Citation Nr: 21063781 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-17 645 DATE: October 15, 2021 ORDER A compensable rating for service-connected residuals of a fractured fifth metacarpal on the left hand, to include on an extraschedular basis is denied. FINDING OF FACT The Veteran's residuals of a fractured fifth metacarpal on the left hand are manifested by symptoms of mild pain, decreased grip strength, weakened movement, but no limitation of motion or gap, and no ankylosis. CONCLUSION OF LAW The criteria for a compensable rating for service-connected residuals of a fractured fifth metacarpal on the left hand, to include on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had active duty service in the Army from June 1981 to July 1981, and in the Texas National Guard from October 1979 to October 1982. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in March 2021, and remanded the issue for additional development. The case returned to the Board for further appellate review after the development was completed. 1. A compensable rating for service-connected residuals of a fractured fifth metacarpal on the left hand, to include on an extraschedular basis. The Veteran contends that his residuals of a fractured fifth metacarpal on the left hand are more severe than reflected by the current noncompensable rating assigned. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under DC 5230, a noncompensable disability rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5230. The rating schedule states that, as applicable to the ring finger, the metacarpophalangeal joint (MCP) has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of zero to 100 degrees of flexion and the DIP has a range of motion of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of 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 limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). 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 background 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 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. The Board finds that the preponderance of the evidence is against a noncompensable rating for residuals of a fractured fifth metacarpal on the left hand. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to mild pain, weakened grip of the nondominant hand, fatigability, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups significantly limited functional ability due to pain and fatigability would not result in symptoms beyond limitation of motion. The January 2015 VA examination showed mild stiffness and diminished grip in the left hand pinky finger. The Veteran did not report that flare-ups impact the function of the hand. There was no limitation of motion or gap on initial or repetitive use range of motion testing. There was functional loss due to weakened movement of the left pinky finger and thumb. The VA examiner noted that the left pinky finger weakness could significantly limit functional ability during flare-ups or when used repeatedly over a period of time. There was no tenderness or pain. Muscle strength testing was 4/5 for the left hand grip. There was no ankylosis. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices. The functional impairment of the left pinky finger was not so diminished that amputation with prosthesis would equally serve the Veteran. X-rays revealed arthritis in the left first and third fingers and a remote healed fracture and deformity involving the proximal left fifth metacarpal. The VA examiner found the Veteran's disability did not functionally impact his ability to work. The Veteran testified before the undersigned in January 2021. He endorsed pain and weakness, more so when the weather is cold. He said it does not hurt at all when there is hot weather. He explained that his left hand is weaker than his right due to the left pinky finger disability. The Veteran also stated that he has to be careful when using his left hand because he cannot grip items as easily due to the left pinky finger disability. The June 2021 VA examination showed the Veteran endorsed continued left pinky finger pain. He said he had a weaker grip in his left hand (non-dominant hand) and that flare-ups were alleviated by rest and over-the-counter NSAIDs. Physical examination revealed no loss of motion on active or passive range of motion. There was objective evidence of mild pain on passive range of motion. There was pain with weight-bearing and active range of motion that caused functional loss. An additional contributing factor to functional loss included weakened movement. Left hand grip was 4/5 with reduced muscle strength, but no muscle atrophy or ankylosis. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices. The functional impairment of the left pinky finger was not so diminished that amputation with prosthesis would equally serve the Veteran. X-rays revealed arthritis in the left first and third fingers and a remote healed fracture and deformity involving the proximal left fifth metacarpal. The VA examiner found the Veteran's disability functionally impacted his ability to work due to the inability to lift or carry more than five pounds with the left hand due to pain. Under DC 5230, a noncompensable rating is the maximum award for limitation of motion. The Board acknowledges the Veteran's reported symptoms including pain, difficulty carrying and lifting heavy loads, and problems gripping and grasping objects; however, under DC 5230, any level of limitation of motion of the fifth finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the fourth and fifth fingers). To the extent the Veteran contends that a 10 percent rating is warranted for the residuals of a fractured fifth metacarpal disability due to painful motion under 38 C.F.R. § 4.59; however, 38 C.F.R. § 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating. Instead, 38 C.F.R. § 4.59 employs conditional language that must be read in conjunction with the appropriate DC to be understood. See Sowers v. McDonald, supra. As noted above, under the criteria of DC 5230, any level of limitation of motion, even if accompanied by associated pain and functional loss, results in a noncompensable rating. Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted under DC 5230. Unlike other diagnostic codes, 38 C.F.R. § 4.71a, DC 5230, does not instruct that other DCs should be considered. The inclusion of criteria in one DC indicates that the Secretary's exclusion of that criteria elsewhere was purposeful. Some DCs include instructions for considering other DCs. DC 5227, addressing ankylosis of the ring or little finger, like DC 5230, lists only a noncompensable rating for ankylosis -- favorable or unfavorable. However, DC 5227 also includes a note allowing for a compensable rating when an evaluation as amputation is warranted or where impairment of the ring finger limits the motion of other digits or the hand as a whole. The other individual-finger-ankylosis DCs also include this note. DCs 5224 (thumb), 5225 (index finger), 5226 (long finger). Both DC 5002 and 5003 specifically provide that individual joints may be rated for limitation of motion under the appropriate DC for the specific joint or joints involved. Many of the intermediate-level criteria for prosthetic implants identify specific DCs that may be used for rating by analogy. DC 5230 does not include a note allowing consideration under other DCs. Thus, VA clearly expressed its determination that DC 5230 be the only DC applicable to a right ring finger disability based on limitation of motion and that limitation of motion of that ring finger does not warrant a compensable disability rating. See Sowers v. McDonald, supra. Moreover, although the evidence of record indicates a diagnosis of degenerative arthritis of the fifth digit, a rating of 10 percent under DC 5003 is also not warranted. DC 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. The code provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., DC 5228 to DC 5230), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, DC 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion. Here, the Veteran's left fifth metacarpal is not a major joint and the evidence does not demonstrate that this service-connected disability affects two or more minor joint groups. Indeed, only the metacarpal joint in the fifth digit is affected by arthritis. Findings of arthritis in other nonservice-connected digits cannot be considered along with the service-connected disabilities. Therefore, the weight of the evidence is against finding that the service-connected left fifth finger disability warrants consideration of a rating under DC 5003. As such, a minimum 10 percent disability rating under DC 5003 for limitation of motion is not warranted. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his residuals of a fractured fifth metacarpal on the left hand. The Veteran is competent to report symptomatology relating to his residuals of a fractured fifth metacarpal on the left hand to the extent it requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to identify a specific level of disability relating such to the appropriate DCs. To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Accordingly, the Board finds that the medical examination opinions and findings are of greater probative value than the Veteran's allegations regarding the severity of his residuals of a fractured fifth metacarpal on the left hand. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence does not indicate that the Veteran's residuals of a fractured fifth metacarpal on the left hand made him unable to secure or follow any substantially gainful occupation; therefore, the record does not raise the issue of unemployability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a compensable rating for residuals of a fractured fifth metacarpal on 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. The issue of consideration of an extraschedular rating was previously raised by the March 2021 Board remand. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director, Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's residuals of a fractured fifth metacarpal on the left hand is rated under Diagnostic Code 5230. The record shows that he has complaints and findings of mild pain, decreased grip strength, and weakened movement. Diagnostic Code 5230 does not specifically list all the Veteran's symptoms. Nonetheless, the Veteran's symptoms are reasonably similar to any level of limitation of motion, even if accompanied by associated pain and functional loss, which are contemplated under Diagnostic Code 5230. (Continued on the next page) Here, the Veteran's residuals of a fractured fifth metacarpal on the left hand manifestations are reasonably contemplated by Diagnostic Code 5230. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.