Citation Nr: 20006040 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 14-29 391 DATE: January 24, 2020 ORDER Entitlement to an evaluation in excess of 0 percent for service-connected fracture, right 4th and 5th metacarpals prior to November 3, 2014 is denied. Entitlement to an evaluation of 10 percent disabling, but not greater, for service-connected fracture, right 4th and 5th metacarpals effective November 3, 2014 is granted. FINDINGS OF FACT 1. For the period of June 16, 2010, to November 3, 2014, the Veteran's service-connected fracture, right 4th and 5th metacarpals was manifested by chronic pain managed with medication, which caused no functional loss. 2. For the period of November 3, 2014 to the present, the Veteran's service-connected fracture, right 4th and 5th metacarpals has been manifested by functional loss due to pain, limited motion, weakness, and fatigability.   CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 0 percent for service-connected fracture, right 4th and 5th metacarpals prior to November 3, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5223. 2. The criteria for an evaluation of 10 percent disabling, but not greater, for service-connected fracture, right 4th and 5th metacarpals effective November 3, 2014 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5223. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a September 2016 video conference hearing. A transcript of that proceeding is associated with the claims file. During that September 2016 hearing, the Veteran reported receiving treatment by private doctors as well as additional treatment not part of the existing claim file. Therefore, in April 2018, the Board remanded this matter back to the Agency of Original Jurisdiction (AOJ) for further development to meet the duty to assist in obtaining the additional treatment records and, after completion, order new medical examinations and readjudicate the Veteran’s claim. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim for entitlement to service connection for a low back condition was granted on remand, so is no longer before the Board. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 further 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). 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Id. Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. As for weakness, a little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007).   Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595(1991). 1. Entitlement to an evaluation in excess of 0 percent for service-connected fracture, right 4th and 5th metacarpals prior to November 3, 2014 In an October 2010 rating decision, the RO granted service connection for fracture, right 4th and 5th metacarpals and assigned a noncompensable evaluation, effective June 16, 2010, under Diagnostic Code 5223. Diagnostic Code (DC) 5223 reflects that the Veteran’s fracture, right 4th and 5th metacarpals, disability rating is based on ankylosis of the digits. Under DC 5223, a compensable rating is not warranted absent favorable ankylosis of two digits of one hand. See 38 C.F.R. § 4.71a (Schedule of Ratings). The Board has reviewed all relevant post-service medical records, as well as the Veteran's statements, which primarily document complaints of pain. At the September 2010 VA examination, the Veteran’s range of motion was noted to be normal with no mention of pain. The examiner noted there was a slight rotation of the small finger under the ring finger and a slight depression of the fourth metacarpal, but neither interfered with the function of the Veteran’s hand. It was noted the Veteran held a full-time job and had not lost any work time due to his claimed disability in the last 12 months and that his condition had no significant effects on his usual occupation or on his usual daily activities. In an August 2011 notice of disagreement (NOD), the Veteran reported that as his dominant hand, his condition severely impeded his ability to maintain suitable employment.   The Board acknowledges that the Veteran would be competent to report knee instability as this is within the realm of his personal perception. See Layno, supra. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of pain or functional loss the Veteran has experienced during the appellate period. See, e.g., English v. Wilkie, 30 Vet. App. 347 (2018) (suggesting that lay evidence of knee instability is generally competent). However, an assertion by the Veteran that he is severely impeded by his disability does not necessarily reflect that his fracture, right 4th and 5th metacarpals disability has manifested in ankylosis to a degree which warrants a separate rating. The Veteran never reported any symptom of ankylosis to the examiner at the September 2010 VA examination or in any other lay statements or evidence of record. He also has not reported any functional impairment due to his service-connected fracture, right 4th and 5th metacarpals disability. To the contrary, the evidence of record shows several notes in 2012 indicating the Veteran has sustained work. In May 2012 VA primary care nursing note (noting Veteran started new job out of town and was not able to come earlier for hand and lower back x-ray results); July 2012 VA primary care note (noting Veteran had not gone to work that day due to [non-service connected] abdominal and gastrointestinal symptoms); November 2012 VA nursing note (noting Veteran requested medical excuse for recent work absence because he was not feeling well due to [non-service connected] symptoms, such as dry cough); and in December 2012 VA surgery telephone note (noting Veteran’s sister stated that Veteran was working at that time). As such, the Board ultimately finds that the preponderance of the evidence of record, lay or medical, simply does not demonstrate that his service-connected fracture, right 4th and 5th metacarpals disability manifested with ankylosis or, in the alternative, functional impairment that is at least mild in severity prior to November 3, 2014 and an evaluation for a rating in excess of 0 percent is not warranted.   2. Entitlement to an evaluation of 10 percent disabling, but not greater, for service-connected fracture, right 4th and 5th metacarpals effective November 3, 2014 During his September 2016 hearing, the Veteran reported the severity of his pain and functional loss as residuals from his service-connected fracture, right 4th and 5th metacarpals had increased. He reported that he had a flare up “at least like once a week,” “actually dropped tools,” and since he wore a supportive brace for his hand now, that he would “go on to a job where they see that I have the brace on and they're like, do you have a prior injury? And they'll actually let me go because of it.” On November 3, 2014, the Veteran was seen at McAllen VA where he reported that he had started a new job and was experiencing increasing pain which worsened when carrying objects; he also stated his hand was stiff at times. This was markedly different to his prior medical records in the sense that prior to that, although the Veteran had a history of pain, it had been managed by medication, with no interference with his work. In June 2015, the Veteran was diagnosed with a right wrist, triangular fibrocartilage complex (TFCC) tear. He was subsequently scheduled for surgery in November 2015 but was unable to get VA approval for a qualified surgeon; he was sent for a second opinion instead. A February 2016 VA assessment of MRI lead to an adjusted diagnosis to a tear of the triangular fibrocartilage of wrist joint. The Veteran reported pain to the right hand was on and off, but became constant, got worse for 1 year. He also stated the brace and cortisone shots were not working. At a September 2016 VA walk-in visit, the Veteran complained of high pain in his right hand (constant in 7/10 scale in severity). He was there for a second opinion after physical therapy did not improve his condition at all. His diagnosis was persisting pain triangular fibrocartilage complex (TFCC) tear, right wrist. In May 2019, the Veteran underwent a VA examination to assess his service-connected fracture, right 4th and 5th metacarpals. The examiner gave an updated diagnosis of post fracture of the right fourth and fifth metacarpals with residual tendinitis. The Veteran reported functional loss, stating he was unable to hold objects well and dropped things. He also reported functional impairment of the right hand with repeated use. Although the Veteran had normal range of motion, pain was noted on examination and was found to cause functional loss with finger flexion, finger extension, and opposition with thumb range of motion exercises. The examiner also noted evidence of pain with the use of the hand, and objective evidence of localized tenderness or pain on palpation of the right ring and little fingers with mild severity. The examiner noted the relationship of this tenderness to the Veteran’s condition was direct. Additionally, there was an objective finding of an additional functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination after repeated use. No gap was noted between the pad of the thumb and the fingers, or between the finger and proximal transverse crease of the hand on maximal finger flexion. Upon a review of the record, the examiner opined that “for the VA established diagnosis of fracture of the right fourth and fifth metacarpals the diagnosis is changed and it is a progression of the previous diagnosis. Claimants fractures have healed over time but has residual tendinitis.” While the evidence does not support a compensable rating under the relevant diagnostic code identified above, the Veteran has credibly reported that he experiences pain on motion in his right hand due to his service-connected disability. Further, the May 2019 VA examinations document pain with finger flexion, finger extension, and opposition with thumb range of motion exercises and with the use of the hand, all causing functional loss. These are all factors to be considered under 38 C.F.R. §§ 4.40 and 4.45. Pain in a particular joint may only result in functional loss if it limits ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” See 38 C.F.R. § 4.40. Here, there is objective evidence of functional loss after repeated use and reduced muscle strength provided by the VA examination. There is also direct testimony from the Veteran stating he has dropped work tools (functional impairment) and is unable to maintain employment. When considered together, all of these factors warrant a compensable rating of 10 percent. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); See also Deluca, supra. The rating of 10 percent fully contemplates the Veteran’s disability picture and symptoms, and a rating higher than 10 percent is not warranted. Given the record shows the Veteran first established evidence of functional loss due to pain from his fracture, right 4th and 5th metacarpals disability, on November 3, 2014, the Board finds it proper to grant the rating evaluation with this effective date. While the Board will not disturb the Veteran’s current diagnostic code, the evidence proves he is entitled to a 10 percent disability rating, but no higher, for functional loss due to pain, limited motion, weakness, and fatigability in his service-connected fracture, right 4th and 5th metacarpals, as comparable to the impairment that would result from ankylosis. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.