Citation Nr: 21063909 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-42 406 DATE: October 18, 2021 ORDER Entitlement to a compensable disability rating for the Veteran's service connected right little finger ankylosis for the period prior to August 15, 2019, and in excess of 10 percent, thereafter, is denied. For the period on appeal, a separate 10 percent, but no higher, rating for limitation of motion of the thumb, right hand, is granted. From August 15, 2019, a separate 10 percent, but no higher, rating for peripheral neuropathy of the right upper extremity, is granted FINDINGS OF FACT 1. The Veteran's right little finger ankylosis more closely approximated the criteria for a noncompensable disability rating for the period prior to August 15, 2019, and most closely approximated the criteria for a 10 percent disability rating thereafter. 2. For the period on appeal, the Veteran's right little finger ankylosis has been manifested by limitation of motion of the thumb with a gap of 2.5 to 5.1 cm between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 3. From August 15, 2019, the Veteran's right little finger ankylosis has been manifested by peripheral neuropathy with mild incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a compensable disability rating for the Veteran's service connected right little finger ankylosis for the period prior to August 15, 2019, and in excess of 10 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5156, 5227, 5230. 2. The criteria for establishing entitlement to a separate 10 percent, but no higher, rating for limitation of motion of the thumb, right hand, for the period on appeal are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5228. 3. From August 15, 2019, the criteria for establishing entitlement to a separate 10 percent, but no higher, rating for peripheral neuropathy of the upper right extremity ulnar nerve, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). Transcripts from the hearing are associated with the claims file. When this case was last before the Board in May 2019, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with an examination to address the current severity of his service-connected right little finger disability. The Veteran was provided with appropriate examinations. As such, the Board finds that the AOJ substantially complied with the directives in the May 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria 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 there is a question as to which of the 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Right Little FingerLegal Criteria The record shows that the Veteran is right-handed, and as such, his right hand is dominant for rating purposes. 38 C.F.R. § 4.69. Under Diagnostic Code 5230, a noncompensable evaluation is warranted for any limitation of motion of the ring or little finger. Under Diagnostic Code 5227, a noncompensable evaluation is warranted for unfavorable or favorable ankylosis of the ring or little finger. With ankylosis, consideration is also 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 the overall function of the hand. See Note to 38 C.F.R. § 4.71a, Diagnostic Code 5227. 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. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MCP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (1). For evaluation of ankylosis of the index, long, ring, and little fingers, if both the MCP and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at PIP joint or proximal thereto. If both the MCP and PIP joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. If only the MCP or PIP joint is ankylosed, and there is a gap of more than two inches (5.1 centimeters) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. If only the MCP or PIP joint is ankylosed, and there is a gap of two inches (5.1 centimeters) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note (3). Under Diagnostic Code 5156, a 10 percent evaluation is warranted for amputation of the little finger, without metacarpal resection, at the PIP joint or proximal thereto. A 20 percent evaluation is warranted for amputation of the little finger with metacarpal resection (more than one half the bone lost). See 38 C.F.R. § 4.71a, Diagnostic Code 5156. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard the Board notes that the rating criteria regarding the fingers was unchanged by the February 7, 2021 amendments. Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a compensable evaluation is not warranted for the Veteran's right little finger ankylosis for the period prior to August 15, 2019, nor is a rating in excess of 10 percent warranted thereafter. The Veteran's VA medical treatment records document that he has a trigger finger deformity with his right hand 5th digit, but does not document any treatment for the severity of his right little finger condition. The Veteran was afforded a December 2012 VA Hand Conditions examination during which the examiner diagnosed him with ankylosis of the right little finger PIP joint. There was a gap of 1 to 2 inches between the pad of the thumb and fingers and a gap of 1 inch or more between the right little finger and proximal transverse crease of the hand on maximal finger flexion. The examiner found that the Veteran experienced functional loss due to his right little finger. Pain was not noted during the examination. There was ankylosis of the PIP, and the examiner noted that ankylosis did not result in limitation of motion of other digits or interfere with the overall function of the hand. The Veteran reported difficulty with grip and grip strength; and the examiner reported 4/5 hand grip strength. During his April 2019 Board hearing, the Veteran reported that he experienced functional loss in his right hand and believed his right little finger disability had worsened since his last VA examination. In response to the Board's May 2019 Remand, the Veteran was afforded an August 2019 VA Hand and Finger Conditions examination. The examiner noted symptoms of pain, ankylosis, and decreased mobility. Further, the Veteran reported having an impaired gripping ability. For the right little finger, range of motion was recorded as 20to 60 degrees in the MCP joint, 20 to 60 degrees in the PIP joint, and 20 to 60 degrees in the DIP joint. The examiner noted the Veteran experienced pain on flexion and noted that the Veteran's pain causes functional loss. Pain was noted to occur in weightbearing and non-weight bearing, and the passive range of motion was noted to be the same as active range of motion. The examiner documented a 4 cm gap between the pad of the thumb and the Veteran's fingers; however, indicated there was no gap between the finger and the proximal transverse crease. Hand grip strength was measured as 4/5, and there was no muscle atrophy. Ankylosis in full flexion was noted in both the MCP and PIP joints of the right little finger with both rotation and angulation of the bone noted. The VA examinations both found limited motion of the right little finger. Nevertheless, under Diagnostic Code 5230, a compensable evaluation is not available for limitation of motion of the little finger. In addition, a compensable evaluation is not warranted under Diagnostic Code 5227. Under that diagnostic code, favorable or unfavorable ankylosis of the little finger is noncompensable. The Veteran's ankylosis found during the VA examinations is noncompensable, and the ankylosis has not been shown to have resulted in limitation of motion of other digits or interference with the overall function of the hand. As such, a compensable evaluation is not warranted for the period on appeal prior to August 15, 2019. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the right little finger disability is not warranted on the basis of functional loss due to pain or weakness, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluation, and no higher. While 38 C.F.R. § 4.59 indicates that painful motion of a joint should be recognized by a rating equivalent to at least the minimum compensable rating for the joint, the rating schedule does not provide for a compensable evaluation for any limitation of motion of the little finger joint. See Sowers v. McDonald, 27 Vet. App. 472 (2016). However, for the period beginning August 15, 2019, the Board notes that the Veteran's right little finger ankylosis warranted a 10 percent disability rating under Diagnostic Code 5156, for single finger amputation. As noted above, for the evaluation of ankylosis of the little fingers, if both the MCP and PIP joints of a digit are ankylosed, and is in full flexion, or there is rotation or angulation of a bone, then the finger is to be evaluated as amputation without metacarpal resection, at PIP joint or proximal thereto. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note (3). Under Diagnostic Code 5156, a 10 percent evaluation is warranted for amputation of the little finger, without metacarpal resection, at the PIP joint or proximal thereto. Therefore, given that the August 2019 VA examination was the first evidence in the record which documented the Veteran's right little finger as being ankylosed in both the PIP and MCP joints, the Veteran is entitled to a 10 percent rating from the date of this exam. The Veteran is not entitled to a higher disability rating under any other applicable diagnostic codes, as the evidence fails to show interference with other fingers, or amputation of the right little finger with metacarpal resection. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disabilities entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Based on the foregoing, the Board finds that the weight of the evidence is against a compensable evaluation for the Veteran's right little finger ankylosis for the period prior to August 15, 2019, and for a disability rating in excess of 10 percent for the period thereafter. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). Separate Diagnostic Codes The Board has considered whether any other Diagnostic Code could afford the Veteran a higher or separate rating during this period. First, the Board has considered whether a separate rating under Diagnostic Code 5228, which evaluates limitation of motion of the thumb, would be available. This Diagnostic Code provides a 10 percent rating where there is a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. As noted above, the December 2012 VA examination, reflected a gap of 1 to 2 inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Additionally, the August 2019 VA examination documented a gap of 4 cm between the right thumb pad and the fingers. The Board finds the evidence is at least in equipoise that the Veteran has experienced a gap of 2.5 to 5.1 cm between the thumb pad and the fingers, with the thumb attempting to oppose the fingers throughout the period on appeal. As such, the Board resolves any reasonable doubt in the Veteran's favor and concludes that he is entitled to a separate 10 percent rating under Diagnostic Code 5228 throughout the appeal. This provision allows for a higher 20 percent rating where there is 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. However, even when considering functional loss due to pain, fatigue, and weakness, the evidence does not more nearly approximate there being 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, as the greatest gap shown was 4 cm. Thus, the preponderance of the evidence is against a rating in excess of 10 percent under Diagnostic Code 5228 throughout the period on appeal. Next, the Board has considered whether any separate ratings for any neurological impairment in the right hand is warranted as the Veteran reported at the August 2019 examination that he experienced numbness in the service-connected right little finger. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition and that no symptom is improperly compensated twice. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994); Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017). The Veteran was afforded an August 2019 Peripheral Nerve Conditions VA examination. The examiner diagnosed the Veteran with right ulnar neuropathy. The Veteran reported that he had numbness, tingling, and sharp pain. The examiner documented that the Veteran experienced symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. The Veteran's muscle strength was normal, there was no muscle atrophy, deep tendon reflexes were normal, and a sensory exam showed only decreased sensation to light touch in the right hand/fingers. There were no trophic changes attributable to the peripheral neuropathy. The examiner characterized the Veteran's condition as mild incomplete paralysis of the right ulnar nerve and related this condition to the Veteran's service connected right little finger. Based on this evidence, the Board concludes that the neurological symptoms in the Veteran's right hand are related to the Veteran's service-connected right little finger ankylosis, and that a separate rating for these symptoms is warranted. Paralysis of the ulnar nerve is rated according to the criteria of Diagnostic Code 8516, which provides that complete paralysis of the dominant hand, as manifested by the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened warrants a 60 percent rating, severe incomplete paralysis warrants a 40 percent rating, moderate incomplete paralysis warrants a 30 percent rating, and mild incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8516. As explained above, from August 15, 2019, the musculoskeletal signs and symptoms of the Veteran's service connected right little finger involve pain and limited motion in the little finger and the thumb. The symptoms associated with the Veteran's neuropathy of the right upper extremity include mild paresthesias, dysesthesias, and numbness. Therefore, the Board finds that granting a separate rating for the Veteran's neuropathy of the right upper extremity does not constitute impermissible pyramiding and approximates symptoms contemplated under 38 C.F.R. § 4.124a, Diagnostic Code 8516 for diseases of the ulnar nerve. See 38 C.F.R. § 4.14. Here, the competent medical evidence from the August 2019 and VA examinations reflects that signs and symptoms of ulnar nerve neuropathy, including mild paresthesias, dysesthesias, and numbness, most nearly approximate mild incomplete paralysis. In examining the evidence, the Board finds that the signs and symptoms manifested reflect no more than mild incomplete paralysis of the ulnar nerve, and a 10 percent, but no higher, separate rating under Diagnostic Code 8516 from August 15, 2019, is warranted. In summary, the evidence is at least in equipoise that the Veteran's right-hand disability is entitled to separate 10 percent, but no higher, ratings based on: 1) limitation of motion of the thumb throughout the period on appeal; and 2) for the period beginning August 15, 2019, peripheral neuropathy. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.