Citation Nr: 21004115 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-16 486 DATE: January 26, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative process and fractures of the right hand is denied. Entitlement to a 10 percent rating prior to January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand is granted. Entitlement to a rating in excess of 10 percent from January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand is denied. Entitlement to an initial rating in excess of 50 percent prior to January 8, 2020, for posttraumatic stress disorder (PTSD) with dysthymic disorder and generalized anxiety disorder is denied. FINDINGS OF FACT 1. The Veteran’s degenerative process and fractures of the right hand is manifested by painful motion; there are no occasional incapacitating exacerbations or ankylosis. 2. Prior to January 3, 2020, the Veteran's degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand was manifested by painful motion. 3. From January 3, 2020, the Veteran's degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand is manifested by painful motion; there are no occasional incapacitating exacerbations or ankylosis. 4. Prior to January 8, 2020, the severity, frequency, and duration of the Veteran’s PTSD with dysthymic disorder and generalized anxiety disorder symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative process and fractures of the right hand are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5229. 2. The criteria for a 10 percent rating for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand are met prior to January 3, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5229. 3. The criteria for a rating in excess of 10 percent for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand are not met from January 3, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5229. 4. The criteria for an initial rating in excess of 50 percent for PTSD with dysthymic disorder and generalized anxiety disorder are not met prior to January 8, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1966 to September 1967. His decorations include the Purple Heart Medal. He testified before a Decision Review Officer during a September 2011 hearing, and before a Veterans Law Judge (VLJ) who has since retired from the Board of Veterans’ Appeals (Board) during a November 2018 hearing. This matter is on appeal from May 2011 and January 2012 rating decisions, and was previously remanded by the Board in June 2019. In a September 2020 rating decision, a 100 percent rating was granted for the Veteran's psychiatric disability effective January 8, 2020. Therefore, the Board has characterized the issue as entitlement to a higher rating prior to January 8, 2020. A November 2020 letter informed the Veteran that the VLJ who held his hearing was no longer with the Board, and that he could have a new hearing. He was informed that if no response was received within 30 days, it would be assumed that he did not want another hearing. To date, as no response has been received; the Board will proceed to adjudicate the appeal. In making its determinations, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that these disabilities him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of 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. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial rating in excess of 10 percent for degenerative process and fractures of the right hand The Veteran contends that he is entitled to a higher rating because of painful motion. November 2018 Hearing Transcript at 17. The Veteran’s degenerative process and fractures of the right hand disability is rated under a hyphenated diagnostic code. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Diagnostic Code 5003 refers to degenerative arthritis, whereas Diagnostic Code 5229, refers to limitation of motion of index or long finger. A 10 percent rating is available for degenerative arthritis established by x-ray findings under 38 C.F.R. § 4.71a, Diagnostic Code 5003 based on limitation of motion under the appropriate diagnostic codes 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 the 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, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling. The 20 percent and 10 percent ratings based on x-ray findings without limitation of motion will not be combined with ratings based on limitation of motion. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f). Under Diagnostic Code 5229, a maximum 10 percent rating is warranted with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative process and fractures of the right hand. The Veteran is in receipt of the highest schedular rating for limited motion of the index or long finger under Diagnostic Code 5229. As for a higher rating under Diagnostic Code 5003, the Board acknowledges the Veteran’s lay reports of symptoms including pain. No functional loss or incapacitating exacerbations were shown in February 2011 and January 2020 VA examinations. The 2020 examination reflects limitation of motion. No flare-ups were reported at either examination. Therefore, even considering the Veteran’s lay reports of symptoms, the degree of additional limitation reflected by the statements that the Veteran has painful motion, would not result in symptoms more nearly approximating occasional incapacitating exacerbations. The Board has considered whether any other Diagnostic Codes related to disabilities of the hand and fingers 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. See 38 C.F.R. § 4.71a. The evidence does not show that the Veteran has limitation of motion of thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. It also does not show unfavorable or favorable ankylosis of any digits. Therefore, higher ratings under Diagnostic Codes 5216 through 5228 are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for an initial rating in excess of 10 percent for degenerative process and fractures of the right hand. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable rating prior to January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand The Veteran contends that he is entitled to a higher rating because of painful motion, swelling, and an inability to grip. November 2018 Hearing Transcript at 15-17. The Veteran’s degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand of the left hand is rated under the same hyphenated diagnostic code as the right hand disability. The criteria for Diagnostic Code 5003 was discussed above and will not be repeated. Under Diagnostic Code 5229, a noncompensable rating is warranted with a gap of less than one inch (2.5 cm.) 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. The highest 10 percent rating is warranted with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence supports a 10 percent rating prior to January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand. The February 2011 VA examination reveals that the Veteran had pain. He testified at his hearing that he had pain with motion. November 2018 Hearing Transcript at 16-17. Considering the Veteran's painful motion, the Board concludes that a 10 percent rating under Diagnostic Code 5003 is warranted. 38 C.F.R. § 4.59. However, an even higher rating is not warranted. The February 2011 examination does not show occasional incapacitating exacerbations. As noted above, the higher rating available under Diagnostic Code 5229 is 10 percent. Therefore, the Board concludes that a 10 percent rating prior to January 3, 2020, is warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the hand and fingers 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. See 38 C.F.R. § 4.71a. The evidence does not show that the Veteran has limitation of motion of thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. It also does not show unfavorable or favorable ankylosis of any digits. Therefore, higher ratings under Diagnostic Codes 5216 through 5228 are not warranted. 3. Entitlement to a rating in excess of 10 percent from January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand The Veteran contends that he is entitled to a higher rating because of painful motion, swelling, and an inability to grip. November 2018 Hearing Transcript at 15-17. The Veteran’s degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand is rated under the same hyphenated diagnostic code as the right hand disability. The criteria for Diagnostic Codes 5003 and 5229 were discussed above and will not be repeated. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand. The Veteran is in receipt of the highest schedular rating for limited motion of the index or long finger under Diagnostic Code 5229. As for a higher rating under Diagnostic Code 5003, the Board acknowledges the Veteran’s lay reports of symptoms including pain and an inability to grasp. No functional loss or incapacitating exacerbations were shown in the January 2020 VA examination. The 2020 examination reflects limitation of motion. No flare-ups were reported at the examination. Therefore, even considering the Veteran’s lay reports of symptoms, the degree of additional limitation reflected by the statements that the Veteran has painful motion and an inability to grasp, would not result in symptoms more nearly approximating occasional incapacitating exacerbations. These symptoms are fully contemplated by the currently assigned 10 percent rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the hand and fingers 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. See 38 C.F.R. § 4.71a. The Veteran's left thumb is surgically absent. The evidence does not show unfavorable or favorable ankylosis of any digits. Therefore, higher ratings under Diagnostic Codes 5216 through 5228 are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent from January 3, 2020, for degenerative joint disease of 2nd, 3rd, and 4th digits of the left hand. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an initial rating in excess of 50 percent prior to January 8, 2020, for PTSD with dysthymic disorder and generalized anxiety disorder The Veteran contends that he is entitled to a higher rating due to his symptomatology. November 2018 Hearing Transcript at 20-23. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the March 2011 VA examination, the private March 2011 and September 2012 evaluations, and the Veteran’s lay statements show that the Veteran’s PTSD with dysthymic disorder and generalized anxiety disorder prior to January 8, 2020, was manifested by symptoms associated with a 50 percent rating of flattened affect; impairment of short and long-term memory; impaired judgment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, and symptoms associated with a 70 percent rating of difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. He also had symptoms that are not listed with a specific rating, such as being avoidant of people and isolative; irritability; feeling “keyed up” and on edge; outbursts of anger; difficulty concentrating; and anhedonia. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. No flare-ups in severity have been reported. Further, symptoms such as being avoidant of people and isolative; irritability; feeling “keyed up” and on edge; outbursts of anger; difficulty concentrating; impaired judgment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records, the March 2011 VA examination, and the private March 2011 and September 2012 evaluations, indicate that the Veteran had mildly depressed, nervous, and indecisive moods; responsive, well-modulated, constrictive, and flat affects; somewhat compromised short-term to intact memory; unhampered, reasonable, and impaired insight; and unhampered and reasonable judgment. During the private March 2011 VA evaluation, the Veteran reported that he was often frustrated and did not have much patience. The VA examiner opined that the Veteran was not showing any significant occupational impediments as a result of his PTSD. The private September 2012 evaluation reveals the Veteran found himself ruminating and often felt “keyed up” or on edge. He reported trouble concentrating and that he often lost his train of thought. While the Veteran did experience symptoms contemplated by a 70 percent rating—difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships—the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, the private September 2012 evaluation shows that the Veteran had been employed for the same company for the last 34 years. He reported having no problems appropriately interacting with his supervisor or co-workers. He reported that if he could avoid them, he would. The March 2011 VA examination reveals that the Veteran was married, although he and his wife lived in separate states. He reported speaking to his wife on the phone daily, and also spoke to his children out of state. He reported seeing his wife three or four times a year. The private March 2011 evaluation reveals that the Veteran denied having any community involvement. The private September 2012 evaluation also shows that the Veteran had been separated from his wife for “twenty-some” years. The evidence does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating for the period prior to January 8, 2020. The criteria for a 70 percent or higher rating are not met, and the appeal must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.