Citation Nr: 21066968 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-32 137A DATE: November 3, 2021 ORDER TO VACATE The Motion to Reconsider the Board's November 24, 2020, decision is granted, and that decision is vacated. ORDER Entitlement to an initial evaluation greater than 10 percent for painful, limitation of motion due to arthritis of the right index finger (dominant extremity), as residual of gunshot wound, is denied. Entitlement to an initial evaluation greater than 10 percent for painful, limitation of motion due to arthritis of the right long finger (dominant extremity), as residual of gunshot wound, is denied. Entitlement to a compensable evaluation for painful, limitation of motion due to arthritis of the right ring finger (dominant extremity), as residual of gunshot wound, is denied. Entitlement to an initial compensable rating for painful, limitation of motion due to arthritis of the right little finger (dominant extremity), as residual of gunshot wound, is denied. Entitlement to a separate rating of 10 percent under Diagnostic Code 5003 based on x-ray evidence of degenerative arthritis in 2 or more minor joint groups (the right ring and little fingers), from October 11, 2013, to present, is granted. FINDINGS OF FACT 1. On November 24, 2020, the Board issued a decision. In December 2020, the representative filed a Motion for Reconsideration. 2. The Veteran has painful and limited motion due to arthritis of the right index and long fingers, both of which are rated at the maximum schedular rating for limitation of motion of those fingers. There is no ankylosis. 3. The Veteran has painful and limited motion due to arthritis of the right ring and little fingers, without ankylosis. CONCLUSIONS OF LAW 1. The November 24, 2020, Board Decision is vacated. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1000, 20.1001. 2. The criteria for a rating in excess of 10 percent for painful, limitation of motion due to arthritis of the right index finger (dominant extremity), as residual of gunshot wound, have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229. 3. The criteria for a rating in excess of 10 percent for painful, limitation of motion due to arthritis of the right long finger (dominant extremity), as residual of gunshot wound, have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229. 4. The criteria for a compensable evaluation for painful, limitation of motion due to arthritis of the right ring finger (dominant extremity), as residual of gunshot wound, 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. 5. The criteria for a compensable rating for painful, limitation of motion due to arthritis of the right little finger (dominant extremity), as residual of gunshot wound, 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. 6. The criteria for a separate 10 percent disability rating for traumatic arthritis with x-ray evidence of involvement of 2 or more minor joint groups (the right ring and little fingers) have been met, effective October 11, 2013. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes the Veteran has an appeal pending under VA's new appeals system - the Appeals Modernization Act (AMA) and he has requested a hearing before the Board. His appeal for an earlier effective date for the award of a total disability rating based on individual unemployability and entitlement to Chapter 35 benefits is pending scheduling of that hearing. Also, in VA's prior Legacy appeals system, the Veteran's attorney submitted a VA Form 9 in December 2019 in response to the November 2019 Statement of the Case concerning entitlement to service connection for sleep apnea and hearing loss. He also requested a hearing before the Board on those issues, and scheduling of that hearing will be done in the ordinary course of business. The Veteran served on active duty in the U.S. Army from November 1968 through November 1970. This appeal is before the Board of Veterans' Appeals (Board) from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). That decision was then appealed in a timely manner. The Veteran presented sworn testimony before the undersigned Veterans Law Judge during an October 2017 videoconference hearing. A transcript has been associated with the claims file. In November 2018, the Board remanded the Veteran's claims in order to obtain his VA treatment records and to schedule the Veteran for an examination to determine the current severity of his service-connected conditions. The examiner was instructed to specifically address any neurological complaints including numbness and burning sensations. The Veteran was afforded a VA examination for his hands and fingers in March 2019 and a peripheral nerves examination in August 2019. There was an additional peripheral nerves examination and a medical opinion given in August 2020. As a result, in August 2020, the RO granted service connection for right radial nerve peripheral neuropathy with an initial rating of 30 percent beginning August 2, 2019 and increased to 40 percent on July 31, 2020. The Veteran has not appealed those ratings, and those matters are not currently before the Board. The Board finds the RO substantially complied with the remand instructions and an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the August 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. The Veteran has not raised any specific duty to notify or duty to assist issues regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Further, the Board notes that additional evidence was associated with the claims file after the most recent SSOC addressing the claims on appeal was issued. However, as this evidence is not pertinent to the claims on appeal, the Board will proceed to adjudicate the claims as done below, with no prejudice to the Veteran. Order to Vacate the November 24, 2020, Board decision On November 24, 2020, the Board issued a decision denying increased ratings for the Veteran's service-connected right index finger, right long finger, right ring finger, and right little finger, and assigning a separate 10 percent evaluation, effective January 12, 2018, under Diagnostic Code 5003 for degenerative arthritis in 2 or more minor joint groups (the right ring and little fingers). The Board may vacate an appellate decision at any time upon request of an appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000, 20.1001. In December 2020, the Veteran's representative filed a Motion for Reconsideration of the December 2020 Board Decision regarding the January 12, 2018, effective date assigned for the grant of additional 10 percent rating under Diagnostic Code 5003, contending that an earlier effective date of October 11, 2013, should be assigned, as arthritis was found via imaging in the ring and little fingers in October 2013, at the time the claim on appeal was filed. In that regard, the Board finds that the Veteran was not afforded due process of law because the November 24, 2020, decision did not fully consider all relevant evidence in accordance with all applicable regulations. Therefore, the Board concludes that the decision must be vacated and herein will issue a new decision in its place. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 1. Entitlement to an initial evaluation greater than 10 percent for painful, limitation of motion due to arthritis of the right index finger (dominant extremity), as residual of gunshot wound The Veteran asserts that his current right index finger disability warrants a higher rating. Initially, the Board notes the Veteran is currently in receipt of the maximum rating available under Diagnostic Code (DC) 5229. Therefore, he cannot receive any higher rating under DC 5229. For the entire period on appeal, the Board finds the evidence supports a 10 percent rating for the Veteran's right index finger. The Veteran reported stiffness and locking, reduction in strength, pain in his index finger, and decrease in flexion, which were consistent with the objective findings throughout the appeal period (i.e., evidence of localized tenderness or pain on palpation of the joint associated soft tissue, 4/5 right hand grip, incoordination, reduction in muscle strength, and abnormal or outside of normal range of motion). He did not report any of these symptoms regarding his left index finger. See October 2013 VA Examination; September 2019 Private Disability Benefits Questionnaire; March 2019 VA Examination. Furthermore, while pain was noted on examination and was found to cause functional loss, the extent of the loss was a gap between the fingertip and the proximal transverse crease of the palm of 2 cm and an estimated 2.5 cm during a flare up, which is the criteria contemplated by his current rating of 10 percent under DC 5229. See March 2019 VA Examination. The Board considered the applicability of other DCs, but declines to evaluate the Veteran's service-connected disability under any of the diagnostic codes that pertain to favorable/unfavorable ankylosis (primarily DC 5216 through 5227), as there is no evidence of record demonstrating the presence of ankylosis in any finger. The Board also considered the assignment of schedular ratings in excess of those upheld or awarded herein based on consideration of any factors addressed in 38 C.F.R. § 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. To the extent that the Veteran has experienced functional loss due to pain, fatigability, incoordination, pain on movement, and weakness, these symptoms have been fully contemplated by the Veteran's assigned schedular rating. He is already receiving the maximum evaluation available for loss of range of motion of this finger, so a higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). In light of the above analysis, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent. 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. 2. Entitlement to an initial evaluation greater than 10 percent for painful, limitation of motion due to arthritis of the right long finger (dominant extremity), as residual of gunshot wound The Veteran asserts that his current right long finger disability warrants a higher rating. Initially, the Board notes the Veteran is currently in receipt of the maximum rating available under DC 5229. Therefore, he cannot receive any higher rating under DC 5229. For the entire period on appeal, the Board finds the evidence supports a 10 percent rating for the Veteran's right long finger. The Veteran reported stiffness and locking, reduction in strength, pain in his long finger, and decrease in flexion, which were consistent with the objective findings throughout the appeal period (i.e., evidence of localized tenderness or pain on palpation of the joint associated soft tissue, 4/5 right hand grip, incoordination, reduction in muscle strength, and abnormal or outside of normal range of motion). He did not report any of these symptoms for his left long finger. See October 2013 VA Examination; September 2019 Private Disability Benefits Questionnaire; March 2019 VA Examination. Furthermore, while pain was noted on exam and was found to cause functional loss, the extent of the loss it contributes was a gap between the fingertip and the proximal transverse crease of the palm of 2 cm and an estimated 2.5 cm during a flare up which is the criteria contemplated by his current rating of 10 percent under DC 5229. See March 2019 VA Examination. The Board considered the applicability of other DCs, but declines to evaluate the Veteran's service-connected disability under any of the diagnostic codes that pertain to favorable/unfavorable ankylosis (primarily DC 5216 through 5227), as there is no evidence of record demonstrating the presence of ankylosis in any finger. The Board also considered the assignment of schedular ratings in excess of those upheld or awarded herein based on consideration of any factors addressed in 38 C.F.R. § 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. To the extent that the Veteran has experienced functional loss due to pain, fatigability, incoordination, pain on movement, and weakness, these symptoms have been fully contemplated by the Veteran's assigned schedular rating. He is already receiving the maximum evaluation available for loss of range of motion of this finger, so a higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). In light of the above analysis, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent. 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. 3. Entitlement to a compensable evaluation for painful, limitation of motion due to arthritis of the right ring finger (dominant extremity), as residual of gunshot wound The Veteran's service-connected painful, limitation of motion due to arthritis of the right ring finger is currently assigned a noncompensable rating under DC 5230. This is the only rating available under this DC. During the entire period on appeal, the Veteran has asserted that his disability is more painful and severe than contemplated by a noncompensable disability rating. As stated above, the Veteran has undergone multiple VA examinations regarding his fingers. The Veteran exhibits painful motion in his ring finger, has a gap of one inch (2.5 cm) or more between his fingertip and the proximal transverse crease of the palm with additional limitation after three repetitions, weakened movement, excess fatigability, and incoordination. The Veteran has not reported any of these symptoms and has exhibited normal range of motion for his left ring finger. See August 2006 VA Examination; October 2013 VA Examination; September 2019 Private Disability Benefits Questionnaire; March 2019 VA Examination. However, regardless of the Veteran's symptoms, the rating schedule only provides a zero percent rating for any limited motion of the ring finger. There is no evidence of record demonstrating the presence of ankylosis, and, even if this finger were ankylosed, the rating schedule only provides a zero percent rating for such impairment. As there is no evidence of record demonstrating the presence of ankylosis in any finger, the diagnostic codes pertaining to ankylosis of multiple digits do not apply. The Board also considered the assignment of schedular ratings in excess of those upheld or awarded herein based on consideration of any factors addressed in 38 C.F.R. § 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran's attorney argues a compensable rating is warranted under 38 C.F.R. § 4.59 due to painful motion. The Board disagrees. The Court of Veterans Appeals (Court) directly addressed this point in Sowers v. McDonald, 27 Vet. App. 472 (2016), finding there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the ring and little finger. The Court further noted in Sowers that because DC 5230 provided no minimum compensable rating, this trumped the general intent of section 4.59 to account for actually painful joints, and that DC 5230 indicates that there is no reduction in earning capacity from a right ring finger disability, irrespective of impairment of motion. A compensable rating for a ring finger disability requires amputation, or the functional equivalent thereof. There is no evidence of record indicating that the Veteran has impairment near the level that would be considered equivalent of an amputation. In light of the above analysis, the Board finds the preponderance of the evidence is against a compensable rating as a compensable rating is not available under this DC. 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. 4. Entitlement to an initial compensable rating for painful, limitation of motion due to arthritis of the right little finger (dominant extremity), as residual of gunshot wound The Veteran's service-connected painful, limitation of motion due to arthritis of the right little finger is currently assigned a noncompensable rating under DC 5230. This is the only rating available under this DC. During the entire period on appeal, the Veteran has asserted that his disability is more painful and severe than contemplated by a noncompensable disability rating. As stated above, the Veteran has undergone multiple VA examinations regarding his fingers. The Veteran exhibits painful motion in his little finger, has a gap of less than one inch (2.5 cm) between his fingertip and the proximal transverse crease of the palm with additional limitation after three repetitions, weakened movement, excess fatigability, and incoordination. The Veteran has not reported any of these symptoms and has exhibited normal range of motion for his left little finger. See August 2006 VA Examination; October 2013 VA Examination; September 2019 Private Disability Benefits Questionnaire; March 2019 VA Examination. However, regardless of the Veteran's symptoms, the rating schedule only provides a zero percent rating for any limited motion of the little finger. There is no evidence of record demonstrating the presence of ankylosis, and, even if this finger were ankylosed, the rating schedule only provides a zero percent rating for such impairment. As there is no evidence of record demonstrating the presence of ankylosis in any finger, the diagnostic codes pertaining to ankylosis of multiple digits do not apply. The Board also considered the assignment of schedular ratings in excess of those upheld or awarded herein based on consideration of any factors addressed in 38 C.F.R. § 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran's attorney also argues a compensable rating is warranted under 38 C.F.R. § 4.59 due to painful motion. The Board disagrees. As noted above, the Court in Sowers found DC 5230 provided no minimum compensable rating for painful motion. A compensable rating for a little finger disability requires amputation, or the functional equivalent thereof. There is no evidence of record indicating that the Veteran has impairment near the level that would be considered equivalent of an amputation. In light of the above analysis, the Board finds the preponderance of the evidence is against a compensable rating as a compensable rating is not available under this DC. 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. 5. Entitlement to a separate rating of 10 percent evaluation under Diagnostic Code 5003 based on x-ray evidence of degenerative arthritis in 2 or more minor joint groups (the right ring and little fingers), from October 11, 2013 VA's rating schedule does provide a compensable rating where there is arthritis in a group of minor joints, with limitation of motion not otherwise compensable. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the bases of limitation of motion under the appropriate diagnostic codes, for the specific joint or joints involved. As discussed above, the limitation of motion of the index and long fingers has already been compensated. However, the rating schedule does not provide a compensable rating for limitation of motion of the ring and little fingers. When 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 a group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In this case, an October 11, 2013, VA x-ray report was taken of the Veteran's right hand, which noted that the Veteran had mild degenerative arthritis. Specifically, it was noted that there was mild degenerative arthritis of the distal interphalangeal joints and the interphalangeal joint of the thumb. X-rays of the Veteran's right hand were also ordered by his primary care provider in January 2018. A radiologist gave this report: There is mild degenerative arthritis of the first carpometacarpal and first metacarpophalangeal joints as well as the interphalangeal joint of the thumb and distal interphalangeal joints. See January 2018 VA Treatment Records. The Board notes that the October 2013 and the January 2018 x-ray results are essentially the same with regard to the findings of arthritis of the distal interphalangeal joints. The distal interphalangeal joints are the joints located before the fingernail begins. These reports do not specify which particular distal interphalangeal joints show arthritis; therefore, the Board will construe this report to mean that each distal interphalangeal joint has degenerative arthritis. Additionally, a VA examiner noted degenerative or traumatic arthritis present in multiple joints. See March 2019 VA Examination. As the Veteran's arthritis is shown in 2 or more minor joint groups with x-ray evidence, a 10 percent rating, but no higher, is warranted. The rating applies to the minor joint group, not the individual joints. The Veteran's entitlement to a separate rating of 10 percent under DC 5003 is effective October 11, 2013, which is the date arthritis was confirmed via imaging. The Board notes that a rating in excess of 10 percent is not warranted under Diagnostic Code 5003, as there is no medical evidence of record of incapacitating exacerbations with regard to the Veteran's fingers. Additionally, the Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). While the Board has reviewed the February 7, 2021, changes, the Board ultimately finds that these regulatory revisions are not pertinent to the claims on appeal, in that they do not provide any avenues for increased ratings for the Veteran's service-connected finger disabilities, other than those already assigned or contemplated under the previous diagnostic criteria. As the Veteran's representative specifically requested an effective date of October 11, 2013, for this grant of an increased rating in the December 2020 Motion for Reconsideration, the Board finds that this is a full grant of the Veteran's request with regard to the effective date assigned to this evaluation. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.