Citation Nr: 20052954 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-21 243 DATE: August 10, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the right fourth metacarpal is denied. FINDING OF FACT The Veteran’s residuals of a fracture of the right fourth metacarpal do not most closely approximate favorable ankylosis of the index and ring finger. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for residuals of a fracture of the right fourth metacarpal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003- 5223. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to June 1972, February 1974 to February 1976, August 1983 to August 1985, and July 1991 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, the Veteran requested a Board hearing before a Veterans Law Judge. However, he failed to report for the Board videoconference hearing scheduled for him in March 2019. The Board did not receive a timely request for postponement, and the Veteran has not indicated that he wished to reschedule the hearing. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704 (d). This matter was previously before the Board in May 2019 but remanded for further development. The Board finds that there has been substantial compliance with its May 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the right fourth metacarpal In November 2014, the Veteran sought an increased rating for his residuals of a fracture of the right fourth metacarpal which are currently rated at 10 percent under 38 C.F.R. § 4.71a, DC 5003-5223. Thus, the period on appeal begins on November 7, 2013, one year prior to receipt of the Veteran’s claim for an increased rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s residuals of right fourth finger fracture is currently rated under Diagnostic Codes 5003-5223. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5223 provides that a 10 percent rating is warranted for favorable ankylosis of the long and ring fingers; long and little fingers; or ring and little fingers. A 20 percent rating is warranted for favorable ankylosis of the index and long fingers; index and ring fingers; or index and little fingers. A 30 percent rating is warranted for favorable ankylosis of the thumb and any finger of the major or dominant hand. For the index, long, 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. A November 2013 treatment record notes tenderness to palpation over the fourth metacarpal of the right hand. A December 2013 treatment record notes the Veteran reports a lot of pain over the ring finger, difficulty moving it in and out with sharp pain. The Veteran also reported his grip is weakening. In January 2014, the Veteran reported joint pain and muscle pain; his upper extremities were noted as normal to inspection and palpation. An April 2014 VA treatment record notes trigger finger. An August 2014 treatment record notes his upper extremities are normal to inspection and palpation. The Veteran underwent a VA examination in June 2015. The Veteran reported constant pain over the third and fourth metacarpals and in the palm of his hand. The Veteran indicated the pain is worse with use. He reported difficulty closing all the fingers firmly with the fourth finger rarely locking up. The Veteran reported flare-ups where he takes more Aleve. The examiner noted that the difficulty is actually with the entire hand due to arthritis. The examiner noted abnormal range of motion, a gap between the finger and proximal transverse crease of the hand on maximal finger flexion, and pain with finger flexion and use of the hand. The examiner noted objective evidence of pain over the fourth metacarpal joint. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion. The examiner noted no right hand ankylosis. In the May 2019 remand, the Board noted that the June 2015 examiner indicated he was unable to determine if pain, weakness, fatigability or incoordination significantly limits functional ability during flare-ups without mere speculation without sufficient objective evidence-based medical facts or direct observations. The Board directed that a new examination be conducted and an examiner to discuss the degree of functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In compliance with the Board’s May 2019 remand directives, the Veteran underwent another VA examination in November 2019. Regarding functional loss, the examiner noted the Veteran reported frequently dropping items, difficulty using tools that cause vibration, and difficulty tolerating activities requiring frequent gripping and grasping. The examiner noted that the Veteran denied flare-ups, but did report a waxing and waning of symptoms. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. On objective examination, the examiner noted normal range of motion of the right hand, including the right fourth metacarpal. Pain with use of the hand and objective evidence of localized tenderness or pain on palpation of the joint was noted, but the examiner indicated it did not cause functional loss. The examiner noted there was additional functional loss or range of motion with repetitive use testing due to pain. Metacarpophalangeal joint (MCP) extension was limited to 5 degrees; the proximal interphalangeal joint (PIP) and distal interphalangeal joint (DIP) extension remained normal. MCP flexion was further limited to 85 degrees; PIP and DIP flexion both remained normal. The examiner noted a history of severe ulnar neuropathy of the right arm that is causing significant atrophy of the ulnar muscles of the right hand, which is likely not due to or related to the fourth or fifth metacarpal fracture. The examiner indicated that the Veteran has muscle atrophy; however, it is due to the right ulnar and median neuropathies. The examiner reported there was no right hand ankylosis. Finally, the examiner indicated that the degenerative changes of the distal interphalangeal joint of all four fingers of the right hand are not due to the history of the fourth metacarpal fracture but is most likely due to his general condition of arthritis and age-related changes. The fourth metacarpal fracture is not causing or contributing to progression of the above described arthritis. After a review of the evidentiary record, the Board finds that the preponderance of the evidence is against finding entitlement to a rating in excess of 10 percent at any time during the appeal period. To warrant a higher rating under Diagnostic Code 5223, the evidence must show favorable ankylosis of the index and ring finger or of the thumb and ring finger. The competent medical evidence of record shows that ankylosis was not found during either VA examination or in the medical records. While the Veteran feels that he has loss the use of his right hand, the Board notes that both VA examiners indicated that there is not functional impairment of the finger such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There is no other competent and credible evidence of impaired function rising to the level of loss of use even considering the flare-ups reported at the initial VA examination and the functional impairment described at both examinations. In reaching this conclusion, the Board has considered the application of the other diagnostic codes pertaining to the fingers. A higher rating under Diagnostic Code 5219 is not warranted because unfavorable ankylosis of the long and ring finger or of the ring and little fingers has not been shown. Similarly, the competent medical evidence of record indicates that the Veteran’s additional range of motion of the other fight hand fingers and/or the progression of his right hand arthritis is not attributable to his service connected right ringer finger such that a higher rating is not warranted under Diagnostic Codes 5220, 5221, 5222. There is no basis to award a rating higher than 10 percent for the Veteran’s service-connected residuals of a fracture of the right fourth metacarpal. The benefit of the doubt doctrine is not applicable as the preponderance of the evidence is against the claim. Entitlement to a rating in excess of 10 percent is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.