Citation Nr: 1815688 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-22 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 20 percent for right index and middle finger (P.O. residuals) with nerve involvement. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Wade, Associate Counsel INTRODUCTION The Veteran served in the United States Army from May 1975 to May 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDING OF FACT The Veteran does not have ankylosis in both his right index and middle finger, does not have amputations of those fingers, and does not have loss of use of those fingers. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for right index and middle finger (P.O. residuals) with nerve involvement have not been met for the any part of the rating period on appeal. 38 U.S.C §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5223 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify regarding right index and middle finger disability has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations in February 2013, May 2013, and September 2014, which are adequate. The Board finds that the VA examinations and opinions described the right index and middle finger disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. Diagnostic Codes 5216 to 5227 provide for ratings based on various types of ankylosis and limited motion of individual or multiple digits, and limitation of motion of the individual digits of the hand are rated under Diagnostic Codes 5228 to 5230. The five digits of the hand consist of the thumb and four fingers: the index (first) finger, middle (second) finger, ring (third) finger, and little (fourth) finger. 38 C.F.R. § 4.71a. For the index, middle, 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. 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 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, Diagnostic Codes 5216 to 5230, Preliminary note (1). 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230, Preliminary note (2). If there is limitation of motion of two or more digits, each digit will be evaluated separately, and the evaluations will be combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230, Preliminary note (5). The Veteran's right hand disability was assigned a 20 percent rating as of the grant of service connection in January 1979 pursuant to Diagnostic Code 5223. 38 C.F.R. §4.71a, DC 5223. Diagnostic Code 5223 addresses favorable ankylosis of two digits of one hand. When the index and middle fingers are involved, a 20 percent disability rating is assigned. A 30 percent evaluation is assigned when there is favorable ankylosis of the thumb and any other finger. 38 C.F.R. § 4.71a. Analysis The Veteran filed his claim for increase in September 2012. See September 2012 Statement in Support of Claim. He was service connected for an "old crush injury of index and middle finger" in 1978. See September 2014 DBQ Exam. The Veteran asserts that he is entitled to a higher rating for his service-connected right index and middle finger (P.O. residuals) with nerve involvement which is currently evaluated as 20 percent disabling. See September 2012 Statement in Support of Claim. He contends that he currently has arthritis in his hand and the cold weather causes "gross pain" in his hand. Id. Moreover, he contends that he doesn't have feeling in three of his fingers and his middle finger is bent "even more now" and will not straighten out. See May 2014 VA Form 9. From May 1986 to August 2009 the Veteran worked as a logger. This position required him to carry 25-30 pound chains saws; He moved from tree to tree, pushing and prying on logs all day. See July 2014 SSA Medical Treatment Records. The Veteran underwent a VA examination in February 2013. During his February 2013 exam the Veteran reported that since his last 2005 examination his right hand pain had doubled, and he had poor circulation which caused his fingers to turn white. His fingers would hurt when he came from outside, and this issue had gradually worsened over the past three years. The examiner noted that there was limitation of motion or evidence of painful motion in the Veteran's right long finger. Moreover, there was evidence of a gap between the Veteran's fingertips and proximal crease or painful motion in attempting to touch his right index finger to his palm. Painful motion began at a gap of less than 1 inch (2.5 cm) in the Veteran's right index finger, ring finger, and little finger. The Veteran's right long finger was noted as having an extension limited by more than 30 degrees. Painful motion began at an extension of more than 30 degrees. The Veteran's finger flexion was limited by less than one inch on his right index finger and more than one inch on his right long finger. The Veteran was noted to have functional loss with less movement than normal in his right long and index finger. Additionally, the Veteran was noted to have proximal interphalangeal joint ankylosis in extension on his right long finger. A gap of two inches or less between his right long fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible was noted. It was noted he wore a brace on his right hand when his pain worsened. However, upon entering orders for the hand x-rays, the Veteran told the VA examiner that the x-rays were "not going to help out now anyways," and then exited the exam room and building. This ended his exam. The Veteran is service connected for an injury, right index and middle fingers with nerve involvement. However, his nerve condition was not mentioned in the February 2013 examination, so an examination was ordered. During his May 2013 examination, the Veteran denied any diagnosis of a peripheral nerve condition in his hand. Moreover there were no symptoms attributable to any peripheral nerve conditions. The examiner opined that there was "no discernable peripheral neuropathy of either hand based on the Veteran's given history and physical exam." The Veteran had an additional DBQ Exam for his right index and middle finger condition in September 2014. The Veteran did not report any flair ups. The examiner noted that the Veteran had limitation of motion or evidence of painful motion in his right thumb, middle finger, and little finger. There was limitation of extension, limited by no more than 30 degrees, on the Veteran's right long finger. The examiner noted there was no additional functional loss or functional impairment in any of the Veteran's fingers or thumb. Moreover, the Veteran was noted to not have any ankylosis of the thumb or fingers. Unlike the prior examination, x-rays of the Veteran's hand were available for this examination. The VA examiner determined that the Veteran had degenerative or traumatic arthritis of the right hand. The x-ray showed "stable flexion deformity at the third DIP joint with osteroarthritis changes at the DIP joints and less extent the PIP joints of the right hand." See Diagnostic Testing Section of September 2014 Hand and Fingers DBQ Exam. The examiner opined that the Veteran's hand, thumb, and finger conditions did not impact the Veteran's ability to work. The examiner concluded that there were no objective medical facts of record to substantiate an increase of [the] Veteran's service connection for his "right hand condition." In September 2014, the Veteran was afforded another exam for peripheral neuropathy. However, the examiner also opined that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. Moreover, there were no symptoms attributable to any peripheral nerve conditions. After a review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a disability rating in excess of 20 percent for the right index and middle finger disability for the entire increased rating period on appeal. 38 C.F.R. § 4.71a. Namely, ankylosis has not been demonstrated in both service connected fingers. See September 2014 VA Examination. Moreover, even if ankylosis had been shown in both service-connected fingers, the Veteran is not service connected for his thumb. As such, a higher rating is not available under Diagnostic Code 5223. The Board has considered whether any other diagnostic code would allow for a disability rating in excess of 20 percent for the right index and middle finger disability. However, favorable ankylosis of three, four, or five digits of the right hand is not demonstrated by the evidence (DCs 5220 - 5222) (again, the Veteran is only service connected for two digits), nor is there unfavorable ankylosis of any of the fingers (DCs 5216 - 5219). 38 C.F.R. § 4.71a. As noted above, the Veteran's current right index and middle finger disability does not show unfavorable or favorable ankyloses of both fingers. Additionally, consideration has been made as to increase the Veteran by individually rating his two fingers under Diagnostic Code 5229. However, that would not result in an increase or a more favorable position for the Veteran. For these reasons, the Board finds that, for the entire rating period on appeal, the weight of the evidence is against a rating in excess of 20 percent for the right index and middle finger disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. ORDER Entitlement to a rating in excess of 20 percent for a right index and middle finger (P.O. residuals) with nerve involvement is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs