Citation Nr: 1815212	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  11-14 278	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable rating for residuals of a left fifth metacarpal fracture.

REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from August 1979 to October 1982.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

This claim was previously before the Board in November 2015 and May 2016, at which time the Board remanded it for additional development.  Most recently, the Board remanded the claim in August 2017.  A review of the record shows that the AOJ has complied with all remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The Board observes that in the Veteran's April 2011 substantive appeal he requested a Board hearing.  In correspondence received in September 2011, however, the Veteran withdrew his request for a hearing.  Notwithstanding, in the VA 646 Statement of Accredited Representative in Appealed Case, it was documented that the Veteran requested a Board hearing.  In a subsequent Report of General Information dated in August 2014, the appellant reported that he did not wish to have a Board hearing.  As the Veteran has not submitted any additional request for a hearing, the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(e) (2017).


FINDING OF FACT

The Veteran's residuals of a left fifth metacarpal fracture have not been manifested by symptoms approximating an amputation of the left little finger, or by involvement of other fingers or the whole hand so as to warrant a compensable or separate rating.







CONCLUSION OF LAW

The criteria for an initial compensable rating for residuals of a left fifth metacarpal fracture have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5156, 5227 and 5230 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Neither the Veteran nor his representative has raised any 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).

Applicable Law

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10 (2017).

Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period 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 based on facts found.  Id. 

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

The Veteran's residuals of a left fifth metacarpal fracture have been rated under Diagnostic Code 5227, which contemplates ankylosis of the ring or little finger. 

Under Diagnostic Code 5227, a maximum noncompensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger regardless whether the finger is on the major (dominant) or minor (non-dominant) hand.  38 C.F.R. § 4.71a, Diagnostic Code 5227.  A note accompanying Diagnostic Code 5227 provides that the Board should also consider whether evaluation as 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.  38 C.F.R. § 4.71a, Code 5227, Note. 

Where the little finger has been amputated without metacarpal resection at the proximal interphalangeal joint or proximal thereto, a 10 percent rating may be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5156.

The Board notes that for digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion.  38 C.F.R. § 4.71a (Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (1)).

Factual Background

The Veteran underwent a VA examination in September 2010.  He reported that he has a hard time lifting things and has much less strength in his hand.  He did not take any medication on a regular basis for his condition and did not use any assistive devices.  Although the Veteran was unemployed at the time of the examination, he reported that when he was working, he worked with pain in his hand.  It was noted that the Veteran was independent in his personal hygiene and the activities of daily living.  It was documented that he is left hand dominant.  

On physical examination it was noted that there were 2 small scars measuring 1.5 centimeters on the flexor aspect of his hand in relation to the distal fourth and fifth metacarpals.  The scars were not tender and were found to be relatively mobile.  He also had a prominence on the fifth metacarpal mid and distal with a slight dorsal bowing.  There was a callus palpable, but no tenderness.  The Veteran had what appeared to be mild Dupuytren's in relation to his scars.  He could make a full fist and fingertips touched his palm.  However, the grip was approximately 5-/5 as compared to the right.  The neurovascular status was otherwise intact.  The examiner noted that a September 2010 x-ray report of the left hand revealed an old healed fracture of the fifth metacarpal with some mild residual deformity.  Otherwise, the hand was normal.  The examiner diagnosed status post fracture left metacarpal with mild deformity and good healing.  

The Veteran was provided an additional VA examination in January 2016.  The examiner diagnosed ankylosis of the left ring finger.  Notwithstanding, with regard to functional loss or functional impairment, the Veteran reported having weakness in the hand, swelling, and that he cannot grip.  The examiner noted that the appellant's physical examination for the hands was unexplained.  In this regard, he noted that when gripping both hands simultaneously, the strength of grip differed on different times.  The muscle strength was also different when the maneuver was attempted using only one hand versus two hands.  The examiner indicated that he was unable to determine true range of motion of the fingers or the true muscle strength in the hands.  The examiner observed that the Veteran was wearing a wrist splint because he also has a carpal tunnel condition.  Following evaluation, the examiner noted that there was no muscle atrophy, ankylosis, or scars.  Additionally, a left hand x-ray in January 2016 showed stable chronic left fifth metacarpal fracture.  However, he indicated that did not appear to be related to the service-connected left ring finger.  The Board observes that service connection has not been awarded for a disability involving the left ring finger.  

A final VA examination was provided in September 2016 at which time history of left fifth metacarpal fracture was assessed.  It was noted that the Veteran has carpal tunnel syndrome that was diagnosed 5 years prior to the examination.  Additionally, the Veteran had numbness and tingling in the fingers tips and poor grip strength.  The examiner opined that such symptoms may be more likely related to the Veteran's carpal tunnel syndrome.  The Veteran reported flare-ups of the left hand.  He reported poor grip and an inability to lift over 5 pounds during flare-ups.  However, the Veteran did not report having any functional loss or functional impairment, including, but not limited to, repeated use over time.  

On physical examination, range of motion testing was found to be normal.  There was no gap between the pad of the thumb and the fingers or between the finger and proximale transverse crease of the hand on maximal finger flexion.  The examiner documented that there was pain on examination, but it did not result in/cause functional loss.  However, there was no evidence of pain with use of the hand.  There was evidence of localized tenderness or pain on palpitation over the wrist and left fifth metacarpal.  There was no additional functional loss or range of motion after repetitive testing.  The examiner noted that the examination was not being conducted during a flare-up and indicated that an opinion as to whether pain, weakness, fatigability, or incoordination limited functional ability with flare-ups could not be made without mere speculation.  On muscle strength testing, the Veteran had active movement against some resistance.  There was no evidence of atrophy or ankylosis.  There was also no evidence of scars.  

VA medical records, including in July 2011, reveal treatment for and complaints of pain in the left hand.


Analysis

Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for residuals of a left fifth metacarpal fracture.

In this regard, the evidence shows that the appellant's residuals of a left fifth metacarpal fracture have been manifested by pain.  There has been no finding of ankylosis of the left fifth finger.  The Veteran has been assigned a noncompensable rating for such symptoms.  See 38 C.F.R. § 4.71a, Diagnostic Code 5227.  This is the maximum rating available under Diagnostic Code 5227.  

Since the Veteran is in receipt of the maximum disability rating available under Diagnostic Code 5227, the Board has considered other potentially applicable Diagnostic Codes.

As stated above, the Note following Diagnostic Code 5227 instructs the rater to consider whether evaluation as amputation is warranted.  However, a rating for amputation of the little finger is not warranted.  To this end, the evidence does not show functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.  38 C.F.R. § 4.71a, Diagnostic Code 5156.  While pain was noted on examination, range of motion was found to be normal.  Further, neither the Veteran nor the evidence indicates that the left little finger has been amputated.  Therefore, a rating based on amputation is not warranted.  

The Note following Diagnostic Code 5227 also states that an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand due to the service-connected residuals of left little finger fracture.  At the outset, the Board observes that a noncompensable rating is the maximum rating based on limitation of motion of the ring or little finger.  See 38 C.F.R. § 4.71a, Diagnostic Code 5230.  Notwithstanding, as detailed herein, during the September 2016 VA examination, the Veteran reported pain on examination, however, range of motion for the left hand was found to be normal.  Additionally, there was no gap between the pad of the thumb and the fingers or between the finger and proximale transverse crease of the hand on maximal finger flexion.  While the Veteran reported problems with his grip and numbness, the examiner opined that such symptoms were attributable to his carpal tunnel syndrome and not to the residuals of the left fifth metacarpal fracture.  The Board finds that the September 2016 VA examiner's opinion is persuasive because she is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Moreover, her opinion was based on an objective evaluation.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus an additional evaluation is not warranted based on limitation of motion of other digits.  38 C.F.R. § 4.71a, Diagnostic Codes 5228 - 5230.

The Board observes that 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011) provide that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  However, there is no compensable minimum rating available under Diagnostic Codes 5227 or 5230.  In Sowers v. McDonald, the Court held that 38 C.F.R. § 4.59 is not an independent provision that may be applied without an underlying Diagnostic Code.  See Sowers v. McDonald, 27 Vet. App. 472 (2016).  Because Diagnostic Codes 5227 and 5230 for limitation of motion of the little finger provide for a maximum noncompensable rating, a compensable rating is not available under those diagnostic codes due to the provisions of 38 C.F.R. § 4.59.

The Board also notes that subsequent to the Veteran's most recent VA examinations, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include range of motion testing "for pain on both active and passive motion [and] weight-bearing and nonweight-bearing and if possible, with range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158, 170 (2016).  However, the Veteran is currently in receipt of the maximum rating available for limitation of motion of the left little finger under the governing rating criteria.  38 C.F.R. § 4.71a, Diagnostic Codes 5227, 5230.  Thus, a remand for a new examination under Correia would serve no useful purpose.  See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  The same line of reasoning applies to any deficiencies in the examinations as it relates to functional limitations as a result of flare-ups.  Sharp v. Shulkin, 29 Vet. App. 26, 33-34 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

The Board observes that during the September 2010 VA examination, it was noted that the Veteran had two small scars.  However, the scars were not found to be painful or unstable and did not cover an area or areas of at least 6 square inches.  See 38 C.F.R. § 4.118, Diagnostic Code 7801.  Notably, scars were not found on subsequent VA examinations.  Therefore a separate rating for scars is not warranted.

In sum, throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by his current evaluation.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim of entitlement an initial compensable rating for residuals of a left fifth metacarpal fracture is denied.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to an initial compensable rating for residuals of a left fifth metacarpal fracture is denied.


____________________________________________
David Gratz
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs