Citation Nr: 18157194 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 16-57 215 DATE: December 13, 2018 ORDER An initial rating of 10 percent but no higher for service connected healed fracture of the right fifth metacarpal is granted. REMANDED Entitlement to service connection for right hand osteoarthritis (claimed as right-hand pain) is remanded. Entitlement to service connection for a right wrist condition is remanded. FINDING OF FACT The probative evidence of record reflects the Veteran’s healed fracture of the right metacarpal has been at worst, productive of degenerative arthritis, no limitation of motion or ankylosis and no diminished functioning such that amputation with prosthesis would equally serve the Veteran. CONCLUSIONS OF LAW The criteria for an initial 10 percent disability rating, but no higher for fracture of the fifth metacarpal have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5010, 5156, 5227, 5230 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to February 1983. 1. Increased rating for healed fracture of the right fifth metacarpal (little finger disability) The Veteran contends that he is entitled to a compensable rating for his service connected right little finger disability. See November 2016 VA Form 9. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, 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 benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board has reviewed all the evidence in the Veteran’s electronic file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Applicable DCs DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating 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. 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2) in DC 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. Under DC 5226, the sole and maximum evaluation of 10 percent is assigned for favorable or unfavorable ankylosis of the (major or minor) index or middle finger. A note accompanying the DC 5226 states that the Board should also consider whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Under DC 5227, the sole and maximum evaluation of zero percent is assigned for favorable or unfavorable ankylosis of the (major or minor) ring or little finger. A note accompanying the DC 5227 states that the Board should also consider whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Under DC 5229, a maximum evaluation of 10 percent is assigned for limitation of the index or long finger (major or minor hand) with 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. A noncompensable (0 percent) disability rating is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. Under DC 5230, the sole and maximum evaluation of zero percent is assigned for any limitation of motion of the (major or minor) ring or little finger. DC 5156 contemplates amputation of the little finger, and a 20 percent rating is assigned for major or minor hand little finger amputation with metacarpal resection (more than half the bone lost). Without resection of the metacarpal, amputation of the little finger of the major or minor hand at the proximal interphalangeal joint or proximal thereto warrants a rating of 10 percent. 38 C.F.R. § 4.71a, DC 5156. Factual Background The Veteran underwent a VA examination in August 2014 relating to his right little finger disability. See August 2016 VA Hand and Finger Conditions Disability Benefits Questionnaire (DBQ). The Veteran reported having intermittent pain of his hand described as sharp and burning. He also reported he had difficulty opening a can of soda. Id. The Veteran also reported flare-ups with decreased range of motion (ROM). Id. The examiner diagnosed the Veteran with osteoarthritis of the right hand. In the remarks, the examiner noted the X-ray showed mild osteoarthritic changes of the thumb metacarpophalangeal (MCP) and index MCP joints, and minimal deformity bowing of the 5th metacarpal distally which may reflect an old healed fracture. However, the examiner found that there was no evidence of limitation of motion or painful motion in any finger upon objective examination. Id. The Veteran could perform repetitive-use testing with three repetitions but additional limitation of motion was noted in the right little finger after repetitive testing. There was no gap between the thumb pad and the little right finger post-test, and no gap between the fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-test. There was no functional loss or functional impact of the finger noted. There was no pain on palpation found upon examination. Muscle strength testing indicated normal hand grip. There was no ankylosis present. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices. The functional impairment was not of such severity that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Id. The Veteran’s VA treatment records confirm he complained of achy pains in his right hand and requested an injection for his pain in April 2015. See VA Telephone Care Nurse Triage, in CAPRI received on July 2015. His treatment records also confirm the Veteran was being treated by a private physician for rheumatoid arthritis. See November 2014 Family Medicine – Southwest Des Moines record. In June 2016, the Veteran was provided another VA examination relating to his right little finger disability. See June 2016 VA Hand and Finger Conditions DBQ. The examiner diagnosed the Veteran with rheumatoid arthritis and history of fracture of fifth metacarpal. Id. The Veteran reported difficulty with tying shoelaces, personal hygiene, and endorsed pain when gripping objects. He also reported he takes motrin 800 milligrams three times a day and codeine as need for his hand pain. The examiner confirmed the Veteran is right hand dominant. Id. The Veteran described that his flare-ups are caused by overexertion or gripping and will result in throbbing pain which includes sharp stabbing pains in his fifth metacarpal. Id. The Veteran was noted to have abnormal range of motion (ROM) upon examination. There was no gap between the pad of the thumb and the fingers, but a gap was found between the finger and proximal transverse crease of the hand on maximal finger flexion which was 3 cm for the index finger. Id. The examiner noted that rheumatid arthritis caused the abnormal ROM. The examiner stated that the abnormal ROM contributed to function loss including inability to form a grip to hold things such as toilet paper. Id. Pain was noted of ROM testing in finger flexion, finger extension and opposition with thumb. The examiner also found there was evidence of pain with use of hand and objective evidence of pain on palpitation over the fifth metacarpal and MCP, fourth MCP joint, and first MCP joint. Id. The examiner also found that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time in the Veteran’s right hand. Id. No ankylosis was found in the Veteran’s hands. Id. And he was noted to have a brace which he wore constantly. Id. Regarding the remaining effective function of his right extremity, the examiner noted that the Veteran’s right upper extremity is so diminished that amputation with prosthesis would equally serve the Veteran. A June 2016 X-ray of the Veteran’s right hand taken for the VA examination was negative for fracture or dislocation. See June 2016 VA X-ray. The Veteran’s representative provided private treatment records from Dr. Z. H. Iowa Arthritis Clinic dated December 2016. The Veteran reported that he had mild to moderate pain which is constant and had worsened. He also reported pain was aggravated by movement. Dr. H.Z. diagnosed the Veteran with distal radioulnar joint (DRUJ), post-traumatic arthritis, right, and arthritis of right hand. Id. Dr. H.Z. also noted that “Xray of the right hand and wrist were reviewed and show traumatic arthritis of the 5th MP joint and DRUJ.” Id. Analysis The Veteran’s right little finger disability is currently rated under Diagnostic Code (DC) 5230. Initially, the Board notes that DC 5230 only provides for a zero percent rating for little finger limitation of motion of the major (dominant) side. Likewise, DC 5227, for ankylosis of the little finger, provides for only a zero percent rating. Hence, a higher rating is assignable only pursuant to another diagnostic code. Significantly, the Board notes that x-ray evidence of degenerative arthritis was identified during the August 2014 VA examination, thus implicating the potential application of DC 5003. See 38 C.F.R. § 4.71a, DC 5003 (“[when] limitation of motion of the specific joint or joints involves is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion”). Although the Board notes that the August 2014 VA examiner did not find evidence of limitation of motion, the June 2016 VA examination found pain with use of hand and revealed pain on palpitation of the Veteran’s right metacarpal. Thus, based on the foregoing and giving the benefit of the doubt in favor of the Veteran, the Board finds a 10 percent disability rating under DC 5003, though no higher, is warranted for the Veteran’s right fifth metacarpal disability for the entire period on appeal. Specifically, under DC 5003, the record demonstrates evidence of findings of degenerative arthritis confirmed by X-ray and objective evidence of limitation of motion for the Veteran’s right fifth metacarpal disability. The Board also concludes that despite the August 2014 findings that Veteran had degenerative arthritis in multiple joints of the right hand, a 20 percent disability rating under DC 5003 (which requires involvement of two or more minor joint groups) is not warranted because the Veteran is only service-connected for his right little finger. A separate or higher rating is not available under DC 5227, which pertains to ankylosis of the ring or little finger, as the VA examination report shows that he had some range of motion of the right little finger. See 38 C.F.R. § 4.71a. Accordingly, he does not have ankylosis of the right little finger, and such has never been diagnosed. Therefore, DC 5227 does not apply. In this case, the Board observes that the 10 percent disability rating exceeds the maximum possible rating assignable for limitation of motion or ankylosis of a little finger disability. See 38 C.F.R. § 4.71a, DCs 5227, 5230. A higher disability rating for the right little finger is not warranted as there are no findings that more nearly approximate major or minor hand little finger amputation with metacarpal resection (more than half the bone lost) or findings that functioning is so diminished that amputation with prosthesis would equally serve the Veteran. Therefore, a higher, 20 percent disability rating under DC 5156 is not warranted at any time for this disability. Notably, a separate 10 percent rating could not be assigned for limitation of motion of the right little finger and/or ankylosis, including ankylosis akin to amputation, as this would clearly violate the rule against pyramiding by compensating twice for the same manifestations, namely limitation of motion. See 38 C.F.R. §§ 4.14, 4.71a. In sum, a 10 percent rating already compensates for significant pathology of the right little finger, including ankylosis (which is not present) and including amputation of the right little finger. Thus, a rating greater than 10 percent is not available based on the Veteran’s service-connected pathology of the right little finger. The Board has also considered the Veteran’s lay statements regarding the severity of his disability. The Board acknowledges his belief that his symptoms are of such severity as to warrant a higher rating for his little finger injury; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to testify as to his symptoms and the Board finds his statements credible, the medical findings, which directly address the criteria under which the service-connected disabilities are evaluated are more probative than his assessment of the severity of his disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For all the foregoing reasons, the Board finds that the Veteran is entitled to a 10 percent, but no higher, rating for noncompensable but painful limitation of motion of the right ring finger with X-ray evidence of degenerative arthritis. In reaching this conclusion, the Board has favorably applied the benefit-of-the-doubt doctrine in granting an initial 10 percent rating, but finds that the preponderance of the evidence is against assignment of any higher schedular rating at any pertinent point. See 38 U.S.C § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right hand osteoarthritis (claimed as right-hand pain) is remanded. The Board finds a remand is warranted for a new VA examination and additional development for the Veteran’s claim for service connection for right hand pain because the VA examinations of record provide insufficient information to decide the claim. a) Additional Development The Board notes that the Veteran was diagnosed with osteoarthritis of right hand in the August 2014 VA examination. See August 2014 VA Hand and Finger Conditions DBQ. However, the record fails to provide the X-ray report confirming arthritis of the right hand. On remand, a copy of the X-ray report from August 2014 should be associated with the claims file. Additionally, the Veteran’s representative stated that the Veteran’s private treatment records from Iowa Arthritis & Osteoporosis Center contain an X-ray report confirming his diagnosed osteoarthritis. See May 2018 Correspondence. A remand is warranted to obtain these private treatment records. b) VA examinations The August 2014 VA examiner provided a negative nexus opinion regarding the Veteran’s right-hand pain because the Veteran’s in-service injury was acute, and there was no evidence of chronicity. The examiner did not provide any rationale or additional information to support his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.) Additionally, the Veteran’s VA treatment record from July 2014 indicates he complained of chronic right sided arthritic pain for the past 25 years. See July 2014 VA History and Physical, in CAPRI received in September 2016. The Board also notes that the Veteran’s service treatment records (STRs) indicate that in addition to being treated for a right fifth metacarpal fracture in October 1979, the Veteran was seen for complaint of right hand pain in January 1980 and was awaiting an orthopedic consult. See STR-Medical. The VA examiner did not address whether the Veteran’s current right-hand disability is related to the January 1980 complaint of right hand pain. As such a remand is warranted for a new VA examination to provide an opinion with an adequate rational regarding the nature and etiology Veteran’s claimed right hand disability to include the January 1980 complaint of right hand pain. The Board also finds that the September 2016 VA examination is inadequate to the extent that it fails to address all of the requirements for secondary service connection. See September 2016 VA Medical Opinion DBQ. Specifically, the examiner opined that the Veteran’s right-hand disability was not proximately due to or the result of the Veteran’s service-connected disability. However, the examiner failed to address aggravation. Accordingly, a new medical opinion addressing whether the Veteran’s right-hand disability was aggravated beyond its natural progression by the Veteran’s service-connected right metacarpal disability is necessary. 2. Entitlement to service connection for a right wrist condition is remanded. The Board finds a remand is warranted to address the nature and etiology of the Veteran’s current right wrist disability because the VA examinations of record did not provide all the information necessary. Specifically, the August 2014 VA examination, did not provide a specific diagnosis for the Veteran’s right wrist disability. The only diagnosis provided was osteoarthritis of right hand. Additionally, in providing a negative nexus opinion the examiner stated that the Veteran was being treated for rheumatoid arthritis at the time and noted that the Veteran was treated for hand fracture not wrist fracture during service. The rationale is unclear whether the Veteran has a current wrist fracture or if the wrist pain is related to rheumatoid arthritis. Thus, a remand is warranted to determine the nature and cause of the Veteran’s current right wrist pain. The Board also finds that the June 2016 VA examination failed to address whether the Veteran’s service connected right finger disability aggravated the Veteran’s current right wrist disability. Accordingly, a new medical opinion addressing aggravation is warranted. Additionally, the Veteran’s private physician Dr. Z.-H.H. opined that the Veteran has arthritis of the right wrist, which is directly related to the Veteran’s 1981 injury. On remand, the VA examiner should address this opinion in providing a nexus opinion. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant and outstanding medical records including the Veteran’s right hand and wrist X-ray reports as well as private treatment records from Iowa Arthritis and Osteoporosis Center, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim including private treatment records, X-ray reports, and/or nexus opinion(s). 3. After steps 1 and 2 are completed, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of the Veteran’s claimed right hand and wrist disability(s). All tests and studies deemed necessary shall be performed. 4. The examiner should be provided with the Veteran’s claims file, including a copy of this remand. For each current right hand and wrist disability identified, the examiner is specifically instructed to provide the following information: (a.) Is it “at least likely as not (50 percent probability or greater)” that the Veteran’s right hand or wrist disability(s) began in or is related to his active duty service, to include the October 1979 right little finger fracture, or the January 1980 complaint of right hand pain? (b.) it at least as likely or not (50 percent probability or greater) that the Veteran’s current right hand or wrist disability(s) had its onset or manifested within one year of the Veteran’s discharge in February 1983? (c.) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of his separation from service. (d.) Regarding the Veteran’s right wrist disability, the examiner must address the private nexus opinion provided by Dr. Z.-H.H. and state whether the examiner agrees or disagrees with this opinion and the reasons therefor. In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran’s lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran’s statements and all other relevant evidence make sense from a medical point of view. This includes the Veteran’s account of experiencing chronic pain for the past 25 years. (e.) Whether the Veteran’s currently diagnosed right wrist and right-hand disabilities were caused or aggravated beyond their natural progression by the Veteran’s service-connected right little finger disability. (Continued on the next page)   The examiner is informed that aggravation here is defined as a permanent increase in disability beyond natural progress of a disease. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A full rationale should be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel