Citation Nr: 21004277 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-12 186 DATE: January 26, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, prior to February 9, 2017, for right index finger osteoarthritis is granted. Entitlement to an initial rating of 10 percent from February 9, 2017 forward for right index finger osteoarthritis is denied. FINDINGS OF FACT 1. Prior to February 9, 2017, the Veteran’s right index finger osteoarthritis was manifested by painful motion, biweekly flare-ups, and tenderness of the metacarpophalangeal joint. 2. From February 9, 2017 forward, the Veteran’s right index finger osteoarthritis was manifested by painful motion, weakened motion, achiness, and limitation of flexion and extension of the metacarpophalangeal, proximal interphalangeal and distal interphalangeal joints. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, prior to February 9, 2017, for right index finger osteoarthritis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. The criteria for an initial rating in excess of 10 percent from February 9, 2017 forward for right index finger osteoarthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to August 2005, with an additional period of active duty for training (ADT) from July 1981 to October 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board denied an increased rating for the right index finger osteoarthritis (“right index finger disability”) on appeal in an August 2018 decision, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). An August 2019 Court order implemented an August 2019 Joint Motion for Partial Remand, vacating and remanding that portion of the Board decision that denied an increased rating for the right index finger disability. The issue of entitlement to an increased rating for a right index finger disability was returned to the Board, and in December 2019 the Board remanded that issue for further development. In July 2020 the RO requested that the Veteran submit or release all relevant private treatment records, and the Veteran was provided with a VA examination in September 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2019 the Board also granted service connection for obstructive sleep apnea, denied an increased rating for headaches prior to February 8, 2016, and granted and increased rating for headaches from February 8, 2016 forward. The Veteran did not appeal these determinations, and therefore those issues are no longer before the Board. 38 C.F.R. § 20.1100. Veterans Claims Assistance Act of 2000 (VCAA) As briefly noted above, during the course of the current appeal the Veteran has indicated that he receives private treatment for his right index finger disability. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In July 2020 correspondence the RO requested that the Veteran either submit himself or authorize for release all private treatment records relevant to his claim, and provided the Veteran with the necessary forms. To date, the Veteran has neither submitted the records, nor submitted the necessary forms to allow VA to obtain the records on his behalf. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran has failed to cooperate with VA’s attempts to obtain the identified private treatment records. As such, the Board finds that VA has made sufficient efforts to obtain any outstanding private treatment records, and therefore the duty to assist with the procurement of relevant records has been met. 38 C.F.R. § 3.159(c). Neither the Veteran, the representative nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issue on appeal. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 1. Entitlement to an increased rating for a right index finger disability. The Veteran’s right index finger disability is rated under Diagnostic Code 5010, governing traumatic arthritis. Diagnostic Code 5010, in turn, is rated under the criteria contained in Diagnostic Code 5003, governing degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As such, the Veteran’s right index finger disability will be rated based on the Diagnostic Codes concerning limitation of motion of the index finger. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5229. Under Diagnostic Code 5229, limitation of motion of the index finger with a cap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the ring flexed to the extent possible, and extension limited by no more than 30 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5229. A 10 percent rating is warranted for limitation of motion of the index finger with 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, or extension limited by more than 30 degrees. Id. 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. 38 C.F.R. § 4.71a, Evaluation of Ankylosis of Limitation of Motion of Single or Multiple Digits of the Hand, Note 1. For digits II through V, the metacarpophalangeal (MCP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal or terminal interphalangeal (DIP) joint, has a range of zero to 70 or 80 degrees of flexion. Id. During the period on appeal, the Veteran has reported that he experiences painful motion of the index finger, tingling, pain and stiffness. The Veteran has also reported flare-ups of the disability manifested by increased pain. He is competent to report such lay observable symptoms, and there is no evidence that his statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, they are entitled to probative weight as to the severity of the disability during the period on appeal. The Veteran was provided with VA examinations in March 2011, February 2017, and September 2020. In March 2011, the Veteran stated that he experienced chronic pain in his right index finger, and experienced flare-ups of the disability biweekly with work. On examination the Veteran was capable of full range of motion of all of his fingers, with the examiner noting that repetitive testing did not appear to increase his pain. The examiner noted there was exquisite tenderness over the first (MCP) joint. In February 2017, the Veteran’s reported experiencing swelling and pain in the right index finger. The Veteran further reported flare-ups manifested by increased pain and limitation of motion. On examination the Veteran was capable of MCP joint flexion from 10 degrees to 55 degrees, PIP joint motion from 10 degrees to 45 degrees, and DIP joint motion from 0 degrees to 10 degrees. The examiner also stated that there was a 4 cm. gap between the index finger and the proximal transverse crease of the hand on maximal flexion. The examiner stated that there was no further loss of motion due to repetitive testing, but did not provide an estimate concerning loss of motion during flare-ups. The examiner finally stated that there was no evidence of loss of use or ankylosis. In September 2020 the Veteran reported that he experienced tingling, pain, stiffness, aching and throbbing. He further reported flare-ups of the disability occurring two or three times a month and lasting one to three days, which were manifested by increased pain. The examiner stated that the Veteran was capable of MCP flexion from 5 degrees to 65 degrees, PIP joint flexion from 0 degrees to 75 degrees, and DIP joint flexion from 10 degrees to 30 degrees. The examiner stated that there was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion. There was no evidence of pain on examination, pain on use or localized tenderness. The examiner stated that there was no pain on passive motion or non-weightbearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examiner noted that there was no further loss of range of motion after repetitive testing, and estimated that the testing results were consistent with the Veteran’s reports of functional loss during flare-ups, thus indicating there was no further loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). The examiner noted that the Veteran has weakened movement as well, but that there was no evidence of ankylosis or loss of use of the finger. There is no evidence that the above examiners were either not competent or credible. Further, each examiner based their assessment of the severity of the disability on both the Veteran’s reports of his symptoms and their severity, as well as objective examinations of the index finger. The Board notes that the required testing for pain and estimates of loss of motion during flare-ups were not provided in the March 2011 and February 2017 examinations. However, the necessary testing and estimates were provided in the September 2020 VA examination, thus curing this deficiency. As such, the Board finds that each respective examination report is entitled to probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records reflect on-going treatment for right hand pain, as well as additional complaints of swelling, stiffness and tenderness. However, the records contain no further range of motion testing of the right index finger. Based on the foregoing, the Board finds that an increased rating of 10 percent, but no higher, is warranted prior to February 9, 2017. While the evidence of record reflects that prior to February 9, 2017, the Veteran did not have limitation of motion of the index finger which warranted a compensable rating, the evidence does reflect that the Veteran reported painful motion of the finger and the March 2011 examiner further noted the presence of pain and tenderness in the MCP joint. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful joints as entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. Further, as noted objective evidence of painful motion is not required. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015).  Here, there is both lay and medical evidence prior to February 9, 2017, which reflects pain and tenderness at the first MCP joint. Further, the Diagnostic Code applicable to the index finger provides for a compensable rating, unlike other Diagnostic Codes governing the other digits of the hand. See Sowers v. McDonald, 27 Vet. App. 472, 478–80 (2016). While it also provides for a noncompensable rating, the regulations are clear that painful motion is to be recognized as entitled to the minimal compensable rating allowed under the Diagnostic Code, which in this case would be 10 percent. Id. As such, the Board finds that at 10 percent rating based on painful motion of the right index finger is warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5229. AN increased rating in excess of 10 percent is not warranted at any point during the period on appeal, as the 10 percent rating currently assigned if the maximum allowable based on limitation of motion of the index finger. As the maximum allowable rating has been assigned, an increased rating is not possible. 38 C.F.R. § 4.3, 4.7, 4.71a, Diagnostic Code 5229. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence of loss of use of the right index finger. 38 C.F.R. § 4.71a, Diagnostic Code 5156. Further, the Veteran’s disability has been only noted to affect the right index finger, and therefore rating by analogy to other Diagnostic Codes for the digits of the hand is not appropriate in this case. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015). There is no evidence of involvement of other fingers of the right hand, ankylosis, or arthritis involving two of more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5216 to 5227. While there is evidence of weakened movement of the right index finger, this weakness has been attributed to the osteoarthritis, and its effect on the functioning of the right index finger is fully contemplated by the currently assigned rating. 38 C.F.R. § 4.59. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evidence of record reflects that an increased rating of 10 percent, but not higher, prior to February 9, 2017, for the right index finger disability is warranted. However, the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran’s right index finger disability at any point during the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.