Citation Nr: 21002224 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-42 804A DATE: January 13, 2021 ORDER Entitlement to a rating in excess of 40 percent for a right hand disability is denied. FINDING OF FACT The Veteran’s right hand disability is not manifested by ankylosis of the thumb. CONCLUSION OF LAW The criteria for rating in excess of 40 percent for a right hand disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5221 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1977 to April 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board in July 2019. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in December 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Increased Rating – Right Hand Disability The Veteran asserts that he should have a higher rating for his right hand disability as his symptoms are worse than those contemplated by the currently assigned rating. At an August 2015 VA examination, the Veteran reported worsening weakness, fatiguability, and pain in his right hand. He described his pain as throbbing, and reported that the pain was a 4-5 out of 10 in intensity during activities, and that it worsened with rainy and cold weather. The Veteran denied any follow-up or surgery for his right hand. He stated that he had learned to live with the disability even though it interfered with his activities of daily living. The Veteran reported difficulty with holding small objects, throwing a ball, moving furniture, using a computer, and writing at work. The Veteran reported experiencing flare-ups with a throbbing sensation in the affected fingers, especially at night; with a pain level of approximately 7 out of 10 in intensity. He reported that the flare-ups lasted anywhere from a few hours to a few days at a time, and that he experienced flare-ups approximately 1-2 times a month. The Veteran reported functional impairment in the form of having difficulty writing, lifting anything for an extended period of time, performing repetitive activities, and driving a manual transmission vehicle. Upon physical examination of the Veteran’s right hand, limited range of motion findings were as follows: index finger distal interphalangeal (DIP) flexion limited to 60 degrees, long finger DIP flexion limited to 20 degrees, ring finger DIP flexion limited to 0 degrees, and thumb interphalangeal (IP) flexion limited to 55 degrees. There was a 1 centimeter (cm) gap between the pad of the thumb and the fingers. There were 1 cm gaps between the finger and proximal traverse crease of the hand on maximal finger flexion of both the right index finger and the right long finger. The examiner noted that the Veteran’s limitation of motion resulted in a minimal impact on writing, opening a lid from a jar, and using his grip for pliers or a screwdriver. The Veteran was noted to have pain on finger flexion of the right hand. There was pain on use, and mild tenderness over the phalanges of the 3rd and 4th fingers of the right hand. The Veteran was able to perform repetitive testing, and there was no additional limitation of function following repetition. Muscle strength testing revealed decreased muscle strength in the right hand, but there was no muscle atrophy. There was no right hand or finger ankylosis. The Veteran was noted to have swan neck deformities of the right 3rd and 4th fingers. The examiner noted that the Veteran’s right hand disability would impact his ability to work in that he would be limited in his ability to type or write for prolonged periods. At a January 2020 VA examination, the Veteran reported daily hand pain with gripping, lifting objects, writing, or any use of the hand. He denied any surgical repair of his right hand. He reported that he was right-handed. He reported daily flare-ups of the right hand, that the flare-ups were moderate in severity, and that they would last hours at a time. He reported that the flare-ups were precipitated by overuse and writing, and were alleviated by rest and medication. The Veteran reported functional impairment to consist of an inability to lift anything heavier than 10 pounds, an inability to grip or write for more than one minute at a time, and an inability to type. Upon physical examination of the Veteran’s right hand, limited range of motion findings were as follows: index finger DIP flexion limited to 60 degrees, long finger DIP flexion limited to 20 degrees, ring finger DIP flexion limited to 0 degrees, and thumb proximal interphalangeal (PIP) flexion limited to 55 degrees. There was a 1.5 cm gap between the pad of the thumb and the fingers. There were 1 cm gaps between the finger and proximal transverse crease of the hand on maximal finger flexion of the index finger and the long finger. The Veteran’s abnormal range of motion caused him to be unable to grip or write for more than one minutes, and he was unable to lift more than 10 pounds. The Veteran was noted to have pain on all excursions of motion, passive range of motion, and non-weight bearing. There was mild tenderness to palpation of the 3rd and 4th fingers. The Veteran was able to perform repetitive testing, and there was no additional limitation of function following repetition. The examiner found that the Veteran would not be significantly limited by pain, weakness, fatigability, or incoordination following repeated use over a period of time, or during a flare-up. Muscle strength testing revealed decreased muscle strength, but there was no muscle atrophy. There was no ankylosis. The Veteran’s right hand disability was noted to impact his ability to work, in that he was unable to lift more than 10 pounds, and he was unable to grip objects or write for more than one minute. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private providers. A review of the treatment records does not show that the Veteran has symptoms of his right hand disability that are worse than those reported in the various VA examination reports of record, to include limitation of motion or functional impairment during flare-ups or following repeated use over a period of time. The Board finds that a rating in excess of 40 percent for the Veteran’s right hand disability is not warranted. A higher disability rating under Diagnostic Code 5221 requires favorable ankylosis of the thumb. However, the VA examination reports do not reflect that ankylosis of the right thumb was present. Further, the VA treatment notes of record do not show ankylosis of the right thumb. Further, the Board notes that any additional limitation due to pain, weakness, fatigability, or incoordination during range of motion, following repeated use over a period of time, or during a flare-up was considered by the examiner when reporting the range of motion measurements. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for the assignment of a higher rating. As such, a rating in excess of 40 percent for the Veteran’s right hand disability is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5221. Consideration has been given as to whether additional ratings are warranted for resulting limitation of motion of other digits or interference with overall function of the hand. However, for the right hand, a rating in excess of the assigned percentage is not warranted in the absence of findings of unfavorable ankylosis of any joint or ankylosis of the thumb. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a rating in excess of 40 percent for the Veteran’s right hand disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.