Citation Nr: 20060233 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 16-24 812 DATE: September 14, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for left hand arthritis hand is denied. Entitlement to an initial rating in excess of 10 percent for right hand arthritis hand is denied. FINDINGS OF FACT 1. The Veteran's left hand arthritis manifests with pain on motion and slight reduction in grip strength causing difficulty lifting and grasping objects but no limitation of motion of the fingers to the palm or thumb. 2. The Veteran's right hand arthritis manifests with pain on motion and slight reduction in grip strength causing difficulty lifting and grasping objects but no limitation of motion of the fingers to the palm or thumb. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left hand arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5003 (2019). 2. The criteria for an initial rating in excess of 10 percent for right hand arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5003 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from January 1974 to October 1976 and from October 1976 to February 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for arthritis of the right and left hands and assigned a 10 percent rating each, effective September 3, 2002. In July 2012, the Veteran expressed timely disagreement with the initial ratings. In December 2019, the Board remanded the appeal for additional development; to obtain a new VA examination to discuss the worsening of the Veteran’s bilateral hand arthritis. The necessary examination was obtained in February 2020. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Arthritis, Left and Right Hand The Veteran's arthritis of the left and right hand has been assigned a 10 percent rating pursuant to a hyphenated diagnostic code under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5003, effective from September 2002. He contends that his disability is more severe than what is represented by the currently assigned rating. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5299 refers to the musculoskeletal system. See 38 C.F.R. §§ 4.27, 4.71a, Schedule of ratings-musculoskeletal system. The rating criteria for degenerative arthritis are found under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis, degenerative, substantiated 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating may be assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating may be assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Under DC 5229, limitation of motion of the index or long finger is assigned a 10 percent rating 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 to the extent possible, or; with extension limited by more than 30 degrees. A noncompensable rating is assigned 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 to the extent possible, and; extension is limited by no more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229 (2017). Diagnostic Code 5010 pertains to traumatic arthritis substantiated by X-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis. The rating criteria for degenerative arthritis are found under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under DC 5030, limitation of motion of the ring or little finger is assigned a noncompensable rating. 38 C.F.R. § 4.71a (2017). The Veteran does not have ankylosis or amputation of his fingers. Therefore, DCs 5126-5156 and DCs 5216-5227 are not applicable in this case. In October 2002, the Veteran underwent an X-ray and no diagnosis (impression) was given, there was no fracture. See November 2003 Medical Treatment Record-Non-Government Facility, p.10. In a December 2002 compensation and pension exam report, the Veteran reported that he had arthritis in his hands. He stated that his pain was intermittent and present 4-5 months of the year during cold weather. To help with the pain the Veteran used over the counter creams to ease the pain. See October 2002 VA examination, p.2. The Veteran underwent a musculoskeletal examination; his wrists was palmar flexion and dorsi flexion at 60 degrees, ulnar deviation was 35 degrees and radical deviation was 20 degrees. His fingers revealed the metatarsal phalangeal joint showed reduced flexion at 60 degrees. See October 2002 VA examination, p.4-5. In an October 2003 private treatment record, a clinician noted that the Veteran experienced significant pain and tenderness in his hands. See October 2003 Medical Treatment Record-Non-Government Facility, p.1. In July 2010, the Veteran was afforded a Board hearing on the issue of the propriety of reopening a claim for service connection. The Veteran testified that he first noticed pain with his hands in 1986 while in service. He indicated that he was unable to do pushups. He stated that he had a diagnosis of arthritis in his hand and shoulder. He stated that arthritis showed up in his hands around May 1994. See July 2010 Hearing Transcript. In September 2010, the Veteran was afforded a hand, thumb, and fingers examination. The Veteran reported stiffness and pain in his hands while on active duty. The Veteran stated pain and stiffness in his hands made it hard to grip objects and he denied manipulation of the dexterity of his fingers. The physical examination revealed he had no muscle wasting or ankylosis. He was able to oppose fingers to thumb and there was no swelling of the fingers. The Veteran had mild or minimal weakness when attempting to open his hands after making a full fist. He had some mild tenderness over the metacarpophalangeal. The Veteran was able to twist, probe and write; and his sensations were normal. The Veteran had no flexion deformities and X-rays revealed no bone or joint abnormalities. The diagnosis given was chronic hand strain. In April 2012 the Veteran was afforded another hand and fingers condition VA examination. The examiner noted a diagnosis of degenerative joint disease. The Veteran did not report flareups. There was no limitation of motion or evidence of painful motion for any fingers or thumbs. In terms of finger flexion, there was no gap between any fingertips and proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-tip. There was no functional loss or functional impairment of any of his fingers or thumb of either hand. There was no additional limitation of range of motion on repetitive use. There was no functional loss with either hand. The Veteran had tenderness or pain to palpation for joints or soft tissue of either hand. Muscle strength testing revealed a 4/5 for hand grip bilaterally and there was no ankylosis. The examiner found that hand/finger function was so diminished that amputation with prosthesis would equally serve the Veteran. Then in a May 2012 VA examination addendum, the examiner corrected herself and found that hand/finger function was not so diminished that amputation with prosthesis would equally serve the Veteran. See April 2016 Capri, p.486. In a July 2012 notice of disagreement (NOD), indicated that he disagreed with the RO’s outcome. The Veteran stated that his whole had not been reviewed. He also stated that he was not asked what his level of pain was and had to take a job 6 years earlier, making less money due to the pain in his hands. The Veteran stated he was working at a lab and would have to call out due to chronic joint pain in his hand. See July 2012 NOD, p.2. In November 2012, the Veteran complained of worsening numbness in his left hand and had decreased strength in his hand. See October 2003 Medical Treatment Record-Non-Government Facility, p.142. In February 2020, the Veteran underwent a hands and fingers VA examination. The examiner noted the Veteran’s report of pain in both hands with swelling, stiffness, weakness and fatigued hands. The Veteran reported difficulty picking up and gripping objects and occasional locking of the joints. Treatment is with a topical gel. Flare-ups occur multiple times per day precipitated by cold, rain, and snow. He reported being able to write but not type and lifting only one to two pounds. On examination, the examiner provided ranges of motion initially, on repetition, and estimates during flare-ups. Range of motion of the right index metacarpophalangeal (MCP) joint was from 0 (extension) to 60 degrees (flexion); range of motion of the right index proximal interphalangeal (PIP) joint was from 0 to 90 degrees; and range of motion of the right index distal interphalangeal (DIP) joint was from 0 to 40 degrees. Range of motion of the right long MCP joint was from 0 to 60 degrees; range of motion of the right long PIP joint was from 0 to 90 degrees; and range of motion of the right long DIP joint was from 0 to 70 degrees. Range of motion of the right ring MCP joint was from 0 to 60 degrees; range of motion of the right ring PIP joint was from 0 to 80 degrees; and range of motion of the right ring DIP joint was from 0 to 70 degrees. There was pain with finger flexion; extension and opposition to thumb; that resulted in functional loss. There was no gap between the pad of the thumb and fingers; no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The range of motion did not contribute to functional loss but there was objective evidence of localized tenderness or pain on palpation. Range of motion of the left index metacarpophalangeal (MCP) joint was from 0 (extension) to 70 degrees (flexion); range of motion of the left index proximal interphalangeal (PIP) joint was from 0 to 100 degrees; and range of motion of the left index distal interphalangeal (DIP) joint was from 0 to 60 degrees. Range of motion of the left long MCP joint was from 0 to 70 degrees; range of motion of the left long PIP joint was from 0 to 100 degrees; and range of motion of the left long DIP joint was from 0 to 60 degrees. Range of motion of the left ring MCP joint was from 0 to 60 degrees; range of motion of the left ring PIP joint was from 0 to 100 degrees; and range of motion of the left ring DIP joint was from 0 to 60 degrees. There was pain with finger flexion; extension and opposition to thumb; that resulted in functional loss. There was no gap between the pad of the thumb and fingers; no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The range of motion did not contribute to functional loss but there was objective evidence of localized tenderness or pain or palpation. There was no additional loss or range of motion after repetitive use testing. Muscle strength testing revealed hand grip a 4/5 for both hands. There is no muscle atrophy and no ankylosis. There was no use of assistive devices. There was no objective evidence of pain on passive range of motion testing on the left and right hand; no objective evidence of non-weight bearing on the left and right hand. Analysis After review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's left- and right-hand arthritis is not warranted. As noted, the Veteran's left and right hand disability has been assigned a 10 percent evaluation for noncompensable limitation of motion and evidence of painful motion with x-ray evidence of arthritis, by analogy under Diagnostic Codes 5299-5003. Although the Board acknowledges the limitation of motion of the Veteran's left and right hand arthritis, such does not commensurate to a compensable evaluation. Therefore, the assigned evaluation under Diagnostic Codes 5299-5003 is the most favorable to the Veteran. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5299, 5003. Likewise, the Veteran's limitation of motion of the left and right index and left and right long fingers is noncompensable under Diagnostic Code 5229 as the evidence does not demonstrate a gap of one inch (2.5 cm.) or more between the fingertip proximal transverse crease of the palm, or extension of the finger(s) limited by more than 30 degrees. See February 2020 VA Examination Objective Range of Motion Findings (noting no additional loss of motion and/or gaps of one inch or more with repetitive use testing). Therefore, the assigned evaluation under Diagnostic Codes 5299-5003 is more favorable to the Veteran than evaluation(s) under Diagnostic Code 5229. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5299, 5003, 5229. The Board has considered ratings under Diagnostic Codes 5218, 5222, 5225, 5226, and 5227, however, ankylosis has not been shown during the appeal period. Indeed, the February 2020 VA examiners expressly found that no ankylosis was present. Therefore, the service-connected left- and right-hand arthritis disability does not approximate a disability based on ankylosis of the finger(s) and a higher rating is not warranted under these Diagnostic Codes. In reaching the above conclusions, consideration has been given to any functional impairment and any effects of pain on functional abilities. The Board acknowledges that the Veteran has reported pain throughout his appeal. The Board further acknowledges that the February 2020 VA examiner reported objective evidence of pain following flexion of the hands/fingers; however, this did not result in any additional functional lose or impairment per the examiner. The Board also acknowledges that the February 2020 examiner indicated that there was localized evidence of tenderness/pain, slight decreased grip (4/5) and no additional factors contributing to the conditions. The Veteran has described that during flare-ups they occurred 3-4 times a day that was moderate to severe; lasting 30-45 minutes and during precipitated weather. The Board finds, however, that the functional impairment and effects of pain exhibited by the service-connected bilateral arthritis of the hand’s with functional losses and loss of range of motion have already been considered by the RO in the assignment of the current 10 percent disability. In addition, during the February 2020 VA examinations, the Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. These findings do not support the assignment of a rating in excess of 10 percent under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca. (continued next page) The Board has also considered ratings under Diagnostic Codes 5138, 5135, 5154, and 5155, providing for ratings based on amputation. However, the February 2020 VA examiner opined that the Veteran's hand/finger condition would not be served equally well by amputation. Therefore, the service-connected residuals of both hand disabilities do not approximate a disability based on amputation of the finger(s) and a higher rating is not warranted under these Diagnostic Codes. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.