Citation Nr: 18156793 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-08 165 DATE: December 11, 2018 ORDER Entitlement to an initial compensable rating for traumatic arthritis of the right fifth finger prior to December 3, 2013, is denied. Entitlement to an increased rating of 20 percent, but not higher, for traumatic arthritis of the right fifth finger from December 3, 2013, is granted. FINDINGS OF FACT 1. Prior to December 3, 2013, the Veteran’s right little finger disability was manifested by ankylosis, problems with grip strength, and pain. 2. From December 3, 2013, the Veteran’s right little finger disability is manifested by ankylosis, problems with grip strength, pain, and arthritis in multiple joints of the right little finger. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for traumatic arthritis of the right fifth finger prior to December 3, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5230, 5024, 5227 (2018). 2. The criteria for entitlement to an initial 20 percent rating for traumatic arthritis of the right fifth finger have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, DCs 5010-5230, 5024, 5227 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1964 to October 1966. Increased Rating 1. Entitlement to an initial compensable rating for traumatic arthritis of the right fifth finger prior to December 3, 2013 2. Entitlement to an initial compensable rating for traumatic arthritis of the right fifth finger from December 3, 2013 The Veteran’s traumatic arthritis of the right fifth finger is currently rated as noncompensably disabling under DC 5010-5230 for traumatic arthritis (DC 5010) and limitation of motion of the little finger (DC 5230). The Veteran alleges his right little finger disability warrants a compensable rating. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2018). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. DC 5010 provides that traumatic arthritis is to be rated under DC 5003. 38 C.F.R. § 4.71a, DC 5024. DC 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved. Under DC 5230, limitation of motion for the ring or little finger warrants a noncompensable evaluation. When, as here, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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 evaluation is assignable for x-ray evidence of involvement of arthritis of two (2) or more major joints or two (2) or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two (2) or more major joints or two (2) or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003. The Veteran was afforded a VA examination in March 2011. The Veteran reported persistent swelling and limited range of motion in the right little finger. On examination, the right little finger was swollen most prominently at the junction of the proximal and mid-interphalangeal joint. The mid- and distal-interphalangeal joints were deviated medially keeping the Veteran in normal anatomical position otherwise deviated outwards. The deviation was 15 degrees compared to the normal long axis of the little finger. Flexion of the distal interphalangeal joint was limited to 20 degrees (including on repetitive motion testing), the mid interphalangeal joint was severely limited to 5 degrees (including on repetitive motion testing), and the metacarpal interphalangeal joint was limited to 90 degrees (including on repetitive motion testing). Strength was measured between 3 out of 5 and 4 out of 5 depending on the finger joint and whether the motion was flexion or extension. Sensation was normal. Grip strength in the right (dominant) hand was 56 pounds and it was 44 pounds in the left hand. All other motion in the hand was normal. The impression was severe traumatic arthritis of the right little finger. The examiner noted that there appeared to be severe traumatic arthritis, but normal grip strength in the right hand compared to the left. The examiner indicated that the right little finger disability never incapacitated the Veteran or affective his activities of daily living or employment. That said, the Veteran reported that his grip strength was reduced and that he had dropped a cup on one occasion. His grip strength in holding a shovel was poor and the shovel often slipped. The examiner concluded that the right little finger disability was “moderately significantly impacting” the Veteran’s quality of life. X-rays showed medial deviation and swelling of the mid-interphalangeal joint of the right small finger. There was posterior and medial subluxation of the middle phalanx of the fifth digit without fracture. A July 2011 private treatment record indicated that the Veteran had swelling and bony deformity of the fifth finger on the right hand. There was minimal range of motion at the proximal interphalangeal joint, but the other joints of the right hand had good range of motion. There was pain on palpation of the joint. X-rays showed traumatic arthritis of the right hand small finger at the proximal interphalangeal joint. A letter from the Veteran’s private treating orthopedic physician indicated that the Veteran had progressive pain and deformity in the small finger at the proximal interphalangeal joint due to chronic fracture / dislocation. The plan was to fuse the joint in a better position to prevent progressive pain, which would relieve his pain but cause the Veteran to lose all motion in that joint. The physician believed that the Veteran would be about 30 percent disabled for the rest of his life because he was right-handed and the ulnar side of the hand was responsible for power grip. Private treatment records indicate that the Veteran underwent surgery on the right fifth finger on September 2, 2011. Ten days later the Veteran was seen for a post-operative visit and it was noted that there was a screw in a good position with good position of the finger with cascade intact. The assessment was status post right small finger proximal interphalangeal joint fusion. A December 3, 2013 Hand and Finger Conditions Disability Benefits Questionnaire (DBQ) is of record. The diagnoses included status post fracture of the right fifth finger, degenerative interphalangeal joint disease to right fifth distal interphalangeal joint, and right fifth finger ankylosis with 20-degree flexion palmar aspect (varus). The Veteran was right-handed and his current symptoms included pain and numbness. There were flare-ups that manifested in an inability to use his right hand like he used it prior to the in-service injury. There was noted painful motion in each finger on the right hand other than the thumb. There was a gap of 1 inch or more between the long finger, ring finger, and little finger and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. The painful motion of the long finger, ring finger, and little finger began at a gap of less than 1 inch. There was no limitation of extension in the fingers of the hand. There was no additional limitation of motion following repetitive motion testing. There was functional loss in that there was less movement than normal or weakened movement of the right long finger, ring finger, and little finger. There was pain on movement of the right index finger, long finger, ring finger, and little finger. There was deformity of the right little finger. There was no pain on palpation. Hand grip strength was normal in both hands. There was ankylosis of the right little finger of the proximal interphalangeal joint in full flexion and in rotation or angulation with a gap of more than 2 inches between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. The Veteran reported that his pain had worsened since the September 2011 surgery and he could no longer use his right hand in way he used to do. The finger was ankylosed at the proximal interphalangeal joint, with an obvious deformity of about 20 degrees toward the palmar aspect. The condition was not such that the Veteran would be equally well served with an amputation with prosthesis. Diagnostic testing showed degenerative or traumatic arthritis in multiple joints of the right little finger. The Veteran’s right finger condition impacted his ability to work in that there was difficulty gripping, grabbing, pinching, pulling, and pushing. He also had lost some dexterity of his right hand because of the pain and ankylosis. A June 2017 VA DBQ is of record. The diagnoses were traumatic arthritis of the right fifth finger and status post right fifth finger surgery with residual ankylosis. Flare-ups included the inability to bend his fingers or make a fist. The Veteran reported that he was unable to use his hand for anything. There was no noted functional loss or impairment due to the right fifth finger disability. Range of motion testing showed ranges of motion of the other fingers of the right hand to be normal in each joint. As to the right fifth finger, the metacarpal phalangeal joint range of motion was normal, but there was decreased motion in the proximal interphalangeal joint (30 degrees) and distal interphalangeal joint (0 degrees). There was pain in the right fifth finger at rest and pain on palpation, but no gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. The limited range of motion did not contribute to a functional loss. Left hand and finger ranges of motion were normal in all joints. There was less movement than normal due to swelling. Hand grip strength was 4 out of 5 on the right and 5 out of 5 on the left. The reduction in the muscle strength, however, was not due to the right fifth finger disability, but was due to cervical spine radiculopathy. There was no muscle atrophy. There was noted right little finger ankylosis at 30 degrees, without rotation or angulation. There was an associated scar (for which the Veteran is separately service-connected and rated). During his March 2018 Board hearing, the Veteran’s representative argued that the Veteran’s finger was not only swollen, but that he was unable to use it at all. The undersigned observed that the right fifth finger was swollen and somewhat deformed and out of position compared to the left hand. The Veteran testified that he was right-handed and that he had worked as a truck driver for a living. He testified that sometimes the right finger would go to sleep and that he experienced numbness in the finger. The Veteran had problems gripping objects and using his right hand for anything. He remained able to drive, but not for very far because the hand would cramp up. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, the Veteran is separately evaluated for right forearm mononeuritis and a residual scar from right little finger surgery. These issues are not properly before the Board and, therefore, entitlement to increased ratings for these issues may not be considered herein. As to the issue currently on appeal, the Board finds that for the period prior to December 3, 2013, a compensable rating for the Veteran’s right little finger disability is not warranted and that a 20 percent disability rating is warranted from that date. As to the period prior to December 3, 2013, as noted above a compensable rating for limitation of motion of the little finger is not warranted under DC 5230. In order to warrant a 10 percent rating under DCs 5003 / 5010 the Veteran would need to have noncompensable limitation of motion and arthritis of two minor joint groups. A group of minor joints, as it applies here, is defined as “multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities.” 38 C.F.R. § 4.45. In this case, prior to December 3, 2013, the Veteran had a diagnosis of arthritis of only one of the joints in his right little finger. As such, a compensable rating is not available under DCs 5003 / 5010 for any period prior to December 3, 2013. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, again, the Veteran is already assigned the maximum schedular rating available for his right little finger disability (i.e. a noncompensable rating). In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. Thus, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, are not applicable for this portion of the appeal. As to the period from December 3, 2013, on that date x-ray evidence obtained one day earlier was reported, evaluated, and demonstrated arthritis of multiple joints in the right little finger. Contemporaneously, the Veteran had limitation of motion of multiple joints of the right little finger. As such, a compensable rating under DCs 5003 / 5010 is warranted. In reaching that determination, there is no clear indication that the arthritis of the distal interphalangeal joint is related to the service-connected proximal interphalangeal joint disability and, as such, the Board will afford the Veteran the benefit of the doubt that the arthritis of the distal joint is associated with the proximal. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant’s favor). The Board has considered the Veteran’s reports of his inability to drive due to cramping, pain, and numbness in the right hand and his past employment as a truck driver. While the Board recognizes that the most recent medical examination concluded that the Veteran’s service-connected right-hand disability had no effect on occupational functioning because his right-hand grip problems were due to non-service connected neck radiculopathy symptoms. That said, the examiner did not explain how or why the Veteran’s objective right little finger pain, ankylosis, and overall limited motion had no effect on occupational functioning, particularly in light of the previous medical evidence. In addition, during the March 2018 Board hearing the undersigned noted the deformed nature of the hand and the extreme limitation in function. As such, the Board will afford the Veteran the benefit of the doubt that his right little finger disability resulted in occasional incapacitating episodes for rating purposes under DCs 5003 / 5010. As such, the Board finds that from December 3, 2013, that a 20 percent disability rating is warranted. In reaching the decision with respect to the effective date assigned, the Board recognizes that the arthritis of the distal interphalangeal joint likely did not develop on December 3, 2013, but this was the first day that X-ray evidence was reported and noted by an examiner and there is no prior date that clearly demonstrated arthritis of two joints of the right little finger. As such, December 3, 2013, is the earliest date for which a 20 percent disability rating can be assigned. For the period from December 3, 2013, a higher rating is not warranted under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca because, as above, the Veteran is in receipt of the highest possible rating based on limitation of motion. In addition, no other applicable DC would warrant an increased rating in this case for any period on appeal. Ankylosis in the major or minor little finger or ring finger is rated non-compensable under DC 5227. 38 C.F.R. § 4.71a, DC 5227 (2018). Extremely unfavorable ankylosis is to be rated as amputation under DC 5156, but a 20 percent rating is the maximum rating under that DC and would not afford the Veteran a higher rating (even presuming extremely unfavorable ankylosis). The Board notes that the Veteran has problems with other fingers of the right hand, but the medical evidence has not linked these problems to the service-connected right little finger disability and, indeed, there is evidence specifically linking such problems to other problems including the cervical radiculopathy. As such, separate or higher ratings are not warranted for problems with the other fingers on the right hand. As noted above, the Veteran is separately service-connected and rated for right forearm mononeuritis and a residual scar from right little finger surgery. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether raised by the Veteran or by the record. In this case, the Board finds no provision upon which to assign a compensable rating prior to December 3, 2013, or a rating greater than 20 percent from that date for the Veteran’s traumatic arthritis of the right fifth finger. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel