Citation Nr: 1808149	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-20 603	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a compensable evaluation for traumatic arthritis of the right ring finger.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel

INTRODUCTION

The Veteran had active duty service from March 1964 to March 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

A hearing before the undersigned Veterans Law Judge was held in February 2014 at the Little Rock, Arkansas RO.  A transcript of the hearing has been associated with the claims file.

This matter was previously remanded by the Board for further development in May 2015.  The requested development has been completed and this matter is returned to the Board for further consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

Throughout the period on appeal, the Veteran's right ring finger disability was manifested by noncompensable limitation of motion with arthritis, and no ankylosis, even when considering any additional functional loss.


CONCLUSION OF LAW

The criteria for a compensable rating for the Veteran's traumatic arthritis of the right ring finger have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5003 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in February 2014.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand.

Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

In reviewing the adequacy of the existing VA examination reports, certain range of motion testing be conducted whenever possible in cases of joint disabilities.  38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016).  "[T]he joints involved should be 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 jointCorreia, 28 Vet. App. 158.  In this case, however, the Board notes that the maximum disability rating under the applicable code for limitation of motion of the ring finger (Diagnostic Code 5230) is 0 percent, a noncompensable rating.  Accordingly, a remand for additional testing on both active and passive motion pursuant to Correia would be irrelevant to the rating assignable for limited range of motion of the ring finger.  As such, the existing examination reports are deemed adequate for rating purposes, and a remand under Correia is not warranted.

The Board also finds that there has been compliance with the prior May 2015 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).


II. The Merits of the Claim

The Veteran asserts that his service-connected traumatic arthritis of the right ring finger is worse than currently evaluated. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. 
§ 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

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.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

As such, the Board will analyze the evidence of record against the criteria set forth above.  Before doing so, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, placing 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 obligation to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim.

The Veteran's right ring finger has been evaluated under Diagnostic Code 2010-5003 as noncompensable since June 8, 1999.

Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).  When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate Diagnostic Codes, 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 evaluation 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 evaluation 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.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).

For the purpose of rating disabilities from arthritis, major joints include the shoulders and wrists; the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints.  38 C.F.R. § 4.45(f) (2017).

The Board notes that the rating criteria that are applicable to the Veteran's right ring finger disability are identical for the major (dominant) extremity and the minor (non-dominant) extremity.

Under Diagnostic Code 5230, limitation of motion of the ring or little finger, any limitation of motion is noncompensable.  Under Diagnostic Code 5227, ankylosis of the ring finger is assigned a noncompensable evaluation.  Under Diagnostic Code 5155, amputation of the ring finger, a 10 percent evaluation is warranted for amputation of the ring finger on the major or minor hand, without metacarpal resection, at the proximal interphalangeal joint or proximal thereto.  38 C.F.R. § 4.71a, Diagnostic Code 5155.  It is noted that single finger amputation ratings are the only applicable ratings for amputations of whole or part of single fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5155, at Note.

For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.  38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (1).  The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads.  Only joints in these positions are considered to be in favorable position.  For digits II through V, the metacarpophalangeal joint (MCP) has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint (DIP) has a range of zero to 70 or 80 degrees of flexion.  Id.  

The Veteran underwent a VA examination of his hand and finger in August 2010.  The VA examiner noted the Veteran had symptoms of stiffness in his right ring finger but no pain.  There was noted deformity involving the right ring finger.  The motion was limited somewhat as compared to the opposite side but he did not have instability or tenderness in the injured joint, which was the proximal joint of this right ring finger.  Repetitive gripping with his right hand resulted in some stiffness sensation in the PIP joint.  The right finger has a 16 degree apex medical angulation at PIP joint.  There were degenerative changes at the PIP joint.  There was no instability or tenderness.  Range of motion was MCP to 60 degrees, PIP to 105 degrees, and DIP to 35 degrees.  

At the 2014 Board hearing, the Veteran reported nagging pain that was seven out of ten when off his medication and a four out of ten while on medication.  

In July 2015, the Veteran underwent a new VA examination of the finger where a diagnosis of arthritis in the right hand was confirmed.  The report indicated the Veteran's left hand was dominant and he did not report flare-ups in the hand, finger, or thumb joints.  He did not have any functional loss or functional impairment of the right ring finger.  A range of motion study indicates his right hand was normal.  No pain was noted on examination or evidence of pain with use of the hand.  The Veteran had normal strength in his hand with no evidence of muscle atrophy.  There was also no evidence of ankyloses.  Imaging studies revealed traumatic arthritis in the right hand but not in multiple joints of the same hand.  Finally, the VA examiner determined that the Veteran's right ring finger disability did not impact his employment or interfere with his activities. 

After review of the record, the Board finds that a 10 percent evaluation is not f or assignment.  The evidence did not show arthritis of a group of minor joints or two or more minor joint groups.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).  Veteran's limitation of motion of the right ring finger is noncompensable under Diagnostic Code 5230.  The Board has considered ratings under Diagnostic Codes 5219, 5223, or 5227, however, ankylosis has not been shown during the appeal period.  Therefore, a higher rating is not warranted.

The Board has also considered ratings under Diagnostic Code 5155, providing for ratings based on amputation of the ring finger.  However, the July 2015 VA examiner opined that the Veteran would not be served equally well by amputation of the finger.  Therefore, a rating of 10 percent is not warranted under this Diagnostic Code.

The Board has considered the Veteran's statements regarding having difficulty performing fine motor tasks such as buttoning his buttons and tying his shoes, as well as his subjective symptoms, including pain.  However, the Board concludes that the medical findings on objective examinations are of greater probative value than the lay allegations regarding the severity of the Veteran's right ring finger disability.

Accordingly, the Board finds that the Veteran's right ring finger disability warrants the assigned noncompensable rating from September 1, 2012. A rating in excess of zero percent is denied as the Veteran's symptoms do not meet the higher ratings criteria.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to a compensable evaluation for traumatic arthritis of the right ring finger is denied.




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs