hand function. The Board turns first to Diagnostic Codes 5307-5309, as the Board finds those diagnostic codes more appropriate for evaluating the disability, given the nature of the original injury and the current residuals of that injury. Diagnostic Code 5307 provides for a 0 percent rating for a moderate impairment of the muscles involved in flexion of the wrist and fingers. A 10 percent rating is warranted for moderate impairment; a 20 percent rating is warranted for moderately severe impairment, and a maximum 40 percent rating is warranted for severe impairment. 38 C.F.R. § 4.73, DC 5307. Diagnostic Code 5308 provides for a 0 percent rating for a slight impairment of the muscles involved in extension of the wrist, fingers, and thumb, and abduction of the thumb. A 10 percent rating is warranted for moderate impairment; a 20 percent rating is warranted for moderately severe impairment; and a maximum 30 percent rating is warranted for severe impairment. 38 C.F.R. § 4.73, DC 5308. Diagnostic Code 5309 pertains to impairment of the muscles involved in grasping and delicate manipulative movements of the fingers. The Note associated with this diagnostic code instructs that the hand is so compact a structure that isolated muscle injuries are rare and that a rating should be based on limitation of motion, with a minimum 10 percent rating. Diagnostic Code 5309 does not otherwise provide for individual disability ratings. On VA examination in January 2015, the Veteran complained of pain and weakness in her right hand, made worse by prolonged lifting of heavy objects, and overhead lifting, especially with reaching and axial load. She denied experiencing flare ups of her right-hand disability. On physical examination, she was able to close the hand, and to oppose the thumb to all fingertips of the right hand. There was no objective evidence of localized tenderness or pain on palpation. Additionally, there was no evidence of pain with use of the hand. She was able to perform repetitive use testing with at least three repetitions, without additional functional loss or range of motion after three repetitions. There was decreased muscle tone of the right hand/wrist dorsiflexors (extensor carpi ulnaris) which affected the dorsum of the right-hand, the initial site of injury. However, there was no evidence of muscle atrophy, and muscle strength testing was grossly normal, measured as 5/5. Clinical records dated throughout the appeal period show that the Veteran underwent occupational therapy for her right-hand disability. The associated records show that she reported experiencing pain with carrying objects in her right hand, pain with participation in sporting activities, and having to take frequent breaks while using a computer due to pain. They do not show evidence of muscle atrophy or decreased strength, or limitation of motion. The clinical findings discussed above warrant an increased 10 percent rating under Diagnostic Code 5307, based upon objective evidence of decreased muscle tone. A rating higher than 10 percent is not warranted, as there is no evidence of muscle atrophy, and muscle strength, including grip strength, has been grossly normal throughout the appeal period. As there is no evidence of muscle atrophy or weakened strength, the disability cannot be found to be moderately severe in nature. For the same reasons, a rating higher than 10 percent is not warranted under Diagnostic Code 5308. As Diagnostic Code 5309 provides for a rating higher than 10 percent only on the basis of limitation of motion, the Board turns to the final remaining applicable diagnostic code, 5228. DC 5228 applies to limitation of motion of the thumb and assigns a 10 percent rating for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. There is no differentiation between the ratings assigned for the major and minor hands under DC 5228. Notwithstanding that the VA examination and other physical examinations discussed above failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s right-hand is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion. (Continued on the next page)   As noted above, range of motion testing conducted on VA examination in January 2015 noted no gap between the thumb and the fingers with the thumb attempting to oppose the fingers. VA treatment records also do not document reduced range of motion, nor does the Veteran contend such. However, when considering the Veteran’s credible reports of right-hand pain with motion, throughout the appeal period, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5228 pursuant to 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint). A rating higher than 10 percent is not warranted, as there is no objective evidence of limitation of motion. In light of the above evidence, and affording the Veteran the benefit of the doubt, a rating of 10 percent, and no higher, is granted for the Veteran’s service-connected right-hand strain pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5307. See Read v. Shinseki, 651 F.3d. 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a “disability” is not severed simply because the situs of a disability--or the Diagnostic Code associated with it--is corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel