Citation Nr: 20032740 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 14-24 581A DATE: May 11, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to January 24, 2019, and in excess of 20 percent as of January 24, 2019, for a right ankle disability is denied. Entitlement to an initial rating in excess of 10 percent prior to January 24, 2019, and in excess of 20 percent as of January 24, 2019, for a left ankle disability is denied. Entitlement to a 10 percent rating, but not higher, prior to January 24, 2019, for right hand, thumb, index finger, and long finger arthritis is granted. Entitlement to a rating in excess of 10 percent as of January 24, 2019, for right hand and thumb arthritis is denied. Entitlement to a rating in excess of 10 percent as of January 24, 2019, for right index finger and long finger arthritis is denied. FINDINGS OF FACT 1. Prior to January 24, 2019, no more than moderate limitation of motion of the right ankle was shown. 2. As of January 24, 2019, the Veteran’s right ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle, and ankylosis is not shown. 3. Prior to January 24, 2019, no more than moderate limitation of motion of the left ankle was shown. 4. As of January 24, 2019, the Veteran’s left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle, and ankylosis is not shown. 5. Prior to January 24, 2019, arthritis of the right hand and fingers resulted in painful motion resulting in limitation of motion of a group of minor joints. 6. The Veteran’s right hand and fingers disability is manifested by painful limitation of motion but is not manifested by a gap between the thumb pad and the fingers or the fingertips and the transverse crease of the palm. 7. The Veteran’s right hand and fingers disability has not been manifested by unfavorable ankylosis of any fingers; and functioning has not been diminished such that amputation with prosthesis of any finger or the hand that would equally serve the Veteran. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 24, 2019, and in excess of 20 percent thereafter for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5271. 2. The criteria for an initial rating in excess of 10 percent prior to January 24, 2019, and in excess of 20 percent thereafter for a left ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5271. 3. Prior to January 24, 2019, the right hand and fingers disability warranted a 10 percent rating. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5003, 5229, 5229. 4. As of January 24, 2019, the criteria for a rating in excess of 10 percent for a right thumb and hand disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5003, 5228, 5229. 5. As of January 24, 2019, the criteria for a rating in excess of 10 percent for a right finger arthritis disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5003, 5228, 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1991 to February 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Due to the Veteran’s place of residence, the RO in Atlanta, Georgia, performed further development. In September 2017, the Veteran testified before the undersigned Veterans Law Judge by videoconference. A transcript of that hearing is of record. 1. Entitlement to an initial rating in excess of 10 percent for a right ankle disability 2. Entitlement to an initial rating in excess of 10 percent for a left ankle disability The Veteran asserts that she is entitled to a higher rating because her symptoms are worse than what is contemplated by the currently assigned rating. The Veteran was assigned a 10 percent rating effective March 1, 2012 under Diagnostic Code 5003. The Veteran’s rating was increased to 20 percent under Diagnostic Code 5271 effective January 24, 2019. A 20 percent rating is the highest possible rating under Diagnostic Code 5271. The Veteran also contends that she is entitled to a 20 percent rating prior to January 24, 2019. In an August 2012 rating decision, the Veteran was assigned a 10 percent rating for the left ankle and a 10 percent rating for the right ankle based on x-ray evidence of arthritis along with noncompensable limitation of motion of the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 arthritis (i.e. degenerative joint disease) established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When the 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 such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. A rating for arthritis cannot be combined with a rating for limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran’s bilateral ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. When rating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Even when the factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited, but a separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Rating the same disability under different diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). In an October 2011 VA examination, the examiner diagnosed degenerative arthritis of the right and left ankles. The right ankle and left ankle showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement or ankylosis. Range of motion of both ankles measured 145 degrees flexion with no additional degree of limitation following repetitive use testing. The joint function of both ankles was not additionally limited by pain, fatigue, weakness, lack of endurance or in-coordination after repetitive use. In a January 2019 VA examination, the examiner diagnosed degenerative arthritis in both ankles. The Veteran reported that the ankle condition had worsened since the last VA examination. It was reported that pain was worse in the right ankle than the left ankle. The Veteran stated that she had intermittent, nagging bilateral ankle pain that was a six on a scale of one to ten with ten being the worst. The Veteran did not report any flare-ups. The Veteran stated she experienced functional loss or impairment, but that the ankle condition did not prevent her from doing any activities. There was no pain with weight-bearing, no muscle atrophy, no ankylosis, no instability and no evidence of localized tenderness or pain on palpation. Examination revealed painful limited range of motion 18/20 degrees dorsiflexion and 39/45 degrees plantar flexion, limited dorsiflexion to 9 degrees and 19.5 degrees with plantar flexion on repetitive motion and limited range of motion on flare ups to 0 degrees on plantar flexion and dorsiflexion. Both ankles exhibited no pain on non weight-bearing and no pain on passive range of motion testing. In a January 2019 VA medical opinion, the examiner concluded that it was unlikely the bilateral ankle degenerative changes would affect the Veteran’s ordinary activities. In support of that opinion, the examiner highlighted statements from the Veteran during examination that the claimed disabilities did not prevent her from doing any activity. The examiner further opined that it was at least as likely as not that the Veteran has any additional loss of function due to painful motion, excess motion, weakened motion, in-coordination, fatigability or with a flare up of the right ankle because the Veteran had decreased range of motion with pain in the right ankle. However, it was less likely than not that the Veteran has additional loss of function of the left ankle due to painful motion, excess motion, weakened motion, in-coordination, fatigability or with a flare of the left ankle because the Veteran denied flare-ups and experienced improvement with repetitive motion testing of her ankles. In a November 2019 VA medical opinion, the examiner noted that during flare ups the Veteran was able to walk up to 40 feet, is unable to drive, and did not leave home. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right ankle disability or a left ankle disability prior to January 24, 2019. As of January 24, 2019, the Veteran was assigned the highest possible rating under Diagnostic Code 5271. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement. The Board notes that the complaints of limited motion during flare-ups, inability to drive, and walk long distances were all reported at the January 2019 VA examination. However, the evidence of record does not show moderate limitation of motion prior to January 2019. Even considering pain on motion, the evidence does not show any limitation of motion that more nearly approximated moderate limitation of motion of either ankle. As of January 2019, the Veteran was assigned the highest possible rating under the applicable diagnostic code. There is no evidence of marked limitation in the time period prior to January 24, 2019. There has been no evidence of ankylosis at any time under consideration. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. 38 C.F.R. § 4.71a. Accordingly, the Board finds that the preponderance of the evidence is against the appeal for a rating in excess of 10 percent prior to January 24, 2019, and in excess of 20 percent as of January 24, 2019, for a right ankle or a left ankle disability. Because the preponderance of the evidence is against the assignment of any higher ratings, the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 0 percent for a right hand and fingers disability prior to January 24, 2019, and in excess of 10 percent for a right hand and thumb disability and 10 percent for a right fingers disability as of January 24, 2019 The Veteran asserts that she is entitled to a higher rating for her right-hand disability because the symptoms are worse than what is contemplated by the currently assigned ratings. The Veteran was assigned a 0 percent rating effective March 1, 2012, for a right hand, thumb, and fingers disability. A November 2019 rating decision assigned a 10 percent rating for right hand and thumb arthritis and a 10 percent rating for right finger arthritis, effective January 24, 2019. The Veteran’s service-connected right hand disability is rated at 10 percent for a right thumb disability, and 10 percent for the right finger disabilities based on x ray evidence of arthritis along with any limitation of motion of the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 arthritis (i.e. degenerative joint disease) established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the 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 such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Ratings for arthritis cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremity are considered a group of minor joints. 38 C.F.R. § 4.45(f). The Diagnostic Code that corresponds with the service-connected hand disabilities are found in 38 C.F.R. § 4.71a, Diagnostic Code 5228 and 5229. Under Diagnostic Code 5228, a 0 percent rating is warranted for limitation of motion of the major thumb with a gap of less than 1 inch between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted under Diagnostic Code 5228 for limitation of motion of the major thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A maximum 20 percent rating under Diagnostic Code 5228 is warranted for limitation of motion of the major thumb with a gap of more than two inches between the thumb pad and the ringers, with the thumb attempting to oppose the fingers. In determining disability ratings, Diagnostic Code 5228 makes no differentiation between the major and minor hands. Diagnostic Code 5229 sets forth the rating criteria for limitation of motion of the index and long finger. Under Diagnostic Code 5229, a 0 percent rating is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum 10 percent rating is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. In an October 2011 VA examination, the Veteran reported carpal tunnel syndrome. The Veteran reported tingling, numbness and weakness of all fingers, with a severity level of seven. The Veteran stated that she did not experience any overall functional impairment from a right hand disability. The Veteran’s right hand was her dominant hand. Examination did not find a decrease in strength in regard to pulling, pushing, and twisting. In regard to dexterity, there was no decrease in twisting, probing, writing, touching and expression. There were no deformities of the digits. In a January 2019 VA examination, the Veteran reported intermittent sharp pain that she rated as a five on a scale of one to ten. She denied flare-ups of the right hand. The Veteran described functional loss or functional impairment that limited her ability to type to 15 minutes. Right hand range of motion was normal. There was no gap between the pad of the thumb and the fingers. There also was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. Pain noted on finger flexion that did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Board finds that the evidence supports the assignment of a 10 percent rating for a right hand, thumb and fingers disability prior to January 24, 2019. The Veteran complained of pain in the hand and fingers which caused functional limitation. That credible assertion shows that the pain resulted in some noncompensable level of limitation of motion. Therefore, as the hand and fingers became painful on use, the minimum compensable rating of 10 percent is warranted pursuant to Diagnostic Code 5003 and 38 C.F.R. § 4.59. However, the preponderance of the evidence is against the assignment of any higher rating, as limitation of finger, thumb, or hand motion sufficient to warrant a compensable rating was not shown. A rating based on limitation of motion would need to exceed 10 percent to warrant any higher rating as the limitation of motion rating cannot be combined with a rating based on arthritis. The evidence also does not show ankylosis of any fingers or joints of the hand, amputation of any fingers or the hand, or loss of use of the hand, thumb, or any fingers such that the Veteran would be equally well served by amputation with prosthesis. As of January 24, 2019, the Veteran did not exhibit a gap between the thumb gap and the fingers, or between the fingertips and the proximal transverse crease of the palm. The Veteran also displayed a normal range of motion on examination but reported pain with motion. Therefore, the Veteran was assigned a 10 percent rating for the index and long finger and 10 percent for the hand and thumb. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional pain and weakened movement. However, the evidence of record does not show a painful motion prior to January 2019. At the time of the October 2011 examination, the Veteran reported tingling, numbness, and weakness, but did not report painful motion or functional impairment. As of January 24, 2019, the evidence does not show ankylosis of any fingers or joints of the hand, amputation of any fingers or the hand, or loss of use of the hand, thumb, or any fingers such that the Veteran would be equally well served by amputation with prosthesis. Accordingly, the Board finds that the evidence supports the assignment of a 10 percent rating for arthritis of the right hand, thumb, and fingers pursuant to Diagnostic Code 5003 prior to January 24, 2019. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to January 24, 2019. The Board further finds that the preponderance of the rating is against the assignment of ratings in excess of 10 percent for the right hand and thumb disability and 10 percent for the right fingers disability as of January 24, 2019. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.