Citation Nr: 18154844 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-32 908 DATE: November 30, 2018 ORDER An initial rating in excess of 10 percent for the right wrist is denied. An initial rating of 10 percent, but no higher, for the right index finger is granted for the entire period on appeal. An initial rating of 10 percent, but no higher, for the right long finger is granted for the entire period on appeal. An initial compensable rating for the right ring finger is denied. An initial compensable rating for the right little finger is denied. A separate rating of 10 percent, but no higher, for decreased grip strength of the right hand is granted. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding ankylosis of the right wrist. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran had painful motion and/or a gap of one inch (2.5 cm) or more between the right index fingertip and the proximal transverse crease of the palm during the entire period on appeal. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran had painful motion and/or a gap of one inch (2.5 cm) or more between the right long fingertip and the proximal transverse crease of the palm during the entire period on appeal. 4. The Veteran is in receipt of the maximum schedular rating for limitation of motion of the right ring finger. 5. The Veteran is in receipt of the maximum schedular rating for limitation of motion of the right little finger. 6. The competent and probative evidence is at least in equipoise as to whether decreased grip strength results in moderate impairment of flexion of the right wrist and fingers. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for the right wrist have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5215. 2. The criteria for entitlement to an initial rating of 10 percent, but no higher, for the right index finger have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DCs 5003, 5010, 5229. 3. The criteria for entitlement to an initial rating of 10 percent, but no higher, for the right long finger have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DCs 5003, 5010, 5229. 4. The criteria for entitlement to an initial compensable rating for the right ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DCs 5003, 5010, 5030. 5. The criteria for entitlement to an initial compensable rating for the right little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DCs 5003, 5010, 5030. 6. The criteria for entitlement to a separate rating of 10 percent, but no higher, for decreased grip strength of the right hand have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.73, DC 5307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to October 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). REFERRED In February 2017, VA received the Veteran’s application for compensation for right hand pain and loss of mobility. 02/21/2017, FDC. In May 2017, VA notified the Veteran that his claim could not be processed because he has a pending appeal for the claim of service connection for the hand. 05/15/2017, Notification. However, an August 2013 deferred rating decision acknowledged that the Veteran reported right hand vein/thrombosis pain in a February 2013 notice of disagreement (NOD), and directed that the Veteran be given notice that he is not service-connected for right hand vein/thrombosis pain and that he should submit a claim if he seeks service connection for that condition. 08/07/2013, Deferred Rating Decision. Accordingly, the Board finds that the issue of entitlement to service connection for right hand vein/thrombosis pain, also claimed as right palm pain, was raised and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 38 C.F.R. § 19.9(b). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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 disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (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, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59; see also Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “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, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial rating in excess of 10 percent for the right wrist. The Veteran contends that he is entitled to an initial rating in excess of 10 percent for the right wrist, evaluated under Diagnostic Code 5215. Diagnostic Code 5215 addresses wrist joint motion and allows for a single 10 percent rating if dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a, DC 5215. The Veteran has already been awarded a 10 percent rating under this diagnostic code. This rating compensates for any and all limitations of motion in the wrist including from pain and other symptoms that affect function. As the maximum scheduler evaluation is in effect, no additional schedular discussion is necessary and discussion of 38 C.F.R. §§ 4.40 and 4.45 and the DeLuca and Mitchell factors is moot. Johnston v. Brown, 10 Vet. App. 80, 85 (1995). Diagnostic Code 5214 allows for higher ratings for wrist limitation where ankylosis is shown. VA examinations in August 2011 and May 2018 indicate that ankylosis of the right wrist is not present. 04/29/2012, C&P Exam; 05/11/2018, C&P Exam. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding ankylosis of the right wrist. As such, Diagnostic Code 5214 is not applicable and the Veteran cannot receive a rating in excess of 10 percent for right wrist limitation of motion. See 38 C.F.R. § 4.71a. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher and/or additional evaluations for his right wrist disability based on the evidence. See 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. 2. Entitlement to an initial compensable rating for the right index finger prior to May 1, 2018. 3. Entitlement to an initial compensable rating for the right long finger prior to May 1, 2018. 4. Entitlement to an initial compensable rating in excess of 10 percent for the right index and long fingers as of May 1, 2018. 5. Entitlement to an initial compensable rating for the right ring finger. 6. Entitlement to an initial compensable rating for the right little finger. 7. Entitlement to a separate rating for decreased grip strength of the right hand. The Veteran’s right index, long, ring, and little fingers were all initially assigned separate noncompensable ratings. An August 2018 rating decision assigned a combined 10 percent rating for the right index and long fingers for painful motion of the index and long finders under § 4.59. Diagnostic Code 5010, for traumatic arthritis, directs the evaluator to rate the disability as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, DC 5010. Diagnostic Code 5003 provides that degenerative arthritis 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, DC 5003. Under Diagnostic Code 5229, limitation of motion of the index or long finger warrants a maximum 10 percent evaluation 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. 38 C.F.R. § 4.71a, DC 5229. Diagnostic Code 5230 provides for a maximum, noncompensable evaluation for limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that initial ratings of 10 percent are warranted for the index and long fingers for the entire periods on appeal, but that initial compensable ratings are not warranted for the ring and little fingers. An August 2011 VA examination reflects the Veteran’s report of increased difficulty in opening and closing his hands. The examiner indicated limitation of motion or evidence of painful motion of the right little finger, and a gap of less than one inch (2.5 cm) between the fingertips of the right index, long, ring, and little fingers and the proximal transverse crease of the palm. There was no limitation of extension or evidence of painful motion for the right index or long finger in flexion or extension, and no additional limitation of motion after three repetitions. Functional impairment was noted as less movement, weakened movement, and incoordination of the right little finger, as well as deformity of the right ring and index fingers. The examiner also noted Dupytren’s contracture of the right ring finger and arthritis of the right hand. The Veteran had no ankylosis and normal grip strength (5/5). The Veteran reported flare-ups resulting in pain and limitation of motion. The examiner opined that the Veteran’s finger conditions do not impact his ability to work. 04/29/2012, C&P Exam. A September 2013 VA treatment note reflects the Veteran’s report of difficulty with fine motor tasks requiring him to fully extend his fingers or to grip fine objects firmly. 01/30/2017, CAPRI. In May 2018, a VA examiner measured normal range of motion of the right fingers, but gaps of four and three centimeters between the index and long fingers, respectively, and proximal transverse crease of the hand on maximal finger flexion. The examiner found no objective evidence of pain with use of the hand. There was no ankylosis and no additional loss of motion after three repetitions. The Veteran denied flare-ups, but reported difficulty with grip strength, which the examiner noted may impact his ability to perform any type of occupational task that requires fine manipulation, twisting, turning, and/or gripping with the hands; however, the examiner found normal grip strength (5/5). 05/11/2018, C&P Exam. Based on the Veteran’s reports of painful motion and the May 2018 VA examiner’s findings of gaps in excess of 2.5 centimeters between the index and long fingers and proximal transverse crease of the hand on maximal finger flexion, the Board finds that the competent and probative evidence is at least in equipoise as to whether separate 10 percent ratings are warranted for the index and long fingers for the entire periods on appeal, which is the maximum schedular rating for limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Veteran is already in receipt of the maximum, noncompensable ratings for limitation of motion of the ring and little fingers. See 38 C.F.R. § 4.71a, DC 5230. The Board finds that a separate or higher rating is not warranted, as the weight of the competent and probative evidence is against finding ankylosis of any of the digits of the right hand. See 38 C.F.R. § 4.71a; see also 04/29/2012, C&P Exam; 05/11/2018, C&P Exam. The Board further finds that a higher rating is not warranted by analogy to amputation at the metacarpal or at the PIP joint, as the weight of the competent and probative evidence is against finding functional impairment of any digit 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, DC 5155. The Veteran contends that an extraschedular rating is warranted due to decreased grip strength of the right hand. Flexion of the wrist and fingers, when rated as a muscle injury under 38 C.F.R. § 4.73, Diagnostic Code 5307 (muscle group VII), is rated at zero percent for a slight disability and 10 percent for moderate disability. Moderately severe disability warrants a 30 percent rating for the dominant extremity and a 20 percent rating for the nondominant extremity. Finally, the maximum 40 percent is assigned for severe disability of the dominant extremity, and a 30 percent rating is assigned for severe disability of the nondominant extremity. 38 C.F.R. § 4.73, DC 5307. The evidence demonstrates that the Veteran’s right hand is his dominant extremity. 05/11/2018, C&P Exam. As previously noted, the Veteran reported difficulty gripping objects and tasks requiring fine motor skills. Accordingly, the Board finds that a separate 10 percent rating is warranted under Diagnostic Code 5307, as the competent and probative evidence is at least in equipoise as to whether decreased grip strength results in moderate impairment of flexion of the right wrist and fingers. A higher rating is not warranted, as VA examiners in August 2011 and May 2018 both found normal grip strength (5/5), which weighs against finding moderately severe impairment. See 38 C.F.R. § 4.73, DC 5307. The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Director, Compensation Service, to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence and contentions in the instant appeal do not establish such an exceptional disability picture as to render the schedular criteria inadequate. As discussed above, the Board has assigned a 10 percent rating herein for decreased grip strength under Diagnostic Code 5307. The Board finds that the Veteran’s decreased grip strength and difficulty with fine motor tasks are contemplated by the 10 percent rating under Diagnostic Code 5307. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding such an exceptional disability picture as to render the schedular criteria inadequate. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher and/or additional evaluations for his right finger disabilities based on the evidence. See 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel