Citation Nr: 21066496 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-29 852 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right hand is denied. FINDING OF FACT Throughout the entire appellate period, the evidence shows that the Veteran's degenerative joint disease of the right hand resulted in limited motion of multiple major (dominant) hand joints; however, the preponderance of the evidence shows that the Veteran's degenerative joint disease has not resulted in a gap of more than two inches (5.1 cm.) between the thumb pad and fingers or ankylosis in any fingers or occasional incapacitating exacerbations in the absence of limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for degenerative joint disease of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1968 to January 1970. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. The hearing transcript is of record. The Board remanded the claim in May 2019 for further development by the RO. The case has been returned to the Board for further appellate action. The June 2014 Rating Decision assigned a non-compensable rating for the Veteran's right hand degenerative joint disease, effective February 11, 2014. The December 2018 Supplemental Statement of the Case assigned a 10 percent rating for the Veteran's right hand degenerative joint disease, effective February 11, 2014, as there was a clarification of section 4.59 since the RO's prior decision. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher rating for right hand degenerative joint disease remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). The Veteran's degenerative joint disease of the right hand is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5229, which pertains to limitation of motion of the index finger or the long finger. DC 5229 provides for a noncompensable rating for limitation of motion of the index or long finger if there is a gap of less than one inch (2.5 cm.) 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; and for a highest rating of 10 percent if there is 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 with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. DC 5230 provides that any limitation of motion of the ring or little finger is noncompensable. 38 C.F.R. § 4.71a, DC 5230. Furthermore, DC 5228 provides that limitation of motion of the thumb of the major hand with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers is noncompensable; 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, warrants a 10 percent rating; and 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 warrants a highest rating of 20 percent. 38 C.F.R. § 4.71a, DC 5228. Favorable or unfavorable ankylosis of the ring or little fingers is noncompensable. 38 C.F.R. § 4.71a, DC 5227. Favorable or unfavorable ankylosis of the index or long fingers warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5225, 5226. Favorable ankylosis of the major thumb warrants a 10 percent rating and unfavorable ankylosis of the major thumb warrants a highest rating of 20 percent. 38 C.F.R. § 4.71a, DC 5224. Favorable ankylosis of two digits of the major hand warrants a 10 percent rating for the long and ring; long and little; or ring and little fingers. Favorable ankylosis of two digits of the major hand warrants a twenty percent rating for the index and long, index and ring, or index and little fingers. Favorable ankylosis of two digits of the major hand warrants a 30 percent rating for the thumb and any finger. 38 C.F.R. § 4.71a, DC 5223. Favorable ankylosis three digits of the major hand warrants a 20 percent rating for the long, ring, and little fingers. Favorable ankylosis of three digits of the major hand warrants a 30 percent rating for the index, long, and ring; index, long, and little; or index, ring, and little fingers. Favorable ankylosis of three digits of the major hand warrants a highest rating of 40 percent for the thumb and any two fingers. 38 C.F.R. § 4.71a, DC 5222. Favorable ankylosis of four digits of the major hand warrants a 40 percent rating for the index, long, ring and little fingers and a highest rating of 50 percent for the thumb and any three fingers. 38 C.F.R. § 4.71a, DC 5221. Favorable ankylosis of five digits of the major hand warrants a highest rating of 50 percent. 38 C.F.R. § 4.71a, DC 5220. Unfavorable ankylosis of two digits of the major hand warrants a 20 percent for the long and ring or long and little or ring and little fingers; a 30 percent for the index and long or index and ring or index and little fingers; and a highest rating of 40 percent for the thumb and any finger. 38 C.F.R. § 4.71a, DC 5219. Unfavorable ankylosis of three digits of the major hand warrants a 30 percent rating for the long, ring and little fingers. Unfavorable ankylosis of three digits of the major hand warrants a 40 percent rating for the index, long, and ring fingers; the index, long, and little fingers; or the index, ring, and little fingers. Unfavorable ankylosis of three digits of the major hand warrants a highest rating of 50 percent for the thumb and any two fingers. 38 C.F.R. § 4.71a, DC 5218. Unfavorable ankylosis of four digits of the major hand warrants a 50 percent rating for the index, long, ring and little fingers; and a highest rating of 60 percent for the thumb and any three fingers. 38 C.F.R. § 4.71a, DC 5217. Unfavorable ankylosis of five digits of the major hand warrants a highest rating of 60 percent. 38 C.F.R. § 4.71a, DC 5216. 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 0 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. 38 C.F.R. § 4.71a, DCs 5216-5230, Note (1). When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 38 C.F.R. § 4.71a, DCs 5216-5230, Note (2). 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, this will be evaluated as amputation without metacarpal resection, at PIP joint or proximal thereto. If both the MCP and PIP joints of a digit are ankylosed, this will be evaluated 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 cm.) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, this will be evaluated as unfavorable ankylosis. If only the MCP or PIP joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, this will be evaluated as favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5216-5230, Note (3). If there is limitation of motion of two or more digits, each digit will be evaluated separately, and the evaluations will be combined. 38 C.F.R. § 4.71a, DCs 5216-5230, Note (5). DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; and a highest rating of 20 percent is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The 10 and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003, Note (1). The Veteran underwent a VA examination in May 2014. The examiner noted that the Veteran's right hand is the dominant hand. The examiner also noted a diagnosis of right hand degenerative joint disease. The Veteran reported no flare-ups, but did report daily pain, weakness and decreased fine manipulation skills. The examiner noted limitation of motion or painful motion in the long, ring, and little fingers of the right hand. Regarding the ability to oppose the thumb, the examiner noted that pain begins at a gap of one to two inches (2.5 to 5.1 cm.). Regarding finger flexion, the examiner noted no gap between the fingertips and proximal transverse crease of the palm but did note painful motion beginning at a gap of less than one inch (2.5 cm.) affecting the right long and little fingers. The Veteran was able to perform repetitive-use testing. The examiner noted functional loss and functional impairment; namely, weakened movement, excess fatigability, and pain on movement for the long, ring and little fingers. The examiner also noted pain on palpation on the right long, ring and middle fingers. The examiner noted no right hand ankylosis. The examiner also noted imaging studies of the hand, which showed right hand degenerative arthritis; and that prior diagnostic results in the record confirmed the diagnosis. The Veteran underwent a second VA examination in November 2019. The examiner noted a diagnosis of right hand degenerative joint disease. The examiner noted that the Veteran reported pain, numbness and limitation of motion in the first three fingers when recounting his medical history. The Veteran also reported that due to pain, he is unable to wipe himself after toileting and has difficulty writing and using utensils. The Veteran reported no flare-ups. The examiner noted an abnormal range of motion for all fingers of the right hand. Most notably, the extension of the index finger was 30 degrees for the DIP joint and normal for the PIP and MCP joints. The extension of the long finger was normal. The flexion of both MCP and PIP joints as well as the PIP joint extension of the thumb were abnormal. The examiner noted no gaps between the pad of the thumb and finger or between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted that the Veteran exhibited suboptimal effort during range-of-motion testing. The examiner also noted that abnormal range of motion contributes to function loss. Pain was also noted on the examination as causing functional loss, namely, upon finger flexion. The examiner noted evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, namely, mild aching pain of the right thumb, index and long fingers. The Veteran was able to perform repetitive-use testing and there was no additional functional loss after three repetitions. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. The examiner noted an additional factor contributing to the disability, a right hand deformity consisting of a fusiform swelling of the MCP joint of the right index finger. The examiner noted no right hand ankylosis. The examiner noted imaging studies of the hand, which showed right hand degenerative arthritis. The examiner noted a prior X-ray in the record showing osteoarthritis in the PIP joints, which are related to the diagnosed condition. The Board finds that this examination adequately addresses functional loss and that the Veteran retains greater range of motion than warrants a 20 percent rating or higher. While the Veteran has limited motion of his right thumb, there is no gap of more than two inches (5.1 cm.) between the thumb pad and fingers, with the thumb attempting to oppose the fingers. Therefore, a 20 percent rating under DC 5228 is not warranted. Both examiners determined that the Veteran does not have ankylosis of any of the right fingers. Therefore, a 20 percent rating or higher under DCs 5216-5224 is not warranted. Additionally, because the Veteran does not have occasional incapacitating exacerbations in the absence of a limitation of motion, a 20 percent rating under DC 5003 for degenerative arthritis is not warranted. The preponderance of the evidence weighs against a finding that there is any distinct period where the overall disability picture more nearly met the criteria for a rating higher than 10 percent. The Board has also considered the Veteran's lay statements on this matter. The Veteran testified in the February 2019 Board hearing that his long, ring and little fingers do not extend all the way and that he could not touch his palm with those fingers. The Veteran's representative argued that this appeared to constitute a favorable ankylosis. The Veteran further testified that he cannot hold items like a coffee cup or pill bottles, and that he has given up some recreational activities. The Board finds the Veteran is competent to report on his experience with limited motion and that his statements regarding these symptoms are credible. However, the Veteran is not competent to render a competent diagnosis of ankylosis. Moreover, VA and private treatment records do not indicate a diagnosis of ankylosis. The VA examinations of May 2014 and November 2019 explicitly determined that the Veteran does not have ankylosis. The evidence does not reflect motion that this tantamount to ankylosis. That is, the Veteran retains functional motion in this fingers/hand as documented in the clinical findings. The Board finds this evidence highly probative. Therefore, the Board finds that these examinations are more probative. In sum, the Board finds that a disability rating of 10 percent, but no higher, is warranted for the Veteran's right hand degenerative joint disease throughout the entire appellate period, effective February 11, 2014. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, Associate 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.