Citation Nr: 18155572 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-60 699 DATE: December 4, 2018 ORDER An initial 10 percent rating for left hand tenosynovitis is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. An initial rating in excess of 10 percent for lumbosacral strain is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the Veteran’s left hand tenosynovitis is manifested by noncompensable limitation of motion of a group of minor joints, with no evidence of incapacitating exacerbations; but there is credible evidence of painful motion. 2. Throughout the course of the appeal, range of motion testing of the Veteran’s lumbar spine did not show forward flexion functionally limited to 60 degrees or less or combined ranges of lumbar motion functionally limited to 120 degrees or less; and the Veteran’s lumbar spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. At no time during the appeal period has the Veteran been shown to have been prescribed bed rest by a physician to treat IVDS. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for left hand tenosynovitis have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5216-5230. 2. The criteria for an initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 2006 to July 2014. 1. Entitlement to an initial compensable rating for left hand tenosynovitis. The Veteran was granted service connection for tenosynovitis of the left hand in an April 2016 rating decision, with a noncompensable rating assigned February 8, 2016, the day the Veteran’s claim for service connection was received. The rating was assigned under Diagnostic Code 5220-5024. The Veteran has appealed this initial rating, asserting she is entitled to a compensable rating for her left hand disability. The Court of Appeals for Veterans Claims (Court) determined that the plain language of 38 C.F.R. § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DC’s predicated on range of motion measurements. In other words, § 4.59 does not condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions the award on evidence of an actually painful, unstable, malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC. Thus, the plain language of § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a DC predicated on range of motion measurements. Here, as discussed below the Veteran has credibly discussed the pain and functional limitation caused by her left hand disability. As such, the Board believes that a 10 percent rating, the minimum compensable rating, is warranted for the hand disability. The Board will now turn to a rating in excess of 10 percent for the hand disability. Diagnostic Code 5024 directs that tenosynovitis will be rated as degenerative arthritis based on limitation of motion of the affected parts 38 C.F.R. § 4.71a, Diagnostic Code 5024. Degenerative arthritis is rated under Diagnostic Code 5003. Diagnostic Code 5003 provides that, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code for that joint, a rating of 10 percent is for application for each such major joint or group of minor joints affected by (noncompensable) limitation of motion. In the absence of limitation of motion, a 20 percent rating is provided where there is 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, Diagnostic Code 5003. The hand, which includes involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, is considered a group of minor joints. 38 C.F.R. § 4.45(f). Further, for the musculoskeletal system hand and finger disabilities, ratings are assigned based on ankylosis and limitation of motion of single or multiple hand digits. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230. Specifically, Diagnostic Codes 5216 through 5227 are for application when favorable or non-favorable ankylosis is shown; and Diagnostic Codes 5228 through 5230 are for application for limitation of motion of individual digits. Id. The Board notes that diagnostic codes for ankylosis are not for application in the present case. As detailed below, the Veteran does not have, nor has she alleged that she has, ankylosis in any joints of her left hand. As for Diagnostic Codes 5228 through 5230, only Diagnostic Codes 5228 and 5229 provide possible compensable evaluations for limitation of motion of individual digits. See 38 C.F.R. § 4.71a, Diagnostic Codes 5228-5230. Thus, a discussion of Diagnostic Code 5230 is unnecessary, as the Veteran is seeking a compensable rating. Diagnostic Code 5228 provides the schedular rating criteria for limitation of motion of the thumb. A 10 percent evaluation is assigned when there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent evaluation is assigned when there is a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under Diagnostic Code 5229 for limitation of motion of the index or long finger, a 10 percent evaluation is assigned when there exists 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 for extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. If there is limitation of motion of two or more digits, each digit is evaluated separately and the evaluations are combined. See 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (5). Thus, because the hand allows multiple digits to be combined into a single diagnostic code, it is necessary to include all possible higher digit combination criteria. Here, the Board finds that the weight of the evidence supports an initial rating of 10 percent, but no higher, for the Veteran’s left hand tenosynovitis. The Veteran was afforded a VA examination for her left hand in April 2016. The report notes that the Veteran’s left hand is her dominant hand. She reported experiencing flare-ups of her left hand, finger, or thumb joints that caused pain, stiffness, and weakness. She also reported functional loss or impairment of the left hand joints, which she described as limiting her ability to lift and carry objects, and type or write. The examiner noted that the Veteran did not have ankylosis, either favorable or unfavorable, of any finger or thumb joint in her left hand. Range of motion tests were performed, and all fingers exhibited normal ranges of motion. Further, the examiner stated that there was no gap between the pad of the thumb and fingers of the Veteran’s left hand; nor was there a gap between any finger and the proximal transverse crease of the hand on maximal finger flexion. The examiner found no evidence of pain with use of the Veteran’s left hand. There was mild tenderness to palpation of the dorsum hand. The Veteran was examined immediately after repetitive use over time, and the examiner stated that pain, weakness, fatigability, and incoordination did not significantly limit her functional ability with repeated use over a period of time. The examination was not conducted during a flare up, but the examiner found that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. Muscle strength tests were normal, and the Veteran was noted as using a brace occasionally. The examiner stated there was no functional impairment of an extremity due to the Veteran’s left hand, finger, or thumb condition such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran’s left hand condition was noted as impacting her ability to perform occupational tasks in that it limited her ability to lift or carry heavy objects or to type. The Veteran submitted a written statement with her notice of disagreement in April 2016, disagreeing with the noncompensable rating assigned for her left hand disability. She wrote that her left hand pain was worsening with time, and affecting her ability to do everyday tasks, but she did not state that her left hand symptoms had increased in severity since her VA examination, which had occurred only two weeks prior. The Veteran submitted another written statement with her formal appeal to the Board in December 2016, wherein she stated that her left hand pain prevented her from writing for long periods of time, which caused her to stop going to school. She wrote that the hand constantly cramped and hurt in service, and it had not gotten better. There are no medical treatment records, either VA or private, associated with the claims file showing that the Veteran received medical treatment for her left hand condition during the appeal period. Nor has the Veteran identified any medical treatment providers for the condition post-service. The Veteran had submitted a written statement in February 2016 indicating that she had an upcoming appointment for imaging of her hand, which was to occur prior to the date of her VA examination. However, she did not mention this having happened in disclosing that she was treating her hand with pain medication and a brace to the VA examiner, and if she had been receiving medical treatment, she likely would have reported it during this section of the examination. Thus, the Veteran has not identified any additional records for VA to obtain, nor has she submitted any. In light of the above, the Board finds that a rating in excess of 10 percent is not available for the Veteran’s left hand condition under Diagnostic Codes 5228 or 5229 for limitation of motion, as the VA examiner found no gap between the pad of the thumb and fingers of the Veteran’s left hand; or between the finger and proximal transverse crease of the hand on maximal finger flexion. The Board has also considered whether compensable ratings are available under any other diagnostic codes for the Veteran’s service-connected left-hand disability. As discussed above, the April 2016 VA examiner stated that, due to the Veteran’s hand and finger conditions, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Thus, under Diagnostic Codes 5125 through 5156, there has been no indication of total loss of use of the Veteran’s service-connected left hand or of any fingers such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, Diagnostic Codes 5125-5156. As such, ratings under these diagnostic codes are also not warranted. 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 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. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The weight of the evidence also indicates that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 10 percent. At the VA examination during the appeal period, the Veteran did not display functional loss due to pain which resulted in decreased range of motion, nor were additional limitations of motion found after three repetitions. Further, the VA examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability in the Veteran’s left hand or fingers with repeated use over time. As such, while the Veteran may, at times, experience pain on range of motion, pain has not been shown to effectively limit motion in her left thumb, such that a gap of more than two inches between the thumb and the fingers results. Here, as described, the weight of the probative evidence of record demonstrates that the Veteran’s service-connected left hand disability warrants a rating of 10 percent, but no higher, throughout the appeal period. 2. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain The Veteran was granted service connection for lumbosacral strain in an April 2016 rating decision, with a 10 percent rating assigned February 8, 2016, the day the Veteran’s claim for service connection was received. The Veteran has appealed this initial rating, asserting she is entitled to a higher rating for her lumber spine disability. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS, or even that the Veteran has had IVDS at any time during the appeal period. She has not argued to the contrary, and the April 2016 VA examiner confirmed that the Veteran did not have IVDS, and did not state that bed rest had ever been prescribed for IVDS treatment. Further, there are no medical treatment records suggesting that she has ever been prescribed bed rest for IVDS during the appeal period. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate, and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 In April 2016, the Veteran underwent a VA examination for her thoracolumbar spine. The Veteran reported having low back pain since active service, which was episodic with increasing intensity and frequency of exacerbations. The Veteran also reported that flare-ups impacted the functioning of her lumbar spine, as she would experience pain and stiffness. Further, she reported that her lumbar spine disability resulted in functional loss or impairment, as it limited her ability to walk or stand for prolonged periods, bend, twist, and lift or carry objects. On examination, range of motion measurements were as follows: flexion to 90 degrees, with no objective evidence of painful motion; extension to 30 degrees, with no objective evidence of painful motion; right and left lateral flexion to 30 degrees or greater, with no objective evidence of painful motion; and right and left lateral rotation to 30 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, which did not cause any additional limitation of motion on any measurement. The examiner also noted that the Veteran was examined immediately after repetitive use over time, and neither pain, weakness, fatigability nor incoordination significantly limited functional ability with repeated use over a period of time. The examiner found that the Veteran had muscle spasm and localized tenderness of her lumbar spine, but neither resulted in abnormal gait or abnormal spinal contour. There was mild paraspinous tenderness to palpation, but no guarding was present, and all muscle strength tests were normal. The examiner stated that there were no additional contributing factors of disability, and the Veteran did not have muscle atrophy. Reflex exams, sensory exams, and straight leg raising tests were also all normal/negative. The Veteran was not found to have any radicular pain or symptoms, or any other neurologic abnormalities related to her thoracolumbar spine condition. Further, the examiner noted the Veteran did not use assistive devices to aid in locomotion. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms. Imaging studies were reviewed and there was no arthritis documented, nor was there evidence of a vertebral fracture. The examiner stated the Veteran’s thoracolumbar spine condition impacted her ability to work, in that it limited her ability to perform duties requiring heavy lifting. The Veteran submitted a written statement with her notice of disagreement in April 2016, disagreeing with the 10 percent rating assigned for her lumbar spine disability. She wrote that her back pain was worsening with time, but she did not state that her lumbar spine symptoms had increased in severity since her VA examination, which had occurred only two weeks prior. The Veteran submitted another written statement with her formal appeal to the Board in December 2016, wherein she stated that her back was painful daily, multiple times a day. She reported that her back pain prevented her from sitting for prolonged periods. She was taking Motrin for the pain, but it was not helping. There are no medical treatment records, either VA or private, associated with the claims file showing that the Veteran received medical treatment for her lumbar spine condition during the appeal period. Nor has the Veteran identified any medical treatment providers for the condition post-service. 38 C.F.R. § 4.71a clearly requires that a rating higher than 10 percent for a lumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward lumbar flexion to 60 degrees or less; a combined range of motion of the lumbar spine of 120 degrees or less; or abnormal gate or abnormal spinal contour resulting from severe muscle spasm or guarding. At no time during the appeal period has the Veteran exhibited flexion of her lumbar spine limited to 60 degrees or less. Further, her combined range of motion of her lumbar spine has not been shown to be 120 degrees or less. In addition, the Veteran has not been found to have an abnormal gait or abnormal spine contour. Therefore, the Veteran is not entitled to a schedular rating in excess of 10 percent for her lumbar spine disability at any time during the appeal period. As previously discussed, in evaluating disabilities of the musculoskeletal system, it is also 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. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The weight of the evidence here indicates that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 10 percent. Despite the Veteran submitting written statements stating otherwise, at her VA spine examination during the appeal period, she did not demonstrate on clinical testing functional loss due to pain which resulted in decreased range of motion, nor were additional limitations of motion found after three repetitions. Further, the VA examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability in the Veteran’s lumbar spine with repeated use over time. As such, while the Veteran may, at times, experience pain on range of motion, pain has not been shown to effectively limit the forward flexion in her back to 60 degrees or less, or to so functionally limit the range of motion in her back that the combined range of such limited motion was 120 degrees or less. Here, as described, the weight of the probative evidence of record fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent for a lumbar spine disability. As such, entitlement to a disability rating in excess of 10 percent for a lumbar spine disability is denied. In reaching these conclusions with respect to all of the claims on appeal, the Board has considered the assertions of the Veteran as to her symptomatology and the severity of her conditions, but, to the extent the Veteran believes that she is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than are the lay statements. Furthermore, the assertions of the Veteran regarding the severity of her disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly considered the Veteran’s subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel