Citation Nr: 21070372 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-00 557 DATE: November 23, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease right hand, little finger, first metacarpal carpal joint with cystic changes ("right hand/little finger disability") is denied. FINDING OF FACT Throughout the appeal period, the Veteran's right hand/little finger disability manifested in painful motion, limitation of motion, loss of grip; notwithstanding the disability did not manifest in incapacitating exacerbations during any period. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for degenerative joint disease right hand, little finger, first metacarpal carpal joint with cystic changes ("right hand/little finger disability") have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5230-5003. REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the record does not illustrate consistent diagnoses related to neurological disorders of the right hand/finger. Specifically, there have been diagnoses of both neuropathy and radiculopathy. However, the Board finds that the totality of the record supports the conclusion that any symptoms of a neurological disorder are related to the Veteran's non-service-connected cervical radiculopathy and not to his service-connected right hand/finger disability. It also supports the conclusion that the non-service-connected cervical radiculopathy is not related to service, nor should it otherwise be separately rated. As such, the Board will focus its analysis as to whether a higher rating is warranted for the Veteran's service-connected right hand/finger disability, which has been diagnosed as degenerative joint disease with cystic changes. Therefore, although the Board recognizes the January 2021 VA Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ), the March 2021 VA addendum report, and the July 2021 VA Medical Opinion DBQ, these reports will not be discussed as they are not pertinent when assessing the level of severity of the Veteran's service-connected right hand/finger disability. As stated in the in the June 2021 Board remand, although the Veteran is separately rated for scar of the right hand, he withdrew his appeal for this claim during the October 2019 Travel Board hearing. The Veteran testified at a hearing before a Decision Review Officer at the RO in March 2017 and before the undersigned Veterans Law Judge in an October 2019 Travel Board hearing. Transcripts of both hearings have been associated with the file. The Board remanded this matter twice, in January 2020 and June 2021. As there has been substantial compliance with the directives, the Board will proceed with adjudicating the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria The Veteran is currently rated at 10 percent for his right hand/little finger disability. A 10 percent rating has been assigned under Diagnostic Codes 5230-5003, as the RO found there was painful motion or limited motion of a major joint or group of minor joints. During the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria as of February 7, 2021. With respect to the applicable Diagnostic Codes to the Veteran's right hand/little finger disability, Diagnostic Codes 5003 and 5010 were revised, not materially, and will be discussed below. Diagnostic Code 5230 was not revised and will be noted immediately below. Diagnostic Code 5230 addresses limitation of motion of the ring or little finger. Under Diagnostic Code 5230 the only rating permitted is a noncompensable rating for any limitation of motion for ring or little finger. A noncompensable (0 percent) rating is assigned for limited ring or little finger motion in either the major (dominant) or minor hand. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Criteria effective prior to the February 7, 2021 revision Diagnostic Codes 5003 and 5010 pertains to arthritis. Under Diagnostic Code 5003, the hand/finger disability may be rated under provisions for evaluating arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic 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 Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is 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, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Diagnostic Code 5010 refers to arthritis due to trauma, substantiated by x-ray findings. The code directs that traumatic arthritis be rated as degenerative arthritis (Diagnostic Code 5003). Id. Criteria effective from February 7, 2021 Diagnostic Code 5003 was revised to make clear that this code only applies to degenerative arthritis and not to post-traumatic arthritis. The 10 percent rating for non-compensable limitation of motion has now been removed. Diagnostic Code 5010 was revised to refer to post-traumatic arthritis and the instruction to rate as degenerative arthritis under 5003 was removed. Traumatic arthritis is now rated as "limitation of motion, dislocation, or other specified instability under the affected joint." Evidence A June 2016 VA Hand and Finger Conditions Disability Benefits Questionnaire (DBQ) reflects a 2016 diagnosis of degenerative joint disease of the right hand, little finger, first metacarpal, carpal joint with cystic changes. The Veteran's dominant hand is his right hand. He described flare-ups as extreme, constant pain, with frozen joints. He described the functional impairment as difficulty moving his hand or holding objects as it is painful and has limitations. Initial range of motion (ROM) was listed as abnormal or outside of normal range. The abnormal ROM contributed to functional loss and was described as holding objects. Pain was noted on examination and it caused functional loss. The ROM that exhibited pain was at finger flexion, finger extension, and opposition with thumb. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, at the right 5th finger and it was described as pain. He was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or ROM. The examination was performed during a flare-up, and pain was listed as the factor that caused the functional loss. The examiner stated that she was able to describe it in terms of ROM and listed the same ROM as provided in initial ROM. There was no muscle atrophy. Ankylosis of the little finger was indicated and stated as 20 degrees of flexion with no rotation or angulation of the bone. The ankylosis resulted in limitation of motion and was described as right-hand difficulty holding/grasping objects. Imaging studies of the hand were not performed. Impact on ability to perform occupational tasks was described as difficulty writing, holding, and grasping objects. The January 2021 VA Hand and Finger Conditions DBQ also reflects a diagnosis of degenerative joint disease of the right hand, little finger, first metacarpal joint with cystic changes (indicating the diagnosis date as January 2021), but also reflects a 2014 diagnosis of degenerative arthritis. The Veteran reported that the pain in his little finger of the right hand has gotten worse in the past 18 months. He reported not being able to grasp items longer than five minutes and not being able to open a jar. His symptoms were described as pain, weakness, tingling, and numbness. Flare ups were described as pain with grasping items for longer than 10 minutes, occurring daily, severity level as moderate-severe, lasting hours. Functional impairment was also described as unable to grasp items longer than 10 minutes. Initial ROM was listed as abnormal or outside of normal range. Pain was noted on examination and it caused functional loss. The ROM that exhibited pain was at finger flexion. There was evidence of pain with use of the hand. The objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was described as achy pain, moderate. He was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or ROM. The examination was not performed immediately after repeated use over time or during a flare-up. Pain was listed as the factor that caused the functional loss after repeated use and during a flare-up. The examiner stated that he was able to describe the ROM after repeated use and during flare-ups. The ROM for the little finger was decreased by 10 degrees at flexion of the MCP, the PIP and DIP. Hand grip was 4/5. There was no muscle atrophy or ankylosis of any finger on the right hand to include any joints of the little finger. Imaging studies were performed and showed degenerative or traumatic arthritis of the right hand. These studies were performed in June 2014. Impact on ability to perform occupational tasks was described as 0 to one week work time lost in the last 12 months, unable to open a jar or grasp items for periods greater than five minutes. There was objective evidence of pain on passive ROM and non-weight bearing. The examiner did not provide a signature on the report. The May 2021 VA Hand and Finger Conditions DBQ also reflects a diagnosis of degenerative joint disease of the right hand, little finger, first metacarpal joint with cystic changes (indicating the diagnosis date as May 2021). This report did not reflect a diagnosis of degenerative arthritis. Symptoms were described as pain, stiffness, cramping, and weakness. The Veteran reported that the pain in his right-hand little finger has gotten worse in the past 18 months. He described not being able to grasp items, type or write for extended periods of time. Flare ups were described as pain by grasping items, typing, and writing for extended periods of time, occurring daily, lasting hours with a severity level of moderate-severe. Functional impairment was also described as unable to grasp items, type and write for extended periods of time. Initial ROM was listed as abnormal or outside of normal range. The abnormal ROM did not contribute to functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The digit that exhibited pain was the little finger. He was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or ROM. The examination was performed immediately after repeated use over time and pain was listed as the factor that caused the functional loss. The examination was not performed during a flare-up; however, pain was listed as the factor that caused the functional loss. The examiner stated that she was able to describe the functional loss after repeated use as well as flare-ups in terms of ROM. The ROM for the little finger was decreased by 10 degrees at flexion of the MCP, the PIP, and DIP. There was a reduction in muscle strength, hand grip was 4/5. There was no muscle atrophy or ankylosis of any finger on the right hand to include any joints of the little finger. Imaging studies of the hand were not performed. The examiner stated that x-rays on the day of the exam were not clinically indicated. Impact on ability to perform occupational tasks was described as 0 to one week work time lost in the last 12 months, unable to grasp items, type and write for longer than five minutes without experiencing pain due to degenerative joint disease of the right hand, little finger first metacarpal carpal joint with cystic changes. The examiner did not provide a signature on the report. The July 2021 VA Hand and Finger Conditions DBQ also reflects a diagnosis of degenerative joint disease of the right little finger/hand (indicating the diagnosis date as 1986) but indicates an additional diagnosis of laceration of right hand, with the diagnosis date as 2014. Symptoms were described as pain, stiffness, throbbing, weakness, and twitching. The Veteran reported that the pain in his right-hand little finger had worsened in the past 18 months. He described not being able to grasp items for extended periods of time. Flare ups were described as being unable to open jars with his hand as his hand is weak and he is right-handed. He also described the flare-ups as occurring daily, the severity level as moderate-severe, and lasting hours. Functional impairment was also described as unable to open jars with his hand, as he is right-handed, and his hand is weak. Initial ROM was listed as abnormal or outside of normal range, but the ROM did not contribute to functional loss. The digits that exhibited pain were the index finger, long finger, ring finger and little finger. There was evidence of pain at weight-bearing, active motion, and passive motion, all of which caused functional loss. The functional loss was described as not able to open jars with his hand, and weak. The examiner specifically found that the Veteran's lack of sensation in his right hand and fingers was due to cervical radiculopathy and not right ulnar neuropathy. Of note, the Veteran is not in receipt of service connection for any cervical spine disability or associated radiculopathy. The examiner also found that due to the nature of his in-service injury, it is unlikely to lead to post-traumatic arthritis, but instead his right little finger had degenerative arthritis. He was able to perform repetitive use testing with at least three repetitions without additional loss of function or ROM. The examination was not performed immediately after repeated use over time or during a flare-up. Pain was listed as the factor that caused the functional loss during a flare-up. The examiner stated that he was able to describe the functional loss after repeated use as well as flare-ups in terms of ROM. The ROM for the little finger was decreased by 5 degrees at flexion endpoint of the MCP, the PIP, and the DIP. Hand grip was normal, 5/5. There was no muscle atrophy or ankylosis of any finger on the right hand to include any joints of the little finger. Imaging studies were not performed in conjunction with this examination. The examiner did note review of the June 2014 x-ray of the right hand showing cystic or cortical defect changes with narrowing. Impact on ability to perform occupational tasks was described as 0 to one week work time lost in the last 12 months, difficulty with gripping, carrying, pushing, pulling, and lifting items, as well as typing, writing, grooming, dressing, opening jars, doors, and knobs due to the pain, weakness, and stiffness of the hands due to degenerative joint disease of the right hand, little finger, first metacarpal carpal joint with cystic changes and laceration of right hand. The examiner did not provide a signature on the report. Analysis Upon review of the record, the Board finds that currently assigned rating for the right hand/finger disability is proper and therefore a higher rating is not warranted. First, the currently assigned 10 percent disability rating is warranted as the record shows functional loss due to painful motion under 38 C.F.R.§ 4.59. An increased rating of 20 percent is not warranted as the evidence does not show occasional incapacitating exacerbations of the Veteran's right hand/little finger disability. Throughout the appeal period he has consistently reported and shown objective pain on movement. There are times during the appeal period where the abnormal ROM did not contribute to functional loss, and other times where the examiners were able to provide ROM to explain functional loss and flare ups, which resulted in a decrease of the ROM anywhere between 5 and 10 degrees. These symptoms are all consistent with the currently assigned 10 percent disability rating. As discussed above the diagnostic code applicable to the Veteran's disability is Diagnostic Code 5230 and this code does not provide for compensable ratings. The evidence illustrates painful motion or limited motion of a major joint or group of minor joints throughout the course of the appeal, to include flare ups of pain, inability to grasp items, inability to write or type for extended periods of time, and functional loss due to painful motion. However, this is contemplated by the minimal compensable evaluation currently assigned. See 38 C.F.R.§ 4.59, Diagnostic Code 5003. Further, there is no possibility for a higher evaluation under the former or revised Diagnostic Codes 5003 or 5010. Diagnostic Code 5010 is not for application as the record does not show arthritis due to trauma prior to February 7, 2021 or post-traumatic arthritis as of February 7, 2021. Under both the criteria prior to February 7, 2021 and as of February 7, 2021, a higher rating is not warranted as there is no indication of occasional incapacitating exacerbations. The Board acknowledges that the examination reports do not specifically used the words "incapacitating exacerbations." However, a review of the record, to include all the Veteran's lay statements and reporting, do not show that his right hand/finger disability manifested in incapacitating exacerbations at any time during the appeal period. During the June 2016 VA examination he described his flare-ups as extreme constant pain, with frozen joints. This does not illustrate incapacitating exacerbations, let alone show that it was the Veteran's intent to report incapacitating exacerbations. Also, of note, despite reporting worsening pain during the three subsequent VA examinations, at worst he described his flare-ups as moderate-severe, and not severe or extreme. With respect to other diagnostic codes for disabilities of the hand, 38 C.F.R. § 4.71a, Diagnostic Codes 5228, 5229 are not applicable, as the record does not illustrate limitation of motion of the thumb or index or long finger. As such separate, or higher ratings under these codes are not warranted. Additionally, the evidence does not reflect that any right finger disabilities have resulted in amputation of a digit. Diagnostic Codes 5126 through 5156 provide ratings based on amputation of individual and multiple digits of the hand. The treatment records do not show any right thumb, index, middle, ring or little finger disabilities analogous to amputation. The Board finds that the right-hand/finger disability does not more nearly approximate amputation of any of the digits of the right hand. The Board recognizes that the June 2016 VA examination report reflects ankylosis of the little finger. However, regardless of whether this was described as unfavorable or favorable, the applicable diagnostic code of 5227 does not provide for a compensable rating. As such, a separate compensable rating, or a rating in excess of 10 percent for ankylosis of the little finger is not warranted. Also, all three VA examinations subsequent to June 2016 VA examination clearly illustrate that the Veteran's disability did not results in ankylosis. Additionally, the Veteran has not alleged ankylosis in any finger or thumb. The Board also recognizes that out of the four VA examinations performed during the period on appeal, only one of the examiners provided a signature for the report. While this practice is not encouraged, the Board finds that January 2021, May 2021, and July 2021 VA examination reports to be of probative value. There is nothing in the record or in the reports themselves to suggest that these examinations were inadequate. Additionally, neither the Veteran nor his representative have contended that the lack of signatures from the examiners renders their reports invalid. In arriving at this conclusion, the Board has carefully considered the Veteran's lay assertions and description of symptoms. However, he is not competent to assess the level of severity of his right hand/finger disability for rating purposes. The VA examinations far outweigh any contentions by the Veteran that a disability rating higher than 10 percent is warranted. The current evaluation of 10 percent incorporates consideration of the Veteran's statements regarding pain combined with a slightly reduced range of motion and functional impairment caused by flare-ups. As such, a rating higher than 10 percent is not warranted for painful motion. The Veteran reported flare-ups and the Board has considered that the rating assigned reasonably contemplates any flare-ups as may occur and is consistent with the spirit of Mitchell and Sharp. As the preponderance of the evidence is against the claim for an increased disability rating higher than 10 percent for the Veteran's right hand/finger disability, the benefit of the doubt doctrine is not applicable. As such, the claim is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.