Citation Nr: 20040294 Decision Date: 06/12/20 Archive Date: 06/12/20 DOCKET NO. 17-42 090 DATE: June 12, 2020 ORDER Entitlement to a compensable disability rating for the service-connected residuals of a 4th metacarpal fracture and traumatic arthritis of the right hand is denied. Entitlement to a compensable disability rating for the service-connected residuals of a 5th metacarpal fracture and traumatic arthritis of the right hand is denied. Entitlement to a 10 percent disability rating based on multiple noncompensable service-connected disabilities is denied. FINDINGS OF FACT 1. Although there is x-ray evidence of arthritis in the fourth and fifth digits of the right hand with painful motion, two or more minor joint groups are not involved. 2. The Veteran has been in receipt of at least a compensable rating during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for the service-connected residuals of a 4th metacarpal fracture and traumatic arthritis of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5230. 2. The criteria for a compensable disability rating for the service-connected residuals of a 5th metacarpal fracture and traumatic arthritis of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5230. 3. During the entire period on appeal there is no legal entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1971 to October 1974 and from June 1980 to September 1992. He also had some Army National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these issues in March 2019 requesting that the Veteran be afforded another VA examination to comply with Sharp v. Shulkin. The Board finds that VA properly followed the remand instructions and the issue is properly before the Board for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to a compensable disability rating for the service-connected residuals of a 4th metacarpal fracture and traumatic arthritis of the right hand 2. Entitlement to a compensable disability rating for the service-connected residuals of a 5th metacarpal fracture and traumatic arthritis of the right hand Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Painful motion is entitled to at least the minimum compensable rating per joint, even if there is no actual limitation of motion. Mitchell v. Shinseki, supra. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service connected right fourth and fifth finger disabilities have been rated as noncompensable under DC 5230 throughout the appeal period. Under DC 5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. DC 5230 does not provide for a compensable rating. Turning to the evidence of record, the Veteran underwent a VA examination in August 2016 at which he was diagnosed with right hand traumatic arthritis and residuals of right hand fourth and fifth metacarpal fracture. The Veteran reported residual mild to moderate pain and stiffness. The Veteran reported that he has weekly mild to moderate pain and stiffness flare ups. He also reported functional impairment where he limits lifting, carrying, and push-ups. Upon examination, range of motion (ROM) in the bilateral fingers were normal except for the MCP joints in the fourth and fifth finger of the right hand. For both the MCP was limited to 75 degrees. There was no pain noted on the exam and thus the ROM itself did not contribute to functional loss. There was no gap between the pad of the thumb and the fingers nor a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was evidence of mild localized tenderness or pain on palpation of the TTP of the fourth and fifth metacarpal. The Veteran was able to perform repetitive use testing for both hands and there was no additional functional loss or ROM after the repetitions. The Veteran was also examined immediately after repetitive use over time and for either hand he did ot have pain, weakness, fatigability, or incoordination that significantly limited his functional ability. Because the exam was not being conducted during a flare up, the examiner explained that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the functional ability with flare ups. Muscle strength testing came out normal and there was no muscle atrophy for either hand. No ankylosis was indicated for either hand. The Veteran reported wearing a brace occasionally. According to the imaging studies, traumatic arthritis was not documented in multiple joints of the same hand. The Veteran was afforded another VA examination in May 2017 where he reported that his functional impairment consists of right-hand pain with push-ups or with firm handshakes. Upon examination, initial ROM measurements were all normal for both hands. There was no gap between the pad of the thumb and the fingers nor was there a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted on the exam. There was mild tenderness to palpation of the fourth and fifth metacarpals of the right hand. The Veteran was able to perform repetitive use testing with at least repetitions and there was no additional functional loss or ROM. The examiner explained that he was unable to say without mere speculation on whether pain, weakness, fatigability, or incoordination significantly limited functional ability of either hand with repeated use over a period of time since the Veteran was not being examined under those conditions. The Veteran had normal muscle strength, no muscle atrophy, nor any ankylosis. In the August 2017 Form 9, the Veteran reported that the pain and swelling has increased in his right hand, especially when he tries to exercise. The Veteran was afforded another VA examination in November 2019 where X-ray results indicated evidence of the old fracture, but there was no arthritis. The Veteran reported that the pain in his right hand has gotten worse over the years, especially if he grips something heavily. He reported not having flare ups. The functional impairment that the Veteran experiences includes difficulty gripping a five-gallon bucket of paint with just the right hand, doing more than 10 push-ups, and doing more than three pull ups. Upon examination, initial ROM measurements came out all normal except that flexion was limited to 80 degrees for the fourth and the fifth right fingers. There was no gap between the pad of the thumb and fingers nor was there a gap between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted on the exam but there was mild localized tenderness or pain on palpation at the base of the fifth metacarpal. The Veteran was able to perform repetitive use testing and did not suffer from additional functional loss or ROM. While the Veteran was not being examined immediately after repetitive use over time, the examiner explained that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The ROM measurements are all normal except for flexion for the fourth and fifth finger. Flexion was limited to 60 degrees for the fourth finger and to 55 degrees for the fifth finger. Pain, fatigue, and weakness caused the functional loss. The Veteran had normal muscle strength, no muscle atrophy, and no ankylosis. The X-ray results show that at the base of the fifth metacarpal there is excess callous formation without angulation or rotation of the metacarpal shaft, but that there was no arthritis in the right hand. There are no private or VA medical treatment records that discuss the functional impact of the right hand. At the outset, the Board notes that the Veteran has x-ray evidence of callous formation at the base of the fifth metacarpal, but that there is no evidence of arthritis in the right hand. His lay statements focus on limitations of his right hand, not specifically the involvement or effect of the service-connected fourth and fifth fingers alone. Under DC 5230, a noncompensable rating is the maximum rating for limitation of motion. The Board acknowledges the Veteran’s reported symptoms including pain, difficulty carrying and lifting heavy loads, and problems gripping and grasping objects; however, under DC 5230, any level of limitation of motion of the fourth and fifth finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the fourth and fifth fingers). 38 C.F.R. § 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating. Instead, 38 C.F.R. § 4.59 employs conditional language that must be read in conjunction with the appropriate DC to be understood. See Sowers v. McDonald, supra. As noted above, under the criteria of DC 5230, any level of limitation of motion, even if accompanied by associated pain and functional loss, results in a noncompensable rating. Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted under DC 5230. Unlike other diagnostic codes, 38 C.F.R. § 4.71a, DC 5230, does not instruct that other DCs should be considered. The inclusion of criteria in one DC indicates that the Secretary’s exclusion of that criteria elsewhere was purposeful. Some DCs include instructions for considering other DCs. DC 5227, addressing ankylosis of the ring or little finger, like DC 5230, lists only a noncompensable rating for ankylosis -- favorable or unfavorable. But DC 5227 also includes a note allowing for a compensable rating when an evaluation as amputation is warranted or where impairment of the ring finger limits the motion of other digits or the hand as a whole. The other individual-finger-ankylosis DCs also include this note. DCs 5224 (thumb), 5225 (index finger), 5226 (long finger). Both DC 5002 and 5003 specifically provide that individual joints may be rated for limitation of motion under the appropriate DC for the specific joint or joints involved. Many of the intermediate-level criteria for prosthetic implants identify specific DCs that may be used for rating by analogy. DC 5230 does not include a note allowing consideration under other DCs. Thus, VA clearly expressed its determination that DC 5230 be the only DC applicable to a right ring and little finger disability based on limitation of motion and that limitation of motion of that ring finger does not warrant a compensable disability rating. See Sowers v. McDonald, supra. Moreover, there is already some inconsistency regarding whether the Veteran has arthritis in his right hand or not. Even if the Board were to consider that the Veteran has arthritis in the fourth and fifth fingers, a rating of 10 percent under DC 5003 is also not warranted. DC 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. The code provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., DC 5228 to DC 5230), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, DC 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion. Here, the Veteran’s right fourth and fifth metacarpals are not major joints and the evidence does not demonstrate that either service-connected disability affects two or more minor joint groups. The August 2016 VA examination reported that traumatic arthritis was not documented in multiple joints of the same hand. Therefore, the weight of the evidence is against a finding that the service-connected right fourth and fifth finger disabilities warrant consideration of ratings under DC 5003. As such, a minimum 10 percent disability rating under DC 5003 for limitation of motion is not warranted for either disability. Based on the foregoing, compensable ratings for residuals of the right fourth and fifth metacarpal injury are not warranted. (Continued on the next page)   3. Entitlement to a 10 percent disability rating based on multiple noncompensable service-connected disabilities The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable rating for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532 (1993). In this regard, the Veteran has been in receipt of a 10 percent disability rating since April 7, 2016, which is the effective dates for all of the Veteran’s service-connected disabilities. Therefore, the Veteran’s claim for compensation under 38 C.F.R. § 3.324 is rendered moot. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate Counsel 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.