Citation Nr: 20021844 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 14-02 295 DATE: March 27, 2020 ORDER A compensable rating for right hand numbness is denied. A compensable rating for left hand numbness is denied. FINDINGS OF FACT 1. The Veteran does not have mild or more incomplete paralysis of any of the right or left upper extremity nerves affecting his hands. 2. The Veteran does not have a gap of one to two inches between his left or right thumb pads and the fingers, with the thumbs attempting to oppose the fingers. 3. The Veteran does not have a gap of one inch or more between the left or right index or long fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or, with extension limited by more than 30 degrees. 4. The Veteran does not have ankylosis or an amputation of his ring or little finger. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right hand numbness have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45. 4.59, 4.71a, 4.124a, including Diagnostic Codes 5228, 5229, 5230. 2. The criteria for a compensable rating for left hand numbness have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45. 4.59, 4.71a, 4.124a, including Diagnostic Codes 5228, 5229, 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to July 2007. He was awarded numerous decorations and medals, including the Combat Infantryman Badge. The Board thanks him for his long and honorable service to our country. The Veteran presented testimony before the undersigned in December 2015. At the time, the record was left open for 60 days for him to submit additional evidence, and he waived initial AOJ consideration of additional evidence. The undersigned remanded the appeals to the AOJ in May 2016 for further development, including for a VA examination which was conducted in June 2016 and to obtain additional VA medical records. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals for compensable ratings for his service-connected right and left hand disabilities, characterized as numbness. They are currently rated as noncompensable pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5230. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Disability of the ring and little (5th) finger is rated based on limitation of motion. Any limitation of motion of the little finger, including ankylosis, is rated as 0 percent disabling. 38 C.F.R. § 4.71a, Codes 5230 and 5227. With ankylosis, it must also be considered whether an additional evaluation is warranted for resulting limitation of motion of other digits, or for interference with overall function of the hand. See Note following Code 5227. Amputation of the little finger without resection of the metacarpal, at the proximal interphalangeal joint or proximal thereto is rated as 10 percent disabling. 38 C.F.R. § 4.71a, Code 5156. In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints with either in extension or full flexion or with rotation or angulation of a bone. Id. The thumb requires limitation of motion with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, for a compensable rating to be assigned. The index and/or long finger require limitation of motion with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; extension limited by more than 30 degrees. Diagnostic Codes 5228 and 5229. A 10 percent rating is also appropriate upon X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is appropriate upon X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5003. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For the purpose of rating disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45 (f). The provisions of 38 C.F.R. § 4.124a provide for compensable ratings for upper extremity neuropathy when there is at least mild and, in some cases, at least moderate incomplete paralysis of an upper extremity nerve or nerve group. Based on the evidence, the Board concludes that a compensable rating is not warranted for disability, including numbness, of either hand. The preponderance of the evidence including the February 2011, June 2013, and June 2016 VA examination reports indicates that the Veteran does not have a compensable degree of limitation of motion in his thumb, index, or long fingers, or, for his ring and/or little fingers, extremely unfavorable ankylosis or an amputation, and that he does not have mild or more incomplete paralysis of any nerves or nerve groups affecting his hands. The February 2011 VA examination report shows normal upper extremity muscle strength with no atrophy, spasm, or other muscle abnormalities; and that there was no ankylosis. Hand strength and dexterity were normal. There was no joint swelling, effusion, tenderness, or laxity, and no other objective joint abnormalities, including angulation, ankylosis, or amputation of one or more digits of either hand. There was no thumb disorder nor was there a gap between any finger and the proximal transverse crease of the hand on maximal flexion of the finger. The Veteran had normal coordination and cranial nerve function. His upper extremity reflexes, sensory examination findings, and motor examinations were normal. The June 2013 VA examination reports show that the Veteran had limited or painful motion only in his left and right little fingers. He was able to oppose his thumbs with a gap between the thumb pads of less than 1 inch, with pain beginning at a gap of less than 1 inch. There was no gap between any of the fingertips and the proximal transverse creases of the palms, nor was there evidence of painful motion in attempting to touch the palms with the fingertips. There was also no limitation of extension or evidence of painful motion for the index or long fingers. And the Veteran was able to perform repetitive-use testing with 3 repetitions, with no additional limitation of motion or pain on movement for any fingers post-test, except for less movement than normal and pain on movement in the little fingers. The examiner found that the Veteran had no functional loss or functional impairment of any of the fingers or thumbs. His hand grip was 5/5 bilaterally and there was no ankylosis of the thumbs or fingers. He did not have functional impairment of either upper extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. At the time of the Veteran's June 2016 VA examination, the range of motion of each of his fingers was normal according to the most probative specific range of motion data supplied. There was no evidence of pain with use of the hands, or of localized tenderness or pain on palpation of the joints or associated soft tissues. The Veteran was able to perform repetitive use testing with at least 3 repetitions of each hand without additional functional loss or range of motion after 3 repetitions. Pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over time. Hand grip strength was 5/5 bilaterally with no muscle atrophy. The Veteran had degenerative or traumatic arthritis only in his right hand, and it was not documented in multiple joints of that hand. The examiner indicated that the Veteran was without a current left hand diagnosis of disability, and that he is without a peripheral nerve condition and/or peripheral neuropathy affecting his ability to work. The examiner noted that electromyography/nerve conduction studies in 2013 were reported to be normal. While the Veteran has reported complaints, including in March and December 2015, and including to the effect that his hands set up and freeze at times, make cracking noises or popping sounds, and hurt in cold or warm weather; that he has to wring or move his hands constantly because of the pain, and that his hands get stiff or go numb during the winter time, a compensable level of impairment under the rating criteria is not shown. There have been 3 VA examinations and each of them shows no compensable degree of impairment due to hand disability. No outpatient treatment records showing a compensable degree of impairment have been submitted either. The neurological studies show that he has no nerve disability. Although the Board’s decision cannot be favorable to the Veteran, as the preponderance of the evidence is against compensable ratings, it would like to thank him for his years of honorable service. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.