Citation Nr: 21073103 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-52 832 DATE: December 7, 2021 ORDER Entitlement to a rating higher than 10 percent for residuals of fractures, right ring finger and right little finger, is denied. Entitlement to a 10 percent rating, but no higher, for right thumb limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, from August 21, 2014 to July 1, 2021, is granted. Entitlement to rating higher than 10 percent for any time period on appeal for right thumb limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, is denied. Entitlement to a 10 percent rating, but no higher, for right long finger limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, from August 21, 2014 to July 1, 2021, is granted. Entitlement to rating higher than 10 percent for any time period on appeal for right long finger limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, is denied. FINDINGS OF FACT 1. The Veteran's residuals of fractures, right ring finger and right little finger, rated for favorable ankylosis of the ring and little fingers, has not manifested as favorable ankylosis of the index and long fingers, index and ring fingers, or index and little fingers; favorable ankylosis of three or more digits of one hand; or unfavorable ankylosis of any digits. 2. Throughout the appeal period, the Veteran's right thumb limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, has been manifested by painful motion, but not compensable limitation of motion. 3. At no point has the Veteran's right thumb limitation of motion been a gap of one to two inches (2.5 to 5.1 cm.) or more between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 4. Throughout the appeal period, the Veteran's right long finger limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, has been manifested by painful motion, but not compensable limitation of motion. 5. At no point has the Veteran's right long finger limitation of motion been 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for residuals of fractures, right ring finger and right little finger, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5223. 2. The criteria for entitlement to a 10 percent rating for right thumb limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger, were met from August 21, 2014 to July 1, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Codes 5003, 5228. 3. The criteria for entitlement to a rating higher than 10 percent for right thumb limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger have not been met for any time period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Codes 5003, 5228. 4. The criteria for entitlement to a 10 percent rating for right long finger limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger were met from August 21, 2014 to July 1, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Codes 5003, 5229. 5. The criteria for entitlement to a rating higher than 10 percent for right long finger limitation of motion, with arthritis, associated with residuals of fractures, right ring finger and right little finger have not been met for any time period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Codes 5003, 5229 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to March 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). The Veteran testified at a May 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. This matter was previously remanded in June 2021 for updated VA treatment records and a new VA examination to assess the current severity of the claimed disabilities. The updated treatment records have been associated with the claims file and an adequate VA examination was obtained; therefore, further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATING The Veteran seeks increased ratings for his service-connected residuals of fractures, right ring finger and right little finger, right thumb limitation of motion, and right long finger limitation of motion. Each of these disabilities is generally rated under 38 C.F.R. § 4.17a, Schedule of ratings musculoskeletal system. More specifically, his residuals of fractures, right ring finger and right little finger is rated under Diagnostic Code 5223; his right thumb limitation of motion is rated under Diagnostic Codes 5003-5228; and his right long finger limitation of motion is rated under 5003-5229. Upon return from remand, the Veteran's right thumb limitation of motion and right long finger limitation of motion ratings were increased to 10 percent, effective July 1, 2021, based on evidence of painful motion at the July 2021 VA examination. As discussed below, the Veteran's residuals of fractures, right ring finger and right little finger, right thumb limitation of motion, and right long finger limitation of motion affect his right hand, which is his major/dominant hand. Under Diagnostic Code 5223, which provides rating criteria for favorable ankylosis of two digits of one hand, as related to the dominant hand, a 10 percent rating is warranted for favorable ankylosis of the long and ring, long and little, or ring and little fingers; a 20 percent rating is warranted for favorable ankylosis of the index and long, index and ring, or index and little fingers; and a 30 percent rating, the highest schedular rating, is warranted for favorable ankylosis of the thumb and any finger. Other diagnostic codes related to ankylosis of digits of the hand are also potentially applicable: Diagnostic Codes 5224 to 5227 provide rating criteria for favorable or unfavorable ankylosis of individual digits, though only unfavorable ankylosis of the thumb allows for a rating higher than 10 percent. Diagnostic Code 5222 provides rating criteria for favorable ankylosis of three digits of one hand, with the minimum schedular rating for the dominant hand at 20 percent. Diagnostic Code 5221 provides rating criteria for favorable ankylosis of four digits of one hand, with the minimum schedular rating for the dominant hand at 40 percent. Diagnostic Code 5220 provides rating criteria for favorable ankylosis of five digits of one hand, with the only schedular rating for the dominant hand at 50 percent. Diagnostic Code 5219 provides rating criteria for unfavorable ankylosis of two digits of one hand, with the minimum schedular rating for the dominant hand at 20 percent. Diagnostic Code 5218 provides rating criteria for unfavorable ankylosis of three digits of one hand, with the minimum schedular rating for the dominant hand at 30 percent. Diagnostic Code 5217 provides rating criteria for unfavorable ankylosis of four digits of one hand, with the minimum schedular rating for the dominant hand at 50 percent. Diagnostic Code 5216 provides rating criteria for favorable ankylosis of five digits of one hand, with the only schedular rating for the dominant hand at 60 percent. During the pendency of the appeal, some of 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Diagnostic Codes 5216 to 5227, as detailed above, and Diagnostic Codes 5228 and 5229, as detailed below, remain unchanged. The regulatory changes reworded the Diagnostic Code 5003 from "Arthritis, degenerative (hypertrophic or osteoarthritis)" to "Degenerative arthritis, other than post-traumatic," but did not change the criteria for rating disabilities under the diagnostic code. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, or, if noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5228, which provides rating criteria for limitation of motion of the thumb, as related to the dominant hand, a non-compensable rating is warranted for limitation of motion with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating is warranted for limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and 20 percent rating, the highest schedular rating, is warranted for limitation of motion with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Under Diagnostic Code 5229, which provides rating criteria for limitation of motion of the index or long finger, as related to the dominant hand, a non-compensable rating is warranted for limitation of motion of the index or long finger 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, extension limited by no more than 30 degrees; and a 10 percent rating, the highest schedular rating, is warranted for limitation of motion of the index or long finger 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. The Veteran has been afforded three VA hand and finger examinations during the appeal period in October 2014, September 2017, and July 2021. The Board recognizes that the October 2014 and September 2017 examinations are deficient as to the requirements set out in Correia v. McDonald and Sharp v. Shulkin. That does not mean, however, that all the objective findings noted therein are not probative. Notably, these examinations are entitled to probative value regarding the other findings in the report, as the deficiencies with respect to an inadequate discussion of flare-ups and/or repeated use over time has no obvious impact on the physical findings from the examination. Accord Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). At the October 2014 examination, the Veteran reported chronic daily shooting pain, weakness, and swelling of his hand, and denied flare-ups. Initial range of motion testing revealed a gap between the right thumb and fingers of less than one inch, with painful motion, a gap between the right long and ring fingers and the proximal transverse crease of the palm of less than one inch, with painful motion, and no limitation of extension of any fingers. Repetitive use testing revealed no additional limitation of motion, but the examiner noted additional functional loss, including: less movement than normal of the right thumb and all fingers, weakened movement of the ring and little fingers, excess fatigability of the little finger, pain on movement of the thumb and all fingers, and deformity of the ring and little fingers, with pain and weakness significantly limiting functional ability with repeated use over time. Strength testing revealed decreased right hand grip strength to 3/5, active movement against gravity, and the Veteran did not have muscle atrophy. The examiner determined that there was metacarpophalangeal joint ankylosis of the right ring and little fingers in full flexion at the proximal and distal interphalangeal joint, but this ankylosis did not result in limitation of motion of other digits or interfere with overall function of the hand. As for functional impairment, the examiner noted that the Veteran's ability to lift with his right was limited to five pounds, intermittently. At the September 2017 examination, the Veteran reported flare-ups three to four times a week and right hand pain ranging from 5-7/10 to 9-10/10, indicating that his activities of daily living are limited, and he gets some assistance with bathing/washing. Initial range of motion testing revealed no gap between the right thumb and fingers, but painful motion in opposition of the thumb; a 1 cm gap between the right index and long fingers and the proximal transverse crease of the palm, with painful motion; and no limitation of extension of any fingers or the thumb. Repetitive use testing revealed no additional limitation of motion. Strength testing revealed decreased right hand grip strength to 4/5, active movement against some resistance, and the Veteran did not have muscle atrophy. As for functional impairment, the examiner noted that the Veteran's service-connected right hand condition would limit work that requires prolonged repetitive use, but, the Veteran also has other conditions that preclude use of his right upper extremity. The examiner separately stated that the Veteran's grip was weakened due to pain, his right hand conditions, and other conditions affecting the arm and hand, but it would require mere speculation to attempt to separate the conditions and limitations of each. The Board notes that the Veteran is now also service-connected for right upper extremity carpal tunnel syndrome. The Board also notes that there were multiple inconsistencies between the September 2017 examiner's observations and determinations. The examiner did not discuss estimated additional limitation of motion or functional loss with repeated use over time or during flare-ups and commented that he observed neither repeated use over time nor a flare-up during the examination, but nonetheless marked that the Veteran was examined immediately after repetitive use over time and during a flare-up. Separately, the examiner marked that there was no ankylosis, but then noted that there were additional contributing factors of disability, including "less movement than normal due to ankylosis, adhesions, etc." The Veteran has contended that the September 2017 VA examination was inadequate because the examiner barely examined his hand, and the examination was brief. Based on this contention and the multiple inconsistencies in the September 2017 examination report, the Board affords this examination only limited probative weight. At the July 2021 examination, the Veteran reported limited ROM of all fingers, stiffness, constant hand/finger pain, edema, decreased grip strength, and difficulty gripping, twisting, and grabbing objects for activities of daily living. He denied having flare-ups. Initial ROM testing revealed no gap between the right thumb and fingers and a 1 cm gap between the right index finger and the proximal transverse crease of the palm, with painful motion of all fingers and the thumb, and no limitation of extension of any fingers or the thumb. Passive ROM testing revealed no additional limitation of motion except for a 1 cm gap between the right long finger and the proximal transverse crease of the palm, with painful motion again present for all fingers and the thumb. The examiner separately noted there was evidence of pain in weight-bearing, non-weight-bearing, active motion, and passive motion, with the pain causing functional loss, including difficulty grasping, pulling, twisting, and gripping. Repetitive use testing revealed no additional loss of motion or function. The examiner determined that pain, fatigability, and weakness caused additional functional loss with repeated use over time, and estimated that repeated use over time would result in a 1 cm gap between the right index and long fingers and the proximal transverse crease of the palm, but no gap between the thumb and fingers. Because the Veteran did not report flare-ups, the examiner did not estimate the impact of flare-ups on ROM or functional ability. Strength testing revealed decreased right hand grip strength to 4/5, active movement against some resistance, and the Veteran did not have muscle atrophy. The examiner documented that swelling, less movement than normal, and weakened movement contributed to the right hand disability. The Veteran did not have ankylosis. As for functional impairment, the examiner reiterated that the Veteran experienced difficulty grasping, pulling, twisting, and gripping for activities of daily living. The Veteran's treatment records are associated with the claims file. In November 2014, he reported aching, sharp pain mostly in the fingers of his right hand, with onset more than a year prior. In January 2016, he reported aching pain in his right wrist and fingers, with onset in the year prior. In June 2016, he reported that his right fingers bothered him a lot with pain, swelling, and numbness. From January 2017 to October 2017, he continued to report right hand pain and swelling, though in one instance his reports were categorized as consistent with carpal tunnel syndrome. In April 2017, he reported loss of strength generally related to his right shoulder, elbow, wrist, and hand symptoms and denied any stiffness. He did not report pain specific to his right fingers and/or thumb to VA providers after June 2016. See, generally, VA Treatment Records from November 2014 to October 2017. The Board has considered the Veteran's lay statements and May 2021 Board hearing testimony. In his November 2014 Notice of Disagreement (NOD), the Veteran reported limitation of motion and strength in his entire right hand, finger, arm and shoulder, which impacts his ability to perform job duties (though the Board notes that his arm and shoulder condition(s) are not on appeal). At a December 2014 Veteran Readiness and Employment (VR&E) counseling, the Veteran reported that he could not consistently do his job at a high level due to pain in his right hand, and he can't close/curl his fingers, has difficulty writing, and has limitations in carrying, pushing, pulling, reaching, overhead work, fingering, feeling, and manipulating small objects due to his service-connected and non-service-connected disabilities. At the May 2021 Board hearing, the Veteran testified that he struggles opening tight jars and has to drive with his left hand because using his right hand leads to swelling and aching, and so he lets his right hand rest until he really needs to use it. He further testified that his thumb hurts when he moves it at certain angles, he can't make a full fist, his hand will "freeze up," and he uses medication to treat his pain, including naproxen and CBD oil. He also stated that his doctors at Dallas VAMC mentioned ankylosis of his middle finger during a nerve test, which he indicated may have been in the last year or two years ago, though he couldn't give a specific year due to memory deficiencies from his PTSD. The Board notes there is no such discussion of ankylosis documented in his VA treatment records, and the only nerve test in his VA treatment records is an EMG from Dallas VAMC in May 2013. Ankylosis After review of the lay and medical evidence, the Board finds that a rating higher than 10 percent for the Veteran's residuals of fractures, right ring finger and right little finger, is not warranted throughout the appeal period. While the October 2014 examiner determined that the Veteran had ankylosis of the right ring and little fingers, and the September 2017 examiner generally referenced ankylosis, the July 2021 examiner determined that the Veteran did not have ankylosis, and there is no record of any ankylosis determination in the Veteran's treatment records. To receive a rating higher than 10 percent, there must be favorable ankylosis of either the index and long fingers, index and ring fingers, or index and little fingers, the thumb and any finger, or of three or more digits of the right hand, or, separately, unfavorable ankylosis of the thumb. Because there is no medical evidence documenting the level of ankylosis required for a higher rating, and no mention of ankylosis since the October 2014 examination beyond the vague reference to ankylosis at the September 2017 examination, a rating higher than 10 percent under Diagnostic Code 5223, or any other diagnostic code contemplating ankylosis of digits of the hand, is not warranted. In making this finding, the Board has considered whether any of the Veteran's symptoms and/or reported functional impairment is the functional equivalent of ankylosis; however, the Board finds that the medical evidence does not demonstrate the functional equivalent of ankylosis such that a higher rating is warranted. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position."). Here, while the Veteran has reported stiffness of his right thumb and fingers and testified that his hand will "freeze up," he has not experienced additional limitation of motion with repetitive use at any VA examination and did not report flare-ups or his hand "freez[ing] up" at the recent July 2021 VA examination, despite the recency of this examination to the May 2021 Board hearing. The Board notes that the Veteran is competent to report symptoms, such as "freez[ing] up" that come to him through his senses, as this requires only personal knowledge and not medical expertise; however, these reports must be taken in tandem with medical observations and determinations. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377. Beyond the Veteran's May 2021 hearing testimony, there is no evidence of immobility approximating the functional equivalent of ankylosis throughout the appeal period. Moreover, as referenced in the August 2021 Supplemental Statement of the Case (SSOC), the Veteran's current right ring and little finger residuals disability rating exceeds the objective level of impairment demonstrated by recent medical evidence, as the July 2021 examiner determined that there is no ankylosis of any digits of the right hand. As such, based on his denial of flare-ups and lack of additional limitation of motion with repetitive use at the July 2021 VA examination, to the extent the Veteran has reported that his hand will "freeze up," this symptom is already fully contemplated by his existing rating. Accordingly, the Veteran's claim of entitlement to a rating higher than 10 percent for his residuals of fractures, right ring finger and right little finger, is denied. Limitation of Motion After review of the lay and medical evidence, the Board finds that separate 10 percent ratings for right thumb limitation of motion and right long finger limitation of motion, based on painful motion, are warranted throughout the appeal period. While the Veteran's limitation of motion of both his right thumb and right long finger do not meet the criteria for a compensable rating under Diagnostic Codes 5228 and 5229, he has reported painful motion related to both movements throughout the appeal period, allowing for the minimum compensable rating under both diagnostic codes. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 208 (under 38 C.F.R. § 4.59, "Painful motion," states, in pertinent part, "[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."). Ratings higher than 10 percent for right thumb limitation of motion and right long finger limitation of motion are not warranted at any point during the appeal period, as there is no evidence of limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers; limitation of motion of the index or long finger 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; and/or extension limited by more than 30 degrees. In making this conclusion, the Board is cognizant of the fact that the Veteran has used medication to treat his overall hand pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, however, there is no competent medical opinion, or other competent evidence, demonstrating that he would have limitation of function of the right thumb or long finger that would warrant higher or separate ratings but for the use of such medication. Accordingly, separate 10 percent ratings, but no higher, for right thumb and right long finger limitation of motion are warranted throughout the appeal period, based only on painful motion. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.