Citation Nr: 21065443 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-53 430 DATE: October 26, 2021 ORDER The rating reduction from 10 percent to noncompensable for the service-connected crush injury to right hand, limitation of long finger was not proper, and restoration of the 10 percent rating, effective August 1, 2015, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for the service-connected crush injury to the right hand, limitation of thumb is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected crush injury to the right hand, limitation of index finger is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected crush injury to the right hand, limitation of long finger is remanded. FINDING OF FACT The preponderance of the evidence did not demonstrate overall improvement in the service-connected crush injury to right hand, limitation of long finger. CONCLUSION OF LAW As the rating reduction to 0 percent for the service-connected crush injury to the right hand, limitation of long finger was not proper, the criteria for restoration of the 10 percent rating for the service-connected crush injury to right hand, limitation of long finger have been met, effective August 1, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Code 5309-5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy with active duty service from October 1988 to October 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from Regional Office (RO) rating decisions dated in March 2014 and May 2015. In the March 2014 rating decision, the RO continued the current 10 percent disability rating for crush injury to the right hand, limitation of thumb. The Veteran's notice of disagreement (NOD) was received in March 2014. The RO issued a statement of the case (SOC) in November 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2018. In the May 2015 rating decision, the RO reduced the Veteran's disability ratings for crush injury to the right hand, limitation of index finger from 10 percent to 0 percent and crush injury to the right hand, limitation of long finger from 10 percent to 0 percent, effective August 1, 2015. The Veteran's NOD was received in May 2015. The RO issued a SOC in November 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2018. During the pendency of the appeal, the RO issued a rating decision in February 2019 that restored the 10 percent disability rating for crush injury to the right hand, limitation of index finger, effective from August 1, 2015. This is considered a full grant of the benefits only with respect to the issue of whether the rating reduction for service-connected crush injury to right hand, limitation of index finger was proper. In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, as the appeal is being processed under the Board's "One Touch" program. 1. Whether the rating reduction for service-connected crush injury to right hand, limitation of long finger from 10 percent to 0 percent was proper. The Veteran submitted an increased rating claim for her service-connected crush injury to the right hand in April 2013. She underwent a VA examination in February 2014. As a result of the evidence obtained from the examination, RO reduced the Veteran's service-connected crush injury to right hand, limitation of long finger from 10 percent to 0 percent, effective August 1, 2015. The Veteran appealed this decision asserting that her symptoms of crush injury to right hand have not improved and have increased in severity. In general, prior to reducing a veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. When reduction in the rating of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). The RO complied with the procedures set forth in 38 C.F.R. § 3.105(e) and notified the Veteran of the proposed rating reduction, as well as her rights in challenging this proposed reduction, in a March 2014 rating decision and a letter dated in March 2014. The reduction was then assigned in a May 2015 rating decision, effective August 1, 2015. Thus, the notice requirements for a reduction of a disability evaluation are met. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, at the time the rating reductions took effect for the Veteran's service-connected crush injury to right hand, limitation of long finger the prior ratings were in effect for less than five years. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that duration of rating is measured from effective date of actual reduction). Thus, the various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, does not apply with respect to this reduction. VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Pursuant to these provisions, the RO and Board are required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. See Schafrath, 1 Vet. App. at 594 ("these requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition."). Finally, 38 C.F.R. § 4.10 establishes that "[t]he 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" and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993), see also Stern v. McDonough, 34 Vet. App. 51 (2021). A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. The Veteran's crush injury to right hand, limitation of long finger is evaluated under Diagnostic Code 5309-5228. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. The Board observes that in the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. In this case, the hyphenated diagnostic code indicates degenerative arthritis rated under 38 C.F.R. § 4.73, Diagnostic Code 5309, Group IX, which evaluates intrinsic muscles of the hand in delicate manipulative movement is the service-connected disorder and that the symptoms of limitation of motion of the long finger of the right hand is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229, which evaluates limitation of motion of index or long finger. Injury to the intrinsic muscles of the hand may be rated under the diagnostic code for muscle group VII or IX that control grasping and delicate manipulative movements. 38 C.F.R. § 4.73, Diagnostic Code 5307, 5309. In general, muscle group damage is categorized as slight, moderate, moderately severe and/or severe and evaluated accordingly under 38 C.F.R. § 4.56. With respect to Diagnostic Code 5309; however, different criteria apply. As indicated in that diagnostic code, Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Thus, injury to muscle group IX should be rated on limitation of motion, with a minimum 10 percent assigned. 38 C.F.R. § 4.73, Diagnostic Code 5309, Note. Regarding limitation of motion in the index or long finger under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a noncompensable rating is warranted if there is a gap of less than one inch (2.5cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; and extension is limited by no more than 30 degrees. A 10 percent rating is warranted when there is a gap of one inch (2.5cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or with extension limited by more than 30 degrees. Turning to the evidence of record, a June 2011 rating decision granted a 10 percent disability rating for crush injury to right hand, limitation of long finger, effective October 5, 2010 based on a November 2010 VA examination. The November 2010 VA examination shows that the Veteran reported that the extent of the injury to the right hand involved blood vessels, bone, nerve, crushed, and cut. The injury did not involve fascia. The Veteran reported constant aching and tingling pain in the fingers and hand. The pain is exacerbated by physical activity and when writing or using a knife. The Veteran described additional symptoms of tingling, stiffness, and problems gripping. She has difficulty trying to pinch fingers together including picking up coins, buttoning buttons, zipping up zipper. Regarding muscle injuries, the Veteran has loss of strength, weakness, easy fatigability, pain, impairment of coordination, and inability to control movement well. She is right hand dominant. The examiner determined that the muscle group involved is muscle group IX, intrinsic muscles. Muscle strength was graded 4. The muscle injury affects the particular body part function it controls by weakness. There was no muscle herniation. With the thumb attempting to oppose the fingers, the measurement between the pad of the right thumb and the long finger was 2.5 cm. The gap between the proximal transverse crease of the palm to the right hand long fingertip was 3 cm. Thereafter, the Veteran filed increased rating claims for her right hand crush injury in April 2013. Prior to the reduction in the May 2015 rating decision, a VA examination was performed in February 2014. The RO noted that the VA examination results show a diagnosed disability with no compensable symptoms. The RO noted that the Veteran provided written lay statements that the hand is worse, the pain is constant, and that she loses the strength to use her fingers. She has to use her left hand to eat meals and her fingers are too weak to even use nail clippers to trim her nails. The RO determined that the Veteran's written statements did not support a change in the prior decision to reduce the rating. The reduction of the Veteran's disability rating was based on this one examination. The February 2014 VA examination report shows that the Veteran reported that her middle finger moves slowly and has some limitation. The Veteran's symptoms included throbbing pain, tight feeling, radiating pain up the forearm, and weakness in the right hand. The Veteran reported that when she has a flare-up, she has difficulty griping, writing, typing, and lifting. Physical examination revealed that there was limitation of motion or evidence of painful motion for the long finger. There was no gap between the thumb pad and the long finger of the right hand. There was a gap less than 1 inch between the long finger and the proximal transverse crease of the palm. There was no objective evidence of painful motion. There was no limitation of extension or evidence of painful motion for the long finger. The examiner noted that there was no additional limitation of motion for any fingers after repetitive use testing. The Veteran did not have ankylosis of the thumb and/or fingers. The examiner determined that the Veteran's hand, thumb, or finger conditions impact her ability to work in that she has difficulty with gripping, lifting, writing, and typing. The findings from the February 2014 VA examination do not demonstrate, by a preponderance of the evidence, material improvement in the Veteran's service-connected crush injury to right hand, limitation of long finger. In this regard, there is no indication that the February 2014 VA examiner reviewed the claims file. Furthermore, the examiner did not address or reconcile any discrepancy in the range of motion tests from the November 2010 VA examination and the February 2014 VA examination. The examiner also did not address whether there was additional loss of motion of the long finger due to flare-ups or with repetitive use over time. Therefore, the reduction was based on a single, inaccurate VA examination report. See Schafrath, 1 Vet. App. at 594. Furthermore, the RO did not review or consider the entire recorded history of the condition in determining whether there was actual change in the disability. Specifically, the RO did not address whether the results from the March 2014 VA examination, as well as, the other medical and lay evidence of record at that time showed by the preponderance of the evidence that any decrease in severity of the Veteran's limitation of motion of the right long finger resulted in an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993), Stern v. McDonough, 34 Vet. App. 51 (2021). Based on the foregoing, the requirements for reduction of the disability rating for crush injury to right hand, limitation of long finger are not met, and as a result, a preponderance of the evidence does not support the reductions. Accordingly, the reduction from 10 percent to 0 percent for the Veteran's service-connected crush injury to right hand, limitation of long finger was not proper. The 10 percent disability rating for crush injury to right hand, limitation of long finger is therefore restored, effective August 1, 2015. Notably, the sole basis indicated for the reduction was a finding of material improvement, and as noted above, the preponderance of the most probative evidence of record is against a finding of material improvement in this case. The Veteran is competent to describe her observable symptoms in this regard, and there is no reason to question her credibility as to those observable symptoms of pain, weakness, and numbness in the right hand. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected crush injury to the right hand, limitation of thumb. 2. Entitlement to a disability rating in excess of 10 percent for service-connected crush injury to the right hand, limitation of index finger. 3. Entitlement to a disability rating in excess of 10 percent for service-connected crush injury to the right hand, limitation of long finger. Regarding the Veteran's increased rating claim for residuals of right hand crush injury, the Veteran underwent a VA examination for hand and finger conditions in February 2014. The Veteran was not provided with a VA examination that evaluated any potential neurological or muscle impairment. The Veteran's reported symptoms during the February 2014 VA examination include weakness in the right hand and difficulty with gripping and lifting. The Veteran testified at the October 2021 Board hearing that her right hand is very weak, that the fingers were severed and reattached during service, and she has significantly decreased grip strength due to weakness. She also reported frequent flare-ups of stiffness, pain, and decreased strength when she tries to write for a long period of time and/or when she tried to open jars, and/or lift heavy objects. These symptoms indicate that the residuals of the right hand crush injury may include impairment of the muscles and/or nerves in the right hand and fingers. Thus, a remand is warranted to determine whether separate ratings based on muscle and/or neurological impairment are warranted. In this regard, VA muscle and nerve examinations to include an EMG are warranted to accurately evaluate the nature and severity of the residuals of the service-connected crush injury of the right hand. Furthermore, since the February 2014 VA examination, the Court has held that 38 C.F.R. § 4.59 requires VA examination to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurement of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Court has held that that the examiner must "elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, she suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA examination, by a neurologist, if possible, to determine the current nature and severity of her crush injury of the right hand, including, but not limited to whether there is muscle injury and/or neurological impairment. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner and all necessary tests should be performed, including, but not limited to EMG and/or nerve conduction studies. All findings should be reported in detail. For orthopedic purposes, and to determine the current extent of any related muscle damage, the right hand and fingers should be tested in both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurement of the opposite undamaged joint. In this regard, the examiner should indicate whether the Veteran's limitation of motion is the functional equivalent of ankylosis. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). After reviewing all pertinent records associated with the claims file to include an EMG/NCV of the right upper extremity, and physically evaluating the Veteran, the examiner should describe any neurological impairment of the right hand associated with the service-connected crush injury of the right hand in detail, with the affected nerve(s) nerve(s) identified, and the impairment for each such nerve characterized as mild, moderate, severe, or complete paralysis and provide an explanation or rationale for such medical opinion. The examiner should also identify any manifestations of the Veteran's residuals of crush injury of the right hand as they specifically relate to Muscle Group VII and VIII individually. If the examiner determines that the crush injury of the right hand is manifested by injury to Muscle Group VII or VIII, then the examiner should describe the impairment for Group VII and/or Group VII and whether it is characterized as slight, moderate, moderately-severe, and severe. The examiner should explain whether the right hand weakness and/or decreased grip strength are manifestations of Muscle Group VII/VII injuries, neurological impairment, or both. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.