Citation Nr: 21004235 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-13 462 DATE: January 26, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for residuals of a right index finger injury is denied. Entitlement to an initial compensable evaluation for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury for the period from December 13, 2011 to March 6, 2019 is denied. Entitlement to an evaluation of 20 percent, but no higher, for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury for the period beginning March 7, 2019 is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran has not had favorable or unfavorable ankylosis of the right index finger. 2. For the period from December 13, 2011 to March 6, 2019, the evidence of record does not show that the Veteran’s right index finger disability resulted in at least a mild level of incomplete paralysis involving radial (musculospiral) nerve. 3. For the period beginning March 7, 2019, resolving reasonable doubt in the Veteran’s favor, the Veteran has been having mild incomplete paralysis involving radial (musculospiral) nerve as a progression of his service-connected right index finger disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of a right index finger injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.20, 4.59, 4.71a, Diagnostic Code 5229 (2019). 2. For the period from December 13, 2011 to March 6, 2019, the criteria for an initial compensable evaluation for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8514 (2019). 3. For the period beginning March 7, 2019, the criteria for an evaluation of 20 percent, but no higher, for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8514 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to August 1997. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In July 2019, the Board remanded the matter for additional development. Now the matter is returned to the Board. The Veteran is seeking a higher evaluation for his service-connected right index finger disability, which is currently rated at 10 percent disabling. Although not appealed by the Veteran, the Board also takes jurisdiction of the issue of increased rating for peripheral neuropathy of the right index finger as it is part and parcel of the issue on appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2019). The Board notes that the Veteran’s right index finger disability has been evaluated under Diagnostic Code 5299-5010. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27 (2019). However, the evidence shows that Diagnostic Code 5229 is more analogous to the Veteran’s current limitation of motion of the right index finger with pain. Thus, the Veteran’s service-connected right index finger disability will be evaluated under Diagnostic Code 5229. Under Diagnostic Code 5229, in pertinent part, a maximum 10 percent evaluation is warranted for limitation of motion of the major and minor index and long fingers if there is a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible and extension is limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2019). As the Veteran is currently evaluated at the maximum disability rating of 10 percent under Diagnostic Code 5229, he is not entitled to a rating higher than 10 percent for limitation of motion of his right index finger. The Board notes that additional disability rating is available for unfavorable or favorable ankylosis of the right index finger. 38 C.F.R. § 4.71a, Diagnostic Code 5225 (2019). However, the evidence of record does not show that the Veteran has had favorable or unfavorable ankylosis of the right index finger at any time during the entire period on appeal. See e.g., December 2015 and December 2019 Hand and Finger Conditions Disability Benefits Questionnaire (DBQ). Thus, the Board finds that additional disability rating for the Veteran’s right index finger disability, other than the current evaluation under Diagnostic Code 5229, is not warranted. Consequently, the Board finds that the Veteran’s entitlement to an evaluation in excess of 10 percent for residuals of a right index finger injury is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.20, 4.59, 4.71a, Diagnostic Code 5229 (2019). Since the July 2019 Board Remand, the Veteran was service-connected for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury with a noncompensable rating from December 13, 2011. See August 2020 Rating Decision. The record shows that the Veteran’s right hand is his dominant hand. Disease of peripheral nerves, radial (musculospiral) nerve in particular, is evaluated under Diagnostic Code 8514. Under Diagnostic Code 8514, for a major extremity: a 20 percent evaluation is warranted for mild incomplete paralysis; a 30 percent evaluation is warranted for moderate incomplete paralysis; a 50 percent evaluation is warranted for severe incomplete paralysis; and a maximum 70 percent evaluation is warranted for complete paralysis including drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger, cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist, supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously, total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2019). In regard to the Veteran’s peripheral neuropathy, the Veteran testified during the March 2019 hearing that he experiences tingling and numbness in his right index finger. See March 7, 2019 Hearing Transcript, at 3. The Veteran also provided that he has weakness in hand when handling heavy items and flare-ups involving stiffness, swelling, and pain for two days. See id., at 2. The Board finds the Veteran’s testimony regarding his additional symptoms of tingling and numbness of the right index finger competent and credible. The Veteran underwent a VA examination for peripheral nerves conditions in December 2019. The examiner provided that the Veteran now has peripheral neuropathy as a progression of his service-connected right index finger disability. The examiner noted the Veteran’s mild symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness affecting right upper extremity. The Veteran’s grip of the right side and pinch (thumb to index finger) were measured at 4/5 (active movement against some resistance), and had decreased sensation for light touch for right hand and fingers. The examiner provided that the Veteran has mild incomplete paralysis of the right side involving radial (musculospiral) nerve. However, as provided below, the evidence of record prior to March 7, 2019 does not show the Veteran’s peripheral neuropathy of the right index finger which was resulting in at least a mild level of incomplete paralysis involving radial nerve. On May 2012 VA examination, the examiner noted the Veteran’s diagnosis of right index finger arthritis. The Veteran reported that flare-ups impact function of the hand due to occasional pain. The examiner noted that there was no limitation of motion or evidence of painful motion for any fingers or gap between the thumb pad and the fingers. For right index finger flexion, there was a gap less than 1 inch (2.5 cm) between the index finger and the proximal transverse crease of the palm without objective evidence of painful motion. As to finger extension, there was limitation of extension of the right index finger by no more than 30 degrees without objective evidence of painful motion. The examiner noted that contributing factors for additional limitation of range of motion of the right index finger after repetitive use are less movement than normal and deformity. The examiner provided that there were no other significant diagnostic test findings and/or results. On a December 2013 occupational therapy consultation, the therapist noted the diagnosis of chronic right index finger pain. It was reported that the Veteran was able to make a fist with some limitations without sensation deficits. Pain level for the right index finger was noted at 3/10 with passive range of motion. Active range of motion for the right index finger MCP joint was from 0 degree to 80 degrees; PIP joint was from 0 degree to 80 degrees; and DIP joint was from 0 degree to 40 degrees. The right index finger was 0.5 cm from distal palmar crease. During a December 2014 occupational therapy consultation, the Veteran reported that his right index finger feels stiff and hurts when he bends it. The therapist noted minimal swelling in the right index finger’s PIP joint and an active range of motion within normal limits. The therapist provided a diagnosis of joint pain involving hand. On December 2015 VA examination, the Veteran complained of stiffness and painful joints related to his finger condition. He provided that he experiences swelling, stiffness, and extreme pain during right hand flare-ups. The right index finger’s maximum extension was normal, but maximum flexion was outside of normal range. Maximum flexion of the MCP joint was limited to 70 degrees, PIP joint was limited to 80 degrees, and DIP joint was limited to 50 degrees. The Veteran did not have a gap between the pad of the thumb and the fingers, but there was a 2 cm gap between the right index finger and proximal transverse crease of the hand on maximal finger flexion. Pain was noted on finger flexion range of motion testing, and there was evidence of pain with use of the right hand. There was objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. The examiner provided that imaging studies of the right hand showed degenerative or traumatic arthritis in the right hand, but there was no other significant diagnostic test findings or results. On an August 2016 therapy session, the therapist noted the Veteran’s active range of motion of right index finger as MCP joint flexion to 80 degrees; PIP joint flexion to 65 degrees, and DIP/IP joint flexion to 80 degrees. Distance from the right index finger to distal palmar crease was 1.0 cm. The Veteran’s chronic right index finger pain and a prescription of topical gel for the pain was noted throughout his medical records from 2016 to 2018, but the record does not show any diagnosis or treatment related to peripheral neuropathy secondary to his right index finger condition during that time. Based on above, the Board finds that the Veteran’s entitlement to an initial compensable evaluation for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury for the period from December 13, 2011 to March 6, 2019 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8514 (2019). As to the period beginning March 7, 2019, the Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran has been having mild incomplete paralysis involving radial nerve as a progression of his service-connected right index finger disability. Consequently, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s entitlement to an evaluation of 20 percent, but no higher, for peripheral neuropathy of the right index finger associated with residuals of a right index finger injury for the period beginning March 7, 2019 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8514 (2019). The next higher evaluation of 30 percent is not   warranted as the evidence does not show a moderate level of incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.