Citation Nr: 18158662 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 11-18 109 DATE: December 18, 2018 ORDER A separate 10 percent rating for limitation of motion of the right thumb associated with right ring finger injury residuals, effective May 23, 2008, is granted. A rating higher than 10 percent for right hand manifestations, other than limitation of thumb motion, associated with right ring finger injury residuals, is denied. VETERAN’S CONTENTIONS The Veteran contends that a higher rating is warranted for his right hand disability associated with his service-connected right ring finger injury. Specifically, he argues that a higher rating is warranted for his overall right hand disability because, with use, he experiences pain, swelling, and weakness, which result in an impaired ability to grip, write, and use the hand. FINDINGS OF FACT The Veteran’s right hand disability associated with his service-connected right ring finger injury residuals is manifested by pain, a weakened grip, and limited motion of the thumb, index, long, ring, and little fingers; it is not manifested by moderately-severe muscle disability resulting from a through and through or deep penetrating wound, unfavorable ankylosis of the thumb or multiple fingers, or limitation of thumb motion with a gap of more than 2 inches between the thumb pad and the fingers. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating for limited right thumb motion associated with right ring finger injury residuals have been met, effective May 23, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71(a), Diagnostic Code 5228, 4.73, Diagnostic Code 5309. 2. The criteria for a rating higher than 10 percent for right hand manifestations, other than limitation of thumb limitation, associated with right ring finger injury residuals, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71(a), Diagnostic Codes 5229-5230, 4.73, Diagnostic Codes 5307-5309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to August 1985. This matter is before the Board following the Veteran’s appeal of an October 2009 rating decision. By way of history, as part of the current appeal, the Board denied entitlement to an increased rating for the Veteran’s right ring finger disability on a schedular basis in November 2015, and on an extraschedular basis in September 2017. In the September 2017 decision, however, the Board found that a separate 10 percent rating was warranted for right hand manifestations associated with the right ring finger injury residuals, and remanded entitlement to a rating higher than 10 percent. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Increased Rating for Right Hand Manifestations Associated with Right Ringer Finger Injury Residuals As an initial matter, the Board observes that an October 2018 rating decision granted a separate 10 percent rating under Diagnostic Code 5309 for muscle impairment limitation of right hand motion associated with the Veteran’s right ring finger residuals. At issue is whether a rating higher than 10 percent is warranted. Diagnostic Code (DC) 5309 governs function of the forearm muscles, which act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. Intrinsic muscles of the hand include: thenar eminence; short flexor, opponens, abductor and adductor of thumb; hypothenar eminence; short flexor, opponens and abductor of little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei. DC 5309 provides that Group IX muscle injuries should be rated based on limitation of motion, with a minimum 10 percent rating. A note to DC 5309 states that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. See 38 C.F.R. § 4.73. Here, the Board first finds that a separate 10 percent rating for limitation of right thumb motion is warranted. Under Diagnostic Code 5228, a 10 percent rating is warranted for limitation of thumb motion with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. A higher and maximum 20 percent rating is warranted under that code for limitation of thumb motion with a gap of more than two inches. Id. The evidence shows that, while a March 2011 VA examination did not reveal any limitation of thumb motion, limited thumb motion was objectively shown during subsequent VA examinations in January 2015 and May 2018. Specifically, a January 2015 examination report shows limited right thumb motion resulting in a gap of less than one inch with the thumb attempting to oppose the fingers. In May 2018, an examiner noted maximum right thumb flexion of the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints to 50 degrees on physical examination, and further estimated maximum thumb flexion to 40 degrees with repeated use over time, and to 30 degrees with flares, for each the MCP and PIP. Additionally, the Board observes that during VA treatment in February 2014, the Veteran specifically reported that he really only had problems when he was trying to use his hand. Thus, the Board finds that the lack of more severe findings during an examination (in which he is not really using his hand) is not dispositive of the Veteran’s claim. Indeed, while grip strength was found to be full at 5/5 during the three VA examinations in 2011, 2015, and 2018, reduced grip strength of 3/5 was noted during VA treatment in December 2013. Problems with extreme grip were also noted in July 2007, and weakened grip was also objectively noted in February 2014. Given the foregoing, the Board finds that, resolving doubt in favor of the Veteran, the evidence supports entitlement to a separate 10 percent rating for thumb limitation, effective May 23, 2008, the date of service connection for the underlying right ringer finger disability. The Board again acknowledges that the March 2011 VA examination showed no limitation of thumb motion, and the January 2015 examination did not show a gap of at least 1 inch to warrant a 10 percent rating under DC 5228. Nevertheless, further limitation of motion during flares and with repeated use was estimated by the May 2018 examiner, and the evidence otherwise supports that the Veteran had experienced flares and/or more severe disability with use at various times since 2007. Thus, while the Veteran may not have constant limitation in the right thumb that meets the criteria for a 10 percent rating, the evidence supports that with repeated use and during flares, he experiences additional functional limitation such that the criteria for such a rating are more nearly approximated. However, the Board finds that a higher 20 percent rating is not warranted for limitation of right thumb motion at any time. As discussed, at times, the Veteran also exhibited no limitation of thumb motion, and there is no objective evidence of a gap of more than 2 inches between the thumb pad and the fingers. Nor is there any evidence of ankylosis of the right thumb, let alone unfavorable ankylosis. 38 C.F.R. § 4.71a, DC 5224. On the contrary, the VA examinations in 2011, 2015, and 2018 all show movement of the thumb. Thus, there is no basis upon which to assign a higher 20 percent rating for right thumb limitations associated with the right ring finger injury residuals affecting the right hand. Similarly, the Board finds that a rating higher than 10 percent is not warranted at any time based any limitation of right hand motion other than the thumb, despite evidence of limitation of motion in all fingers in the Veteran’s right hand during the most recent May 2018 VA examination. In this regard, absent evidence of ankylosis in multiple joints, a higher rating is not available. Specifically, a compensable rating is not available for any limitation of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. Additionally, a maximum 10 percent rating – such as has already been assigned here – is available for limitation of the index or long finger. 38 C.F.R. § 4.71a, DC 5229. Thus, the only way to obtain a rating in excess of 10 percent for limitation of motion of the right hand other than thumb, is by establishing ankylosis of two or more fingers. 38 C.F.R. § 4.71a, DCs 5216-5223. Here, however, no ankylosis was found during VA examinations in 2011, 2015, or 2018, nor has any been documented in the clinical records. Thus, a rating higher than 10 percent is not warranted for limitation of the motion of the Veteran’s right index, long, or ring fingers. In making the above findings, the Board has considered the evidence of additional limitations with flare-ups and repeated use, as well as the Veteran’s subjective reports of functional impairment, to include not having any use of the right hand at times as reported in a May 2010 statement. However, the Board notes that, despite his reported limitations and impairment in his right hand, he still appears to have retained significant use of his right hand. For example, in July 2007, it was noted that the Veteran had “occasional hand pain” and “good function,” except with extreme grip. In June 2013, the Veteran reported that he worked on-call painting cars for a friend and had done so for the last 12 years. In February 2014, the Veteran reported additional right hand symptoms after prolonged holding of objects, such as the sander during his job at an auto shop. Such evidence supports that the Veteran worked in a position that required significant use of his right hand. More recently, in January 2017, March 2018, and July 2018, he reported that he worked as a painter and/or exercised at the bike shop where he worked. Thus, despite his right hand limitations, the evidence during the appeal period shows that the Veteran worked in jobs requiring likely significant use of his right (dominant) hand. As such, even considering functional complaints and involvement of multiple fingers and the thumb, a higher rating is not available for any finger limitation here, and the Board finds that the level of disability is not equally balanced between 10 and 20 percent ratings for the thumb such that a higher 20 percent rating is warranted. As a final matter, the Board has considered whether a higher rating might be available under any other diagnostic code – namely, Diagnostic Codes 5307 and 5308, which also involve muscles of the forearm and hand. 38 C.F.R. § 4.73. However, the evidence in this case demonstrates that the Veteran’s right hand manifestations of his residuals of a right ring finger injury have been productive of no worse than moderate muscle impairment, for which the Veteran has been compensated based on limitation of motion pursuant to the diagnostic code for muscle impairment that specifically contemplates grip (his predominant complaint). 38 C.F.R. § 4.73, DC 5309. Furthermore, the rating criteria provide that, to warrant a higher 20 percent rating for moderately severe muscle disability under Diagnostic Codes 5307 or 5308, the evidence must show a “through and through” or deep penetrating wound, which is not applicable here. See 38 C.F.R. § 4.56(b). Moreover, there is no evidence that the Veteran’s initial injury was productive of debridement, prolonged infection, sloughing of soft parts, or intermuscular scarring. In terms of objective findings, there has been no evidence of loss of deep fascia, muscle substance, atrophy, or muscle firmness at any time during the appeal period. Rather, objective findings on examination, including most recently in May 2018, have revealed no fascial defects, muscle damage, atrophy, or flaccidity and, in fact, the May 2018 VA examiner found no actual muscle involvement. In sum, the Board finds that for the Veteran’s right hand manifestations associated with the right ring finger injury, a separate 10 percent rating, but not higher, is warranted, effective May 25, 2008, for right thumb involvement. However, a rating higher than 10 percent for limitation of the fingers of the right hand is denied, as the other 10-percent rating is the maximum available rating under the DCs governing limitation of motion for fingers not involving the thumb. See 38 C.F.R. § 4.71(a), DCs 5229-5230. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel