Citation Nr: 21069497 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-26 843 DATE: November 18, 2021 ORDER An initial compensable disability rating for residuals of left index finger gunshot wound with retained shrapnel to include limitation of motion and weakness (left index finger disability) is denied. FINDING OF FACT Since August 27, 2010, the Veteran's left index finger disability demonstrated with occasional pain on range of motion testing, less movement than normal, occasional reduced grip strength, a gap of less than 2.5 cm between his index finger and thumb or long finger, and recently diagnosed degenerative arthritis of the left hand. CONCLUSION OF LAW Since August 27, 2010, the criteria for an initial compensable disability rating for a left index finger disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1962 to November 1968. The procedural history of this claim is outlined in the August 2014, January 2016, and November 2019 Board of Veterans' Appeals (Board) remands. Most recently, the case was remanded in November 2019 for evidentiary development. All actions ordered by the remand have been accomplished. In a September 2019 rating decision, the regional office (RO) awarded service connection for traumatic neuropathy of the Veteran's left index finger as a separately compensable residual of his left index finger disability. Increased Ratings Disability ratings are determined by applying 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 two evaluations should 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 disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 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. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). 1. Entitlement to an initial compensable disability rating for residuals of left index finger gunshot wound with retained shrapnel to include limitation of motion and weakness (left index finger disability) The Veteran's service-connected left index finger disability has been evaluated as noncompensable since August 27, 2010, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5229. The Veteran is right-hand dominant. Under DC 5229 for limitation of motion of the index of longer finger for either the major or minor hand, a noncompensable rating is warranted with 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 to no more than 30 degrees. A 10 percent rating is warranted with 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. DCs 5216 through 5223 provide additional criteria exist for unfavorable or favorable ankylosis of multiple digits that include the index finger. Under DC 5225 for ankylosis of the index finger, unfavorable or favorable ankylosis of the index finger for both the major and minor hand warrants a 10 percent rating. The Board must also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 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 and proximal interphalangeal 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 metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. 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. For evaluation of ankylosis of the index, long, ring, and little fingers: (i) If both the metacarpophalangeal and proximal interphalangeal 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 proximal interphalangeal joint or proximal thereto; (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the metacarpophalangeal or proximal interphalangeal 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, evaluate as unfavorable ankylosis; (iv) If only the metacarpophalangeal or proximal interphalangeal 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, evaluate as favorable ankylosis. DC 5010 directs that traumatic arthritis substantiated by x-ray findings should be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 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, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating, and x-ray evidence of involvement of 2 or more major joints or 2 more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent rating. Id. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. at Note 1. At a March 2011 VA medical examination, the Veteran reported continued stiffness and a lack of full strength in his left index finger. He denied the disability resulted functional or occupational impact. He endorsed difficulty closing a baseball glove and that his index finger joint hurt when a baseball hits the glove. He also reported a prior surgery to remove some of the shrapnel. On physical examination, the Veteran's left index finger did not demonstrate redness, increased warmth, or effusion. The gunshot wound scar was nontender, superficial, and did not demonstrate adherence to or interference with motion of function of the underlying soft tissue. The examiner noted no evidence of synovitis nor tenderness to palpation. The Veteran was able to forcefully oppose the left index fingertip with his thumb to make the "okay sign" with good pincer strength. He was also able to forcefully oppose the left index fingertip to his palmar crease when making a fist. Range of motion (ROM) testing revealed distal interphalangeal (DIP) joint flexion from zero to 45 degrees; proximal interphalangeal (PIP) joint flexion from zero to 70 degrees; and metacarpophalangeal (MCP) joint flexion from zero to 90 degrees. The examiner noted these ROM limitations were due to stiffness rather than pain. The examiner noted the Veteran demonstrated normal strength and dexterity in his left index finger for pushing, pulling, grasping, and twisting, with normal grip strength of the left hand and normal interosseus strength against resistance with no evidence of palmar or dorsal hand muscle atrophy. Imaging indicated evidence of an old, healed fracture deformity of the proximal phalanx of the second digit with multiple tiny foreign bodies of metallic density. The examiner remarked the Veteran's left index finger joint did not demonstrate limitation of motion due to pain, weakness, stiffness, or fatigability on repetitive motion testing. At a July 2015 VA medical examination, the Veteran reported his left index finger did not fully close into a tight fist and that this resulted in difficulty with grasping things. The Veteran denied flareups but described functional impairment as difficulty grasping objects with his left hand. Left hand index finger ROM testing revealed MCP flexion from zero to 75 degrees; PIP flexion from zero to 90 degrees; and DIP flexion from zero to 60 degrees to zero. The Veteran's left long finger demonstrated MCP flexion from zero to 70 degrees; PIP flexion from zero to 95 degrees; and DIP flexion from zero to 70 degrees. The examiner noted no gap between the Veteran's thumb and fingers, and a 1 cm. gap between the Veteran's finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted the Veteran's left hand did not demonstrate pain on ROM testing and that there was no objective evidence of tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional functional loss or loss of ROM after three repetitions. Although the examination was not conducted immediately after repetitive use over time, the examiner noted the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner noted that the Veteran's left-hand deformity was an additional contributing factor to the Veteran's left index finger disability. Left-hand muscle strength testing and grip testing were normal, and no finger on the Veteran's left hand demonstrated ankylosis. The examiner noted the functional impact of the Veteran's left index disability included weakness with carrying heavy items and difficulty maintaining a forceful grip. The examiner remarked that the Veteran's retained shrapnel caused increased tenderness and sharp burning sensation with deep pressure against the joint which resulted in the Veteran releasing his grasp on the object. The examiner opined it was not possible to further separate the symptomatology caused by the shrapnel from the symptomatology caused by the fracture residuals of the joint. Imaging conducted after the examiner revealed tiny metallic foreign bodies at the base of the proximal phalanx of the index finger with chronic deformity at the base of the proximal phalanx of the second digit and at the head of the second MCP bone that was compatible with an old injury and was mildly symptomatic. The examiner noted no appreciable acute osseous or adjacent soft tissue abnormality. In an August 2016 addendum, the same March 2011 and July 2015 VA examiner noted that based on his review of the Veteran's VA medical examinations and imaging, there was no evidence that the Veteran's retained shrapnel resulted in any symptomatology separate from loss of motion in his index finger nor that the retained shrapnel resulted in any symptomatology regarding the Veteran's left thumb. At an April 2018 VA medical examination for peripheral nerve conditions, the VA examiner diagnosed the Veteran with traumatic neuropathy of the first and second digits of the left hand. The Veteran reported flareups of sharp burning pain near the left-hand DIP. He has been service-connected for mild incomplete paralysis of the radial nerve of a minor extremity as a separate residual of his left index disability with a rating of 20 percent disabling effective August 27, 2010. At an April 2018 VA medical examination for hand and finger conditions, the examiner diagnosed the Veteran with residuals of a gunshot wound to the left index finger and thumb with retained shrapnel. The Veteran denied flareups and reiterated that the functional impairment of his left index finger disability included incomplete range of motion and that he could not fully flex his left thumb and index finger. ROM testing indicated left index finger MCP flexion from zero to 80 degrees; PIP flexion from zero to 100 degrees; and DIP flexion from zero to 70 degrees. In addition, ROM testing indicated left thumb MCP of zero to 90 degrees flexion and IP flexion from zero to 80 degrees. The examiner noted no gap between the Veteran's thumb and fingers, and no gap between the Veteran's finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted no pain on examination, and that the Veteran's abnormal ROM did not contribute to functional loss. The Veteran's left index finger did not demonstrate objective evidence of localized tenderness or pain on palpation nor evidence of pain with use of his left hand. Repetitive use testing did not result in additional functional loss. Although the Veteran was not examined immediately after repetitive use over time or during a flareup, the examiner noted he could only speculate as to whether pain, weakness, fatigability, or incoordination significantly limited the functional ability of the Veteran's left index finger with repeated use over time or during a flareup because there was no conceptional or empirical basis for making a determination without directly observing the finger's function under these conditions. The examiner noted that less movement than normal was a contributing factor to the Veteran's disability. The Veteran's left-hand grip demonstrated normal strength, and no left hand joint demonstrated ankylosis. The examiner noted no functional impact of the Veteran's left index finger disability. Imaging indicated degenerative or traumatic arthritis in his left hand as well as shrapnel. The examiner remarked the Veteran did not demonstrate objective evidence of pain on passive ROM testing; during non-weight bearing; and that the opposing joint was undamaged and demonstrated no examination abnormalities. In a separate April 2018 addendum opinion, the examiner noted that the Veteran's retained shrapnel resulted in no tenderness nor additional symptomatology other than loss of movement of his index finger and did not result in any symptomatology of his left thumb. At a February 2020 VA medical examination, the Veteran endorsed dull aching pain with palpation that during a flareup would increase to a feeling of an electric shock. The Veteran described the functional impact of his left index finger disability as difficulty maintaining a grip, pain during flareups, and that repetitive use of the left hand would result in flareups. ROM testing revealed left index finger MCP flexion from zero to 75 degrees; PIP flexion from zero to 90 degrees; and DIP flexion from zero to 60 degrees. The Veteran's left long finger ROM testing revealed MCP flexion from zero to 70 degrees; PIP flexion from zero to 95 degrees; and DIP flexion from zero to 70 degrees. The Veteran's left thumb ROM testing revealed MCP flexion from zero to 100 degrees; and IP flexion from zero to 90 degrees. The examiner noted a gap between the pad of the thumb and his finger of 1 cm, and a gap between the index and long finger of 1.5 cm. The examiner noted that the Veteran's decreased ROM by definition indicated decreased function. The examiner also noted that the Veteran demonstrated pain on ROM testing during finger flexion and extension and when testing opposition with his thumb, and that this pain caused functional loss. The examiner also noted evidence of pain with use of the left hand and that the Veteran's left hand demonstrated tenderness to palpation with sharp electric shock pain at the MCP joint. The examiner noted the Veteran was able to perform repetitive use testing with no additional functional loss or loss of ROM after three repetitions. Although the Veteran was not examined immediately after repetitive use over time, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also noted that pain, but not weakness, fatigability, or incoordination, significantly limited functional ability with repeated use over time and described the functional loss in terms of ROM of left index finger MCP flexion from zero to 40 degrees; PIP flexion from zero to 45 degrees; and DIP flexion from zero to 30 degrees. With regards to functional loss of the Veteran's long finger after repetitive use over time, the examiner noted long finger MCP flexion from zero to 40 degrees; PIP flexion from zero to 50 degrees; and DIP flexion from zero to 35 degrees. The examiner noted a gap between the pad of the thumb and the fingers of 1.5 cm, and a gap between the finger and proximal transverse crease of the hand on maximal finger flexion of 1.5 cm for the Veteran's index finger and long finger. The examiner also noted that although the Veteran was not examined during a flareup, the examination was medically consistent with the Veteran's statements describing functional loss during a flareup and that pain was the contributing factor to his functional loss. In terms of ROM, the examiner noted the same ROM results to describe functional loss during flareups as after repetitive use over time. The examiner noted that less movement than normal and weakened movement due to peripheral nerve damage were additional contributing factors to the Veteran's left index finger disability. The Veteran's left hand demonstrated slightly reduced muscle strength, but no ankylosis of any left-hand digit. Imaging indicated retained shrapnel; chronic deformity; and degenerative or traumatic arthritis of the left hand, but no arthritis in any of his left-hand digits. The functional impact of the Veteran's left index finger disability included reduced grip strength; flareups of electric shock-type pain during flareups; and flareups during repetitive use. The Veteran described additional functional loss as difficulty with buttoning his shirt, engaging his zippers, or tying his shoes. The examiner remarked the Veteran's left hand demonstrated pain with weight bearing and non-weight bearing; and pain with passive and active ROM. The examiner noted the Veteran's report of multiple flareups a day; that his flareups lasted approximately two to three minutes; and that his left index finger ROM was reduced by approximately 50 percent with repetitive use over time or during flareups. At a February 2021 VA medical examination for hand and finger conditions, the Veteran reported painful palpation and decreased range of motion for his left index and long fingers. The Veteran did not endorse flareups but endorsed functional impairment of difficulty lifting weight over 20 pounds. ROM testing revealed left index finger MCP flexion from zero to 80 degrees; PIP flexion from zero to 80 degrees; and DIP flexion from zero to 60 degrees. All other digits demonstrated normal ROM. The examiner noted no gap between the Veteran's left thumb and fingers, nor between the finger and the proximal transverse crease of the hand on maximal finger flexion for both the index and long finger. The examiner noted no pain on examination; that the Veteran's abnormal ROM did not contribute to functional loss; no objective evidence of localized tenderness or pain on palpation; and that the Veteran did not demonstrate pain with use of his left hand. The Veteran performed repetitive use testing with no functional loss or additional loss of ROM after three repetitions, and did not endorse pain, fatigue, weakness, lack of endurance, or incoordination. Although the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flareups, the examiner noted that pain, fatigue, weakness, lack of endurance or incoordination did not significantly limit the functional ability of his left index finger with repeated use over time or during flareups. The examiner noted no additional contributing factor to the Veteran's left index finger disability. The Veteran's left hand demonstrated normal grip strength and no ankylosis of the hand or any left-hand digit. Imaging indicated degenerative or traumatic arthritis of the left hand to include thumb and fingers and retained shrapnel. The examiner noted the Veteran's arthritis and retained shrapnel was responsible for the Veteran's reduced ROM and strength in his left hand and digits. The functional impact of his left index finger disability included inability to lift over 20 pounds; difficulty with normal grip; and difficulty typing. The examiner remarked the Veteran's left hand demonstrated no objective evidence of pain on passive ROM nor when the joint was used in non-weight bearing. Since August 27, 2010, the Veteran's left index finger disability demonstrated with occasional pain on range of motion testing, less movement than normal, occasional reduced grip strength, a gap of less than 2.5 cm between his index finger and thumb or long finger, and recently diagnosed degenerative arthritis of the left hand, and warrants a noncompensable rating. A higher rating is not warranted because the Veteran's left index finger disability did not demonstrate painful motion attributable to his reduced range of motion or otherwise not attributable to his traumatic neuropathy disability; ankylosis of his left hand nor any left-hand digit; nor limited extension of his left index finger. (continued on next page) Given these facts, the preponderance of the evidence is against the claim for an increased rating and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.