Citation Nr: 21063325
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 16-43 441
DATE: October 13, 2021

ORDER

Entitlement to service connection for a low back disability is granted.

Entitlement to a rating in excess of 10 percent for residuals of fracture of fourth and fifth metacarpals, right hand with osteoarthritis, is denied. 

FINDINGS OF FACT

1. The Veteran's low back disability is etiologically related to service. 

2. The Veteran's right-hand disability manifested in pain, some limitation of motion, and decreased grip strength. 

CONCLUSIONS OF LAW

1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304.

2. The criteria for an evaluation in excess of 10 percent, for a right-hand disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5299-5223.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the U.S. Army, on active duty from April 1968 to April 1971. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal from August and December 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified at a hearing before a Decision Review Officer in May 2016. The Veteran requested a hearing before a Veterans Law Judge in a December 2016 statement; he withdrew his request in September 2021. The hearing request is withdrawn. 38 C.F.R. §20.704. 

1. Entitlement to service connection for a low back condition

The Veteran contends that his low back injury began during service from an injury sustained while riding in a truck that hit a large hole in Vietnam. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Further, service connection may be granted for any disease diagnosed after discharge when all of the evidence, including evidence pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to prevail on a service connection claim, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304 (b).

When no preexisting condition is noted at the time a Veteran enters service, the presumption of soundness arises, and he is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the veteran's disability preexisted his entrance into service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304 (b).

In this case, a low back condition was not noted at the time of acceptance and enrollment into active service. Moreover, the Board notes that the Veteran made a statement in March 1971, that he first injured his low back when he played football in high school. However, he made later statements, including in May 1971, December 2012 and August 2016 associating his low back condition as beginning in service. The Board notes that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466 (1995); see also Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). Accordingly, the Board finds, on the basis of the available evidence, that the Veteran's low back condition did not clearly pre-exist active service, and therefore the presumption of soundness attaches. 

Next, the Board finds that the evidence demonstrates that the Veteran's low back condition was aggravated during active-duty service. 

The Board notes the negative evidence, including June 2013 and April 2019 VA examinations. The June 2013 examiner opined, not only that his low back condition predated service, but it was not aggravated during that time either. Specifically, that the Veteran's records do not indicate a worsening or increase in severity of his symptoms. The April 2019 examiner opined against service connection, stating that the Veteran's in-service injury of a low back "sprain" in 1970 generally resolves itself over time. However, during his separation physical in March 1971, he reported back pain with difficulty getting out of bed that increased in the "past 3 to 4 months." Moreover, in a statement submitted to VA in December 2012, a friend of the Veteran stated he has complained of back pain "for years" since he first met him in the early 1970s. 

Accordingly, the Board finds that the evidence is in relative equipoise to support service connection for the Veteran's low back condition. 

Increased Rating

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski,1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. However, "where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, "[w]here 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." 38 C.F.R. § 4.7.

2. Entitlement to a rating in excess of 10 percent for residuals of fracture of fourth and fifth metacarpals, right hand with osteoarthritis

The Veteran seeks a rating in excess of 10 percent for residuals of a right-hand disability. Unfortunately, the Board finds that a rating in excess of 10 percent for the Veteran's right-hand disability is not warranted. 

Service connection for residuals of the right fourth and fifth metacarpal (ring and little fingers, respectively) injury was granted in a May 1971 Rating Decision. In this decision, the RO assigned a 10 percent rating effective April 30, 1971, under Diagnostic Code (DC) 5299-5223. As the Veteran has been in receipt of this rating for more than 20 years, his 10 percent rating is protected under 38 C.F.R. § 3.951. 

The Veteran claimed entitlement to an increased rating in a statement received in February 2012. The record reflects that the Veteran is right-hand dominant. 

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for a disability of the musculoskeletal system rated by analogy to disabilities involving favorable ankylosis of multiple digits. 

Diagnostic Code 5223 governs favorable ankylosis of two digits. For the dominant hand, a 10 percent evaluation is assigned for favorable ankylosis affecting the long and ring fingers, the long and little fingers, or the ring and little fingers. A 20 percent evaluation is assigned for favorable ankylosis affecting the index and long fingers, the index and ring fingers, or the index and little fingers. A 30 percent evaluation is assigned for favorable ankylosis affecting the thumb and any finger.

The normal range of motion for the second through fifth digits (the index, long, ring, and little fingers) is zero degrees in extension, 90 degrees in flexion at the metacarpophalangeal (MCP) joint, 100 degrees in flexion at the proximal interphalangeal (PIP) joint, and 70 degrees in flexion at the distal interphalangeal (DIP) joint. For the first digit (the thumb), the normal range of motion is zero degrees in extension, 100 degrees in flexion at the MCP joint, and 90 degrees in flexion at the interphalangeal (IP) joint.

Turning to the evidence of record, the Veteran's symptoms do not merit a rating in excess of 10 percent.

The Veteran underwent a VA examination in May 2012 to determine the severity of his disability. He reported flare-ups of his right hand and arthritis, which caused him to be unable to grip tools. While a gap of less than one inch was noted between his right thumb pad and fingers, there was no limitation of motion for his right thumb or any fingers. Gaps of less than one inch were noted for his right index and long fingers, while a gap of greater than one inch was observed for his right ring and little fingers. The Veteran had incoordination, less and weakened movement of his right index, long, ring and little fingers. Moreover, he had pain on movement of his right index and long fingers. His right-hand grip was measured as 4 out of 5, however, no ankylosis was noted. The functional impact of his right finger residuals was reported as the decreased ability to grasp small objects.   

Next, the Veteran underwent a VA examination in October 2015. Here, he reported decreased range of motion, grip strength and knuckles on his fourth and fifth metacarpals. He had normal extension and normal flexion in the metacarpophalangeal (MCP) joint in each finger. While he had a measured decrease in flexion of his proximal interphalangeal (PIP) joint in his right little and ring fingers, the other two fingers and thumb had normal PIP range of motion measurements. Likewise, he showed decrease flexion at his distal interphalangeal (DIP) joint in his right little and ring fingers but had normal DIP flexion in his remaining fingers and thumb. Despite a small gap of 1 centimeter gap between the fourth and fifth metacarpals forming, there was no evidence of hand pain or localized tenderness. After performing repetitive use testing, the physician observed no additional function loss. His right-hand grip had a noticeable decrease in strength, with a measurement of 3 out of 5. Further, the examiner observed favorable ankylosis of the Veteran's right ring and little fingers, at the MCP and PIP joints in full flexion, resulting in reduced grip strength and function of the right hand. 

In April 2019, the Veteran underwent another VA examination to determine the severity of his right finger residuals. The physician continued his diagnosis of residuals of the fourth and fifth right metacarpals, as well as degenerative arthritis of the same. He reported difficulty in gripping the right hand and doing any fine motor work. Slight decreased range of motion was observed in the MCP and PIP joints of the right little, ring, long and index fingers. However, flexion of the DIP joint was normal, as was the thumb. The physician observed gaps of 2 centimeters or less between the pad of the thumb and the fingers, and the finger and proximal transverse crease. These gaps resulted in difficulty in gripping, however no pain was noted. No additional functional loss was observed after repetitive use testing. Although his right-hand grip was measured at 4/5, there was no ankylosis of his right-hand fingers observed. 

The VA examinations of record, during the period on appeal, reflect that the Veteran's service-connected right fourth and fifth metacarpals have had a decreased range of motion. Further, the October 2015 VA examiner noted joints in the Veteran's right fingers to be favorably ankylosed. However, as the Veteran is service connected for only his fourth and fifth (ring and little) fingers, with favorable ankylosis, a maximum 10 percent rating is warranted. 

Reviewing the record as a whole, the Board finds that the balance of the record is consistent with and supportive of the findings and conclusions of the VA examiners over the claim period, with these examinations reflecting minimal, non-impairing hand or finger disability when the Veteran was first examined in May 2012, but slightly more disability when the Veteran was examined in October 2015, and lowered impairment in April 2019. 

The Board has also considered the Veteran's statements and medical treatment records. The record includes a May 2012 x-ray that indicates degenerative joint changes of the 2nd, 3rd, and 4th metacarpal phalangeal joints, and a September 2012 private treatment note where the Veteran complained of right-hand pain. The Board notes that the Veteran is service-connected for his right fourth and fifth metacarpals only. As the record does not show that the Veteran's right fourth and fifth metacarpals have been unfavorably ankylosed, a rating in excess of 10 percent is not warranted.  

The Veteran has been assigned a 10 percent disability rating for his right-hand condition based on disability equivalent to favorable ankylosis of the ring and little fingers (fourth and fifth fingers) of the right hand since 1971. The most recent examiners in October 2015 and April 2019, have found that disability would be equivalent to some limitation of motion of the fourth or fifth fingers, and have found associated pain and cramping affecting use of the hand gripping. While the May 2012 and April 2019 examiners found no ankylosis, which would result in a non-compensable rating for those periods, the Veteran's 10 percent rating, as discussed above, has been in effect for more than 20 years and is protected by law. 

The Board has also considered evaluating the Veteran's right-hand disability under other diagnostic codes as well, but none will afford the Veteran a higher rating. Limitation of motion of the fingers is governed by DCs 5228 through 5230, which contemplate limited motion of the thumb (DC 5228), the index or long finer (DC 5229), and the ring or little finger (DC 5230). The evidence here shows some limitation of motion of both fingers at different points throughout the appeal period. Diagnostic Code 5230 only provides for a noncompensable evaluation for limitation of motion of the ring and little finger. Rating the disability under DC 5228 would not yield a higher evaluation, as this diagnostic code considers limitation of motion resulting in a gap between the thumb and finger pads, which is demonstrated at the May 2012 and April 2019 examinations. However, these gaps were measured to be less than one inch and result in a noncompensable rating. Further, although the May 2012 VA examination indicated a gap of more than inch between the fingertips and the proximal transverse crease of the palm, as contemplated by DC 5229, this diagnostic code provides for a maximum of 10 percent rating, so a higher evaluation is not available.

The Board has considered evaluations under the other codes governing ankylosis. Diagnostic Codes 5224 through 5227 consider ankylosis of individual digits, and include a note that directs consideration be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand when ankylosis is present. Here, combining two such evaluations would not result in a higher rating, as the Veteran's ring and little fingers are involved in the disability, which each would only render a noncompensable evaluation under DC 5227; when combined with an evaluation for favorable ankylosis of any other digit, the highest available rating is 10 percent. Further, the functional impairment shown in the record, both by clinical findings and the Veteran's own statements, is decreased grip strength, and not the inability to use one or more digits. Thus, the Board does not find that the evidence of record approximates ankylosis of any digit of the right hand, nor is rating by analogy to amputation appropriate.

Because of the finding of degenerative arthritis in the Veteran's right hand, the Board has also considered evaluation under DC 5003, which allows for a 20 percent rating where there is involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a minor joint group. 38 C.F.R. § 4.45(f). However, the record does not reflect occasional exacerbations causing incapacitation of the right hand. 

Finally, the Board has also considered whether the service-connected scars of the right hand warrant a compensable evaluation in order to compensate for decreased grip strength in the right hand. The record does not reflect the scars are painful or unstable, or that the scars have contributed to functional loss in any way, such as by limiting motion in the hand. Therefore, an increased evaluation for the right-hand scars is not warranted.

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his right-hand disability is worse than reflected in his current rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who examined him during the current appeal and rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that ratings in excess of that awarded is not warranted.

Based on the evidence of record, the Board determines that an increased rating for the Veteran's right-hand residuals of the fourth and fifth metacarpals is not warranted. Accordingly, the appeal is denied.  

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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald