Citation Nr: 21073290 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-39 726A DATE: December 8, 2021 ORDER An initial rating higher than 10 percent for painful motion, right index finger, motion is denied. An initial rating higher than 10 percent for painful motion, left index finger, is denied. An initial rating higher than 10 percent for painful motion, right long finger, is denied. An initial rating higher than 10 percent for painful motion, left long finger, is denied. An initial compensable rating for painful motion, right ring finger, is denied. An initial compensable rating for painful motion, left ring finger, is denied. An initial compensable rating for painful motion, left little finger, is denied. An initial compensable rating for painful motion, right little finger, motion is denied. An extraschedular rating for service-connected right index finger, left index finger, right long finger, left long finger, right ring finger, left ring finger, right little finger, and left little finger disabilities, is denied. REMANDED Entitlement to an initial rating higher than 10 percent for right hand arthralgia, thumb, is denied. Entitlement to an initial rating higher than 10 percent for left hand arthralgia, thumb, is denied. FINDINGS OF FACT 1. The Veteran's right index finger, left index finger, right long finger, left long finger, right ring finger, left ring finger, right little finger, and left little finger, are shown to have been productive of complaints of pain; but not ankylosis, or amputation. 2. The Veteran's disability picture does not present an exceptional and unusual disability picture which renders impracticable the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for disability of the right index finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5229. 2. The criteria for an initial rating higher than 10 percent for disability of the left index finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5229. 3. The criteria for an initial rating higher than 10 percent for disability of the right long finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5229. 4. The criteria for an initial rating higher than 10 percent for disability of the left long finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5229. 5. The criteria for an initial compensable rating for disability of the right ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5230. 6. The criteria for an initial compensable rating for disability of the left ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5230. 7. The criteria for an initial compensable rating for disability of the right little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5230. 8. The criteria for an initial compensable rating for disability of the left little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5230. 9. The criteria for an extra-schedular evaluation for right index finger, left index finger, right long finger, left long finger, right ring finger, left ring finger, right little finger, and left little finger disabilities, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321 (b)(1) and Part 4. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With regard to the histories of the disabilities in issue, the Veteran's service treatment records show that he was treated for left hand cellulitis in 1989. Beginning in 2004, he was treated for erythema over the small joints of his fingers with mild pain. X-rays taken in 2004 were essentially negative. There was no reported history of trauma. In 2006, his knuckles were noted to be hypertrophied and painful. In June 2016, the RO granted service connection for arthralgias of the metacarpointerphalangeal (MIP), proximal interphalangeal (PIP), and distal interphalangeal (DIP) joints of each hand, with each hand assigned a separate 10 percent rating, with effective dates of December 10, 2015. The Veteran appealed the issues of entitlement to increased initial ratings, and in October 2019, the Board remanded these claims for additional development. In August 2020, the RO granted the claims, to the extent that it granted separate 10 percent ratings for right hand index finger PIP joint arthralgia, right hand long finger PIP joint arthralgia, left hand index finger PIP joint arthralgia, and left hand long finger PIP joint arthralgia; the RO also assigned separate noncompensable ratings for the right and left ring and little fingers. In each case, the RO assigned an effective date of December 10, 2015. INCREASED RATING Under 38 C.F.R. § 4.71a, DC 5218, Three digits of one hand, unfavorable ankylosis, Long, ring, and little fingers, a 30 percent rating is warranted where there is unfavorable ankylosis of these fingers in the major hand. Under 38 C.F.R. § 4.71a, DC 5219, Two digits of one hand, unfavorable ankylosis, a 20 percent rating is warranted where there is unfavorable ankylosis of the long and ring, long and little, or ring and little fingers, in the major hand. Under 38 C.F.R. § 4.71a, DC 5155, a 10 percent rating is warranted for: Ring finger, amputation of, without metacarpal resection, at proximal interphalangeal joint or proximal thereto. Under 38 C.F.R. § 4.71a, DC 5227, there is a maximum noncompensable rating for ankylosis of the ring or little finger. The maximum rating allowed for ankylosis of long finger is 10 percent; the maximum rating allowed for ankylosis of the ring or little finger is a noncompensable rating. 38 C.F.R. § 4.71a, DCs 5226, 5227. The maximum rating allowed for limitation of motion of the 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, is 10 percent. 38 C.F.R. § 4.71a, DC 5229. A maximum noncompensable rating is allowed for limitation of motion (any limitation of motion) for the ring or little fingers. 38 C.F.R. § 4.71a, DC 5230. Notes accompanying the ratings for finger impairments indicate that for the long, ring, and little fingers, 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. See 38 C.F.R. § 4.71a, "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand." [Note 1]. 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. Id. [Note 2]. Evaluation of ankylosis of the 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 fingertips 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. [Note 3]. If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation. [Note 5]. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." Colayong v. West, 12 Vet. App. 524, 528 (1999). For all claims, private treatment reports, dated in 2016, note complaints of increased hand pain, stiffness, swelling, and decreased range of motion. On examination, there was joint swelling and arthralgia. X-rays, taken in January 2016, were negative bilaterally. A VA examination report, dated in June 2016, shows that the Veteran complained of worsening hand symptoms, to include stiffness, and difficulty typing. He denied flare-ups and functional loss. He stated that he has not been given a clear diagnosis despite numerous evaluations. The examiner noted further that various diagnostic tests for rheumatoid arthritis and dermatomyositis had been negative. On examination, there was pain that did not cause or result in functional loss. There was objective evidence of localized tenderness or pain on palpation of the DIP and PIP joints. Range of motion was normal, bilaterally. Grip strength was normal, bilaterally. There was no muscle atrophy, or ankylosis. Imaging studies were normal. There was no impact on the Veteran's ability to perform any type of occupational task. The diagnosis was MCP, PIP, and DIP arthralgias. A VA examination report, dated in December 2019, shows that the Veteran complained of hand pain, mostly at his PIP joints. He also reported constant swelling of his joints and said that he had still not been provided with a clear diagnosis. He reported having pain when gripping things such as a bucket with a thin handle. On examination, there was objective evidence of localized tenderness or pain on palpation of the DIP and PIP joints. There was a limitation of motion in the hands, and a significant limitation of functional ability during flare-ups. There was pain on use. Grip strength was 5/5 bilaterally. There was no muscle atrophy, or ankylosis. The objective findings on clinical examination revealed a new finding of Dupuytren's contractures over the palms of the 4th and 5th fingers, which the Veteran reported had existed for the prior 2 years. The examiner opined that the Veteran did not have a finger flexion deformity connected to the contractures. There was no impact on the Veteran's ability to perform any type of occupational task. The diagnosis was PIP arthralgias. 1. Initial ratings in excess of 10 percent, right index finger, left index finger, right long finger, and left long finger. The Veteran's right hand and left hand index fingers, and right hand and left hand long fingers, have each been separately evaluated as 10 percent disabling under DC 5229. The Board finds that the criteria for an initial rating in excess of 10 percent have not been met. The Veteran is shown to have complained of symptoms that include pain, swelling, and some difficulty grasping certain objects. However, there are no diagnoses of ankylosis of any of the fingers in issue, nor are there any findings otherwise sufficient to show ankylosis. Both the June 2016 and December 2019 VA DBQs show that the examiners stated that the Veteran does not have such functional impairment that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. Therefore, a rating in excess of 10 percent is not warranted under DCs 5218-5219, or 5222-5223. As ankylosis is not shown, there is no basis to find that the Veteran has "resulting limitation of motion of other digits" due to ankylosis of the long finger, to warrant evaluation as an amputation, or for the assignment of an additional evaluation for limitation of other digits, or interference with overall function of the hand. See DCs 5226 and 5227, Notes. Accordingly, the claim must be denied. As the applicable criteria at DCs 5218-5219 and 5222-5223 are predicated on the type of ankylosis, and not on loss of range of motion, 38 C.F.R. § § 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995) do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). The maximum rating allowed for limitation of motion of any of the service-connected fingers in issue is, at most, 10 percent. See DC 5229. To the extent that functional impairment which can be attributed to pain and weakness may be relevant, a rating in excess of 10 percent is not warranted. Although functional loss was noted in the December 2019 VA examination report, both VA examination reports show that bilateral hand grip strength was 5/5, and that there was no muscle atrophy or ankylosis. Both VA examination reports also show that the examiners concluded that there was no impact on the Veteran's ability to perform any type of occupational task. Accordingly, a limitation of motion that is not otherwise specified in the rating schedule is not shown. See 38 C.F.R. § 4.71a, Note. Given the foregoing, an initial rating in excess of 10 percent due to functional loss is not warranted for the right index finger, left index finger, right long finger, or left long finger. 2. Initial compensable rating, right ring finger, left ring finger, right little finger, and left little finger. The Veteran's right ring finger, left ring finger, right little finger, and left little finger, have each been separately evaluated as noncompensable under DC 5230. The Board finds that the claims must be denied. There is no basis upon which to assign a 10 percent rating for a disability of the little or ring finger based on limitation of motion. There is no evidence to show that either of the Veteran's service-connected ring finger disabilities is productive of an amputation. In this regard, both the June 2016 and December 2019 VA DBQs show that the examiners stated that the Veteran does not have such functional impairment that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. In addition, the June 2016 VA examination report shows that the examiner concluded that the Veteran "has no discrete left ring finger condition." As ankylosis is not shown for both ring and little fingers of either hand, a compensable rating is not warranted under DCs 5219 or 5223. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claim must be denied. As the applicable criteria are predicated on the type of ankylosis, and not on loss of range of motion, 38 C.F.R. § § 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995) do not apply. Johnson. 3. Extraschedular Rating. The Veteran asserts that he should be considered for a higher rating on an extraschedular basis. The Board finds an insufficient factual basis for referral for extraschedular consideration. Extraschedular ratings are for cases that manifest with an exceptional disability picture not contemplated by the rating schedule. The Board is not authorized to grant a higher rating on an extraschedular basis in the first instance, Bagwell v. Brown, 9 Vet. App. 337, 339 (1996), as that authority is vested in the Director, Compensation Service (Director). 38 C.F.R. § 3.321(b)(1). The Board, however, does have the authority to direct a referral to the Director for consideration of a higher rating on an extraschedular basis or determine if an AOJ correctly decided not to make a referral. Bagwell, 9 Vet. App. at 339. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court recently reaffirmed the Thun criteria for extraschedular referral. Long v. Wilkie, 33 Vet. App. 167 (2020). The primary symptoms asserted by the Veteran have been pain and stiffness, symptoms which impact the motion of affected joints. As discussed earlier in the decision above, the Veteran's disability of the fingers is rated on the basis of limitation of motion. The rating criteria contemplate those facets of his disability. The Board notes the Veteran's complaints of occasional swelling of the joints. However, while he is certainly competent to report his symptoms, his lay subjective reports have not been confirmed by diagnostic tests. His medical records note that tests for rheumatoid other inflammatory arthritis were negative, as were X-rays for other abnormalities. In January 2016, an examination noted positive swelling and change in skin color but no finding of a rash. See March 2016 VA progress note. His record, however, does not support a finding of chronic swelling. Further, his Gulf War examination report notes that he does not have an undiagnosed illness as that term is defined. See June 2016 VA examination report. Claimed symptoms for which there is no medical diagnosis does not automatically trigger referral for extraschedular consideration. Long, 33 Vet. App. at 167. Hence, as discussed above, consideration of the totality of the Veteran's symptomatology constrains the Board to find that the first Thun step is not met; that is, the LOM rating criteria in fact contemplates the Veteran's disability. The Court's precedents on this issue provide that the analysis need not proceed to the second step if the first is not met. Thun, 22 Vet. App. 111. Nonetheless, assuming arguendo that the first step is met, the preponderance of the evidence clearly shows that Thun Step 2 is not met, as the Veteran has not experienced marked interference with his employment or frequent periods of hospitalization. As the Court noted in its recent Long decision, exceptionality is the touchstone in determining whether extraschedular consideration is warranted. Based on the above, the Board finds that the Veteran's disability of the hands does not manifest with an exceptional disability picture. 38 C.F.R. § 3.321(b)(1). Hence, referral for consideration of higher ratings on an extraschedular basis is not indicated. The Board finds further, as discussed earlier, that the assigned ratings compensate the Veteran to the extent practical for the impairment in earning capacity due to his disability. 38 C.F.R. § 4.1. REASONS FOR REMAND The claim for an initial rating higher than 10 percent each for arthralgia, thumbs, is remanded. The Board finds that there has not been substantial compliance with its October 2019 remand directive. Contrary to the case with digits II through V, the rating criteria for the thumbs provide for ratings from 0 to 20 percent. See 38 C.F.R. § 4.71a, DC 5228. In this case, the examiner failed to provide assessments for the Veteran's thumbs as required in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, a remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Send the claims file to the examiner who conducted the December 2019 examination, or, if not available, to another qualified clinician. Inform the examiner that the 2019 assessment of additional loss of range of motion due to the Veteran's reported flare-ups was incomplete and improperly conducted. Inform the clinician that she, the clinician, not the Veteran, must estimate the additional loss of ROM due to the flare-ups. a) The examiner is requested to test the range of motion in active motion and passive motion. If the examiner is unable to conduct the required testing, or concludes testing is not necessary, he or she should clearly explain why that is so. b) The examiner must provide an opinion as to the severity of the Veteran's bilateral thumb symptoms, and how those symptoms impact the Veteran's occupational functioning. c) With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups from the Veteran. d) The examiner must express an opinion as to whether or not the Veteran's functional ability is significantly limited during flare-ups, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups. e) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). T. Stephen Eckerman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.