Citation Nr: 18158690 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-08 458 DATE: December 18, 2018 ORDER Entitlement to a 10 percent rating, but not higher, for residuals of a right second metacarpal fracture, to include right hand arthritis, is granted for the entire period covered by this claim. FINDING OF FACT The Veteran has arthritis of the right hand and fingers with noncompensable limitation of motion, and which cannot be satisfactorily disassociated from the service-connected right finger fracture. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for entitlement to a 10 percent rating for residuals of a right second metacarpal fracture, to include right hand arthritis, have been met for the entire period covered by this claim. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 and 5225, 3.400(o)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army between February 1953 and February 1955. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran filed a notice of disagreement in January 2014. The AOJ issued a statement of the case in January 2015. The Veteran appealed to the Board in March 2015. The Veteran’s spouse testified on his behalf before a Veterans Law Judge (VLJ) in November 2017, and a transcript of the hearing has been associated with the claims file. Additionally, because the VLJ who conducted the November 2017 Board hearing is no longer employed by the Board, the Veteran was afforded the opportunity to have an additional hearing before the Board; however, the Veteran reported in March 2018 that he did not desire an additional hearing. The Board remanded the case to the AOJ in April 2018. The AOJ issued a supplemental statement of the case in October 2018. 1. Entitlement to a compensable rating for residuals of a right second metacarpal fracture Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s fractured right second metacarpal and its residuals have been service-connected since March 5, 1965. The Veteran has been in receipt of a noncompensable disability rating under DC 5225 since this date. Pursuant to DC 5225, a maximum 10 percent rating is assigned for favorable or unfavorable ankylosis of the index finger. 38 C.F.R. § 4.71a, Diagnostic Code 5225. DC 5225, Note (1) requires considering whether evaluation as an amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (2). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 52209 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 38 C.F.R. § 4.71a, Diagnostic Code 5003 governs degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 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 rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 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. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Service treatment records indicate that the Veteran fractured the second metacarpal on his right hand in October 1954. The Veteran and his wife credibly reported that the Veteran has experienced pain in his hand since the initial fracture. The Veteran and his wife have credibly reported that the Veteran’s painful episodes have gotten worse over the years and that during painful episodes the Veteran experiences limitation of motion. The Veteran had a VA examination for hand and finger conditions in October 2018. The examiner reported that the Veteran had degenerative arthritis in his right hand and also that he had residuals from a second metacarpal fracture in his right hand. The Veteran was unable to complete range-of-motion testing at this time, however the examiner opined that his inability to perform this testing was not consistent with the known medical science pertaining to the residuals of a metacarpal fracture and osteoarthritis. The examiner did not find a gap between the pad of the thumb and the fingers, nor between the finger and the proximal transverse crease of the hand on maximal finger flexion. The examiner did not find evidence of pain on use of the hand. The examiner was unable to say without resorting to speculation whether the Veteran experienced functional limitations due to pain, weakness, fatiguability, or incoordination after repeated use because the Veteran declined repetitive use testing. The examiner opined that the Veteran’s inability or unwillingness to perform repetitive use testing was also not consistent with the known medical science pertaining to the residuals of a metacarpal fracture and osteoarthritis. The examiner found that the Veteran had normal muscle strength in his right hand. The examiner did not find ankylosis of any thumb or finger joints in the right hand. The examiner conducted diagnostic testing which indicated that the Veteran had degenerative or traumatic arthritis in his right hand. In all, the examiner opined that the Veteran’s osteoarthritis was unrelated to his service connected residuals for right second metacarpal fracture. Further, the examiner noted that while the Veteran reported being unable to flex the fingers in his right hand, the examiner witnessed the Veteran leave the testing location with fingers on his right hand flexed around a file folder. By contrast, however, the Veteran previously was seen for a rheumatology appointment in October 2017 at a VA facility. The doctor did not see any active synovitis of the MCP joints. The doctor found that the Veteran had some downward subluxation at the right index and middle finger MCP joints. The doctor opined that the Veteran’s osteoarthritis was secondary to a jammed or broken wrist suffered while in service (however, service treatment records dating to the time of the original injury reflect the Veteran having had a broken finger, not wrist). The Veteran was seen for a rheumatology appointment in June 2014 at a VA facility. The doctor diagnosed the Veteran with osteoarthritis and said that this osteoarthritis may have been related to his service injury. This is consistent with a previous May 2013 outpatient medical record where the doctor diagnosed the Veteran with osteoarthritis in his right hand. The doctor noted that the Veteran had limited range-of-motion in his right hand. The Veteran reported that he was having constant pain at that time and that the pain affected his daily activities. This is also consistent with x-rays from March 2013 which revealed degenerative changes in the hand. The Veteran is competent to report the symptoms from which he suffers because no specialized knowledge, education, or experience is needed to report limitation of motion and pain. The Veteran’s reports of the symptoms he experiences are credible because there is no reason to doubt his credibility and most of what he reports is consistent with the available medical evidence. This is also true of the statements the Veteran’s wife has made: the available evidence indicates that the Veteran’s wife is active in helping to care for the Veteran and is aware of the symptomology, diagnoses, etc. pertaining to the Veteran’s hand and finger. The Veteran’s statements and his wife’s statements are afforded great weight as to the Veteran’s observable symptoms. At the very least, the evidence is in relative equipoise as to whether the Veteran’s residuals of his right hand finger fracture include arthritis of multiple joints in the right hand which causes pain and limited motion. Accordingly, the Board finds that the overall disability picture more nearly approximates the criteria for a 10 percent disability rating under DC 5003-5225 because x-ray evidence indicates that the Veteran has degenerative changes in his right hand and fingers but the limitation of motion from which he suffers would otherwise be noncompensable under DC 5225. There is no time period during this appeal where the evidence suggests that a different rating is warranted. The Veteran does not have ankylosis and his symptoms were relatively consistent throughout the appeal period. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Attorney Advisor