Citation Nr: 21069037 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-43 622 DATE: November 17, 2021 ORDER A disability rating in excess of 10 percent for right wrist arthritis is denied. A compensable disability rating for right long finger status post-metacarpal dorsal carpal boss excision is denied. A compensable disability rating for derotational osteotomy right fifth finger with internal fixation is denied. A disability rating in excess of 10 percent for right ring finger status post metacarpal dorsal carpal boss excision is denied. The previously assigned disability rating of 30 percent for right hand neuropathy is restored. An initial disability rating in excess of 30 percent for right hand neuropathy is denied. FINDINGS OF FACT 1. The Veteran has been assigned a combined disability rating for limitation of multiple major joints or minor joint groups in excess of 20 percent throughout the period on appeal, and the Veteran has been assigned a disability rating of 10 percent for arthritis of the right wrist throughout the period on appeal; and the Veteran did not manifest ankylosis of the right wrist throughout the period on appeal. 2. The Veteran has been assigned a combined disability rating for limitation of multiple major joints or minor joint groups in excess of 20 percent throughout the period on appeal, and the Veteran has been assigned a disability rating of 10 percent for fingers of the right hand throughout the period on appeal; and the Veteran did not manifest ankylosis of the fingers of the right hand throughout the period on appeal. 3. The Veteran has been assigned a combined disability rating for limitation of multiple major joints or minor joint groups in excess of 20 percent throughout the period on appeal, and the Veteran has been assigned a disability rating of 10 percent for fingers of the right hand throughout the period on appeal; and the Veteran did not manifest ankylosis of the fingers of the right hand throughout the period on appeal. 4. The Veteran has been assigned a combined disability rating for limitation of multiple major joints or minor joint groups in excess of 20 percent throughout the period on appeal, and the Veteran has been assigned a disability rating of 10 percent for fingers of the right hand throughout the period on appeal; and the Veteran did not manifest ankylosis of the fingers of the right hand throughout the period on appeal. 5. The Veteran's right hand neuropathy did not disclose an improvement. 6. The Veteran's right hand neuropathy did not manifest severe incomplete paralysis and complete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5214-5215. 2. The criteria for a compensable disability rating for right long finger status post-metacarpal dorsal carpal boss excision have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5216-5230. 3. The criteria for a compensable disability rating for derotational osteotomy right fifth finger with internal fixation have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5216-5230. 4. The criteria for a disability rating in excess of 10 percent for right ring finger status post metacarpal dorsal carpal boss excision have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5216-5230. 5. The criteria for reducing the Veteran's disability rating for neuropathy of the right hand from 30 percent to 20 percent have not been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105, 3.343, 3.344. 6. The criteria for a disability rating in excess of 30 percent for neuropathy of the right hand have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8514. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to July 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran indicated that the Veteran did not desire a personal hearing before the Board. This matter was previously before the Board, and, in May 2019, the Board remanded these matters for further development. Further development in substantial compliance with the Board's previous remand instructions has been completed. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. A disability rating in excess of 10 percent for right wrist arthritis is denied. At issue is whether the Veteran is entitled to an increased disability rating for arthritis of the right wrist. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran was first granted service connection for a right wrist disability and assigned a disability rating of 10 percent in December 1999. The Veteran filed an increased rating claim in December 2016, and, in April 2017, the RO denied the Veteran's increased rating claim. The Veteran appealed. Disability ratings for the wrist are assigned pursuant to Diagnostic Codes 5003, 5214, and 5215. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5214-5215. Diagnostic Code 5003 is not raised by the record. The maximum disability rating permitted under Diagnostic Code 5003 is 20 percent for limitation of motion of two major joints or minor joint groups. Nevertheless, the Veteran has already been assigned a combined disability rating in excess of 20 percent for limitation of multiple major joints or minor joint groups throughout the period on appeal. See June 2020 Rating Decision Code Sheet. Diagnostic Code 5214 (ankylosis of the wrist) is not raised by the record, because the Veteran had not manifested ankylosis of the wrist throughout the period on appeal. Finally, Diagnostic Code 5215 is not raised by the record, because the maximum disability rating permitted under Diagnostic Code 5215 is 10 percent; and the Veteran has already been assigned a disability rating of 10 percent throughout the period on appeal. See June 2020 Rating Decision Code Sheet. Therefore, the rating criteria do not provide an adequate basis for assigning the Veteran an increased disability rating. The Board is cognizant that it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness when evaluating disabilities of the musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202 (1995). When, as in this case, the Veteran has been assigned the maximum disability rating based on range of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating for a right wrist disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 10 percent for a right wrist disability is denied. 2. A compensable disability rating for right long finger status post-metacarpal dorsal carpal boss excision is denied. 3. A compensable disability rating for derotational osteotomy right fifth finger with internal fixation is denied. 4. A disability rating in excess of 10 percent for right ring finger status post metacarpal dorsal carpal boss excision is denied. At issue is whether the Veteran is entitled to increased disability ratings for the Veteran's finder disabilities of the right hand. The weight of the evidence indicates that the Veteran is not entitled to increased disability ratings. The Veteran was first granted service connection for the fingers of the right hand and assigned a noncompensable disability rating in December 1996. Thereafter, the Veteran was assigned a disability rating of 10 percent. In December 2016, the Veteran filed an increased disability rating, and, in April 2017, the RO continued the Veteran's disability rating of 10 percent and assigned two noncompensable disability ratings. The Veteran appealed. Disability ratings for the fingers are assigned pursuant to Diagnostic Codes 5003, 5216-5230. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5216-5230. Diagnostic Code 5003 is not raised by the record. The maximum disability rating permitted under Diagnostic Code 5003 is 20 percent for limitation of motion of two major joints or minor joint groups. Nevertheless, the Veteran has already been assigned a combined disability rating in excess of 20 percent for limitation of multiple major joints or minor joint groups throughout the period on appeal. See June 2020 Rating Decision Code Sheet. Diagnostic Codes 5216-5227 are not raised by the record, because these disability ratings require the Veteran to manifest ankylosis of the fingers; and the Veteran did not manifest ankylosis throughout the period on appeal. Diagnostic Code 5228 (limitation of motion of thumb) is not raised by the record, because the Veteran has not been granted service connection for the right thumb. Diagnostic Code 5229 is not raised by the record, because the Veteran the maximum disability rating under Diagnostic Code 5229 is 10 percent; and the Veteran has already been assigned a disability rating of 10 percent throughout the period on appeal. Finally, Diagnostic Code 5230 is not raised by the record, because the maximum disability rating is a noncompensable disability rating; and the Veteran has been assigned a disability rating of 10 percent throughout the period on appeal. Therefore, the rating criteria do not provide an adequate basis for assigning the Veteran an increased disability rating. As previously noted, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness when evaluating disabilities of the musculoskeletal system. See DeLuca. When, as in this case, the Veteran has been assigned the maximum disability rating based on range of motion, further DeLuca analysis is foreclosed. See Johnston. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating for fingers of the right hand. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 10 percent for disability ratings of the right hand is denied. 5. The rating reduction from 30 percent to 20 percent for right hand neuropathy is revered. 6. An initial disability rating in excess of 30 percent for right hand neuropathy is denied. At issue is whether the Veteran is entitled to an increased disability rating for neuropathy of the right hand. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 30 percent throughout the period on appeal. The Veteran first filed for service connection neuropathy of the right hand in December 2016, and, in April 2017, the RO granted service connection and assigned a disability rating of 30 percent effective the date the claim was received. The Veteran appealed. During the pendency of the appeal, the Veteran's disability rating was reduced to 20 percent effective January 16, 2020. Once a disability rating has been assigned, the substantive protections for that disability rating depend on the length of time that the Veteran had been assigned that disability rating. When as in this case the Veteran has been assigned a disability rating for less than five years, a disability rating may be reduced upon and adequate examination that discloses an improvement in the disability. 38 C.F.R. § 3.344 Typically, the RO must provide notice of an impending rating reduction by first issuing a rating decision proposing to reduce a disability rating and giving the Veteran 60 days to challenge this proposed action prior to any rating decision actually implementing a rating reduction. 38 C.F.R. § 3.105(e). Moreover, failure to abide by these notice requirements typically renders any such rating reduction void ab initio. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When as in this case however the Veteran's combined disability rating is not reduced by the reduction of an individual disability rating, then these due process requirements do not apply. Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). Disability ratings for neuropathy of the right hand is assigned pursuant to Diagnostic Code 8514. Under Diagnostic Code 8514, a disability rating of 20 percent is assigned for mild incomplete paralysis of the dominant hand, and a disability rating of 30 percent is assigned for moderate incomplete paralysis of the dominant hand. A disability rating of 50 percent is assigned for severe incomplete paralysis, and a 70 percent disability rating is assigned for complete paralysis. Complete paralysis is defined as follows: drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, Diagnostic Code 8514. The Veteran's right hand is the dominant hand. The Veteran's treatment records indicate that the Veteran manifested neurological symptoms throughout the period on appeal. The Veteran underwent a VA examination in January 2017. The Veteran reported the following right hand symptoms: numbness, pain, and cold sensitivity. The examiner indicated that the Veteran manifested mild paresthesias and/or dysesthesias and moderate intermittent pain and numbness. The examiner opined that the overall severity of neuropathy of the right hand was incomplete mild paralysis. The Veteran underwent a VA examination in January 2020. The Veteran reported that his right hand had gotten worse, and he explicitly identified pain as a symptom of the right hand. The examiner opined that the Veteran did not have any symptoms attributable to a peripheral nerve disability. The weight of the evidence indicates that the Veteran's disability rating should not have been reduced form 30 percent to 20 percent. Disability ratings less than five years old may only be reduced when a disability rating may be reduced upon and adequate examination that discloses an improvement in the disability. The Board has reviewed the January 2020 VA examination that indicates that the Veteran's disability has improved, and the Board cannot afford the examination much weight. Ultimately, the Veteran's previous disability rating was based on symptoms such as pain and numbness that the Veteran was uniquely qualified to testify to. During the January 2020 VA examination, the Veteran provided competent reports of continued pain, and the Veteran also reported that his symptoms had not only not improved but had increased in severity. The Veteran's lay reports are sufficiently persuasive to place a reasonable fact finder in a state of equipoise, and the tie must go to the Veteran. The Veteran is not entitled to a disability rating in excess of 30 percent throughout the period on appeal. In order to meet the criteria for a disability rating in excess of 30 percent, the Veteran needed to manifest severe incomplete or complete paralysis. The Veteran was examined multiple times throughout the period on appeal. The Veteran never reported and was never evaluated as having manifested severe incomplete paralysis or complete paralysis. The Veteran's symptoms were consistently evaluated as moderate, mild, or even non-existent. Therefore, the evidence of record is not sufficient to demonstrate that the Veteran is entitled to a disability rating in excess of 30 percent at any time during the period on appeal. Here, the weight of the probative evidence of record indicates that the Veteran is entitled to a disability rating of 30 percent throughout the period on appeal. Therefore, the evidence in this case is so evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the rating reduction from 30 percent to 20 percent is reversed, but the Veteran is not otherwise granted an increased disability rating for the right hand. The Board has considered whether or not the issue of a total disability rating due to individual unemployability (TDIU) has been raised by the record. The Board finds that it has not. In December 2016, the Veteran indicated that he was currently employed. The record is also silent for unemployment. Therefore, TDIU is not raised by the record. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.