Citation Nr: 21076154 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-51 686 DATE: December 22, 2021 ORDER Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a right-hand injury is denied. FINDING OF FACT The Veteran's residuals of a right-hand injury is not shown to have been manifested by favorable ankylosis of the index and long; index and ring; or index and little fingers, even when considering any additional functional loss. CONCLUSION OF LAW A rating in excess of 10 percent for residuals of a right-hand injury is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5223, 5228-5230. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1966 to December 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision, which denied an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) and 10 percent disabling for residuals of a right-hand injury. In July 2019, these matters and entitlement to a TDIU were remanded for further development to furnish the Veteran a TDIU Claim form, obtain SSA records, and conduct medical examinations. In the interim, a June 2020 rating decision granted an increased evaluation of 70 percent disabling for PTSD effective July 19, 2016 and entitlement to a TDIU effective July 19, 2016, both assigned effective dates of the original date of claim for an increased rating for PTSD and residuals of a right-hand injury. Notably, the grant of an increased rating for PTSD to 70 percent constituted a full grant of the benefit sought on appeal. See January 2017 Notice of Disagreement (NOD) (requesting a 70 percent rating for PTSD). Here, entitlement to a TDIU is not available during the one-year period prior to his date of claim, as the evidence does not show a factually ascertainable increase in severity precluding employment during that time period. Therefore, the Board notes that the benefit sought by the Veteran has been granted in full and is no longer on appeal before the Board. See 38 C.F.R. § 3.400 (o). At the outset, the Board finds there has been substantial compliance with the prior Board remand directives in this matter. Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a right-hand injury is denied. Increased Rating Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Unfavorable ankylosis of multiple digits is rated under Codes 5216, 5217, 5218, and 5219 (depending on the number of digits). Favorable ankylosis of multiple digits is rated under Codes 5220, 5221, 5222, and 5223 (depending on the number of digits). Code 5223, which pertains to favorable ankylosis of two digits on one hand, provides a 10 percent rating when there is favorable ankylosis of the long and ring; long and little; or ring and little fingers. A 20 percent rating is warranted when there is favorable ankylosis of the index and long; index and ring; or index and little fingers; and a maximum 30 percent rating for a major extremity and 20 percent for a minor extremity is warranted when there is favorable ankylosis of the thumb and any finger. Code 5528, which pertains to limitation of motion of the thumb, provides a noncompensable rating 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 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. A 20 percent rating is warranted 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. Code 5229, which pertains to limitation of motion of the index or long finger, provides a noncompensable rating 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 by 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. Code 5230, which pertains to limitation of motion of the ring or little finger, provides a noncompensable rating with any limitation of motion. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion (ROM) measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Factual Background The Veteran submitted a July 19, 2016 supplemental claim seeking an increased rating for his residuals of a right-hand injury. At the September 2016 VA (hand and fingers) examination, a right-hand fracture was diagnosed. The Veteran reported chronic paresthesias in the lateral dorsum aspect of his right hand and the fourth and fifth fingers. He reported pain associated with fine motor skill use; pain and paresthesias with cold damp weather; and problems with prolonged gripping. The Veteran related that his right hand is his dominant hand. He described flareups due to repetitive use, overuse, and cold, damp weather. He described functional loss as inability to straighten his fifth finger. The ROM of the second finger (index finger) of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM of the third finger (long finger) of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM of the fourth finger (ring finger) of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM of the fifth finger (little finger) of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM in the thumb was measured to be zero degrees in extension and 100 degrees in flexion at the MCP joint, and zero degrees in extension and 90 degrees at the IP joint. Objective evidence of pain was noted on the examination, and there was no additional limitation to the ranges of motion after three repetitions. There was no gap noted between the thumb pad and the fingers or between the fingers and the proximal transverse crease of the hand. The examiner described the flareups reported by the Veteran as the following functional loss factors: pain, weakness, and lack of endurance. The examiner noted that they could not describe the flareups in terms of ROM, but that they would expect no further decreased ROM during a flareup, but would expect increased pain with movement. No ankylosis of any thumb or finger joints was found or limitation of motion of other digits or interference with overall function of the hand. The provider described the physical findings as 10 percent angulation medially of the 5th finger of 10 degrees, diminution in flexion of the 5th finger by 10 percent, and thickened boney protuberance 5th MCP. The provider noted the functional impact as right hand pain and paresthesias with repetitive fine motor use, prolonged grasping, and worsened by cold weather. The possibility of a future hand surgery was noted. An October 2016 private treatment record notes examination of the Veteran showing enlargement of the dorsal surface of the hand involving the 4th and 5th metacarpals. The doctor noted that sagittal movement of the CMC joints reveal no movement of either the 4th or 5th CMC joint and stress of both joints is associated with pain. The Veteran submitted a January 2017 NOD requesting an evaluation of 70 percent for PTSD and 20 percent disabling for a right-hand injury. An October 2016 VA treatment record notes the Veteran's reports of receiving a cortisone shot in his hand and scheduling an appointment for hand surgery within the next month. A December 2016 private treatment record notes severe post traumatic arthritis of the CMC joints of the 4th and 5th rays with ongoing pain. Normal ROM was demonstrated; no swelling or visible abnormalities were noted; he reported intermittent numbness and tingling in the thumb, index, and middle fingers; daytime symptoms are not predictable, but driving does tend to cause numbness on a frequent basis. A March 2017 VA treatment record notes the Veteran underwent a carpal tunnel release surgery and carpal metacarpal fusion of the right fourth and fifth CMC joints in January 2017 to address a fracture deformity. A February 2017 private treatment record notes the Veteran's followup status post right carpal tunnel release and carpometacarpal fusion right 4th and 5th CMC joints in January 2017. The provider noted the enlargement over the 5th metacarpal at the fusion site, and that the Veteran no longer reports tenderness with palpation. Evaluation of the right middle finger is painful with tenderness to palpation. X-rays were interpreted to show satisfactory placement of the screws across the 4th and 5th CMC joints including the fusion across 2 to the hamate. The Veteran received a prescription of Voltaren gel for the triggering and a Cortisone shot injection for the right middle finger. A June 2018 private treatment record notes the Veteran's reports of right-hand pain and difficultly riding his motorcycle. He also related occasional work as a carpenter. The occupational therapist noted the Veteran's report of hand pain, the dorsal aspect of the hand at the 4th and 5th MCP sit higher due to break and the bones not being reset properly, and a grinding is felt within this area with movement of the hand. The occupational therapist observed that the Veteran is unable to make a full fist, his fingers are unable to touch the distal palmer crease, and he is unable to complete finger to thumb opposition. A July 2018 private treatment record notes an evaluation of the Veteran's right middle and ring trigger fingers. A December 2018 VA treatment record note by an occupational therapist evaluated the Veteran's bilateral hand ROM as normal, grasp as about equal bilaterally, and pain consistent with arthritis. In their July 2019 informal hearing presentation, the Veteran's representative noted the Veteran's reports of pain to the September 2016 VA examiner. The representative argued that his right-hand pain impacted the Veteran's ability to work as a carpenter, rebuild his deck at home, and plow snow in the winter. On October 2019 VA (hand and fingers) examination, right-hand arthritis and residuals of a right-hand injury 5th metacarpal were diagnosed. The Veteran reported worsening pain with current symptoms described as an ongoing dull ache with periods of sharp pain. The Veteran related that his right hand is his dominant hand. He reported functional loss as limited ability for grasping or repetitive motion with his right hand. The ROM of the second finger, index finger, of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM of the third finger, long finger, of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 70 degrees in flexion at the DIP joint. The ROM of the fourth finger, ring finger, of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 65 degrees in flexion at the DIP joint. The ROM of the fifth finger, little finger, of the right hand was measured to be zero degrees in extension and 90 degrees in flexion at the MCP joint; zero degrees in extension and 100 degrees in flexion at the PIP joint; and zero degrees in extension and 65 degrees in flexion at the DIP joint. The ROM in the thumb was measured to be zero degrees in extension and 100 degrees in flexion at the MCP joint, and zero degrees in extension and 90 degrees at the IP joint. Objective evidence of pain was noted on the examination during finger flexion and finger extension, and there was no additional limitation to the ROMs after three repetitions. There was no gap noted between the thumb pad and the fingers or between the fingers and the proximal transverse crease of the hand. The examiner described no additional functional loss due to repeated use over time. The examiner noted the Veteran's description of flareups as ongoing dull ache with periods of sharp pain. The examiner noted that the flareups do not cause pain, fatigue, weakness, lack of endurance, or incoordination that would cause functional loss. The examiner opined that there is no basis to offer additional losses of function or motion during flareups. No ankylosis of any thumb or finger joints were found or limitation of motion of other digits or interference with overall function of the hand. The provider interpreted diagnostic testing to show right hand arthritis. The examiner described functional impact as the Veteran is a carpenter and his right-hand pain with ROM and decreased right hand ROM affects strength for pushing, pulling, and twisting as well as dexterity for twisting, writing, touching, and expression. The provider noted the Veteran lost zero to one week of work in the last twelve months. The provider conducted testing using a goniometer; noted pain on finger flexion and extension of the fourth and fifth digits of the right hand; and noted no objective evidence of pain in non-weight bearing of the right hand. In the August 2021 informal hearing presentation, the Veteran's representative argued that the Veteran's symptoms more closely approximated the 20 percent criteria due to his pain and functional loss during repetitive use and flareups. Alternatively, the representative argued that the Veteran should receive a separate evaluation under limitation of motion. Analysis The appeal is from the date of filing of a noninitial supplemental claim for an increased rating (filed July 19, 2016). Therefore, the evaluation period is from July 19, 2015, one year prior to the date of claim for an increased rating. As an initial matter, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia, 28 Vet. App. at 169-170. However, the finger is not a weight-bearing joint and the full ranges of motion of the finger joints is known, as described above. Therefore, the Board finds that the October 2019 VA examination, which did not include weight bearing testing of the Veteran's right hand, complies with the prior remand directives in this matter and meets the requirements of 38 C.F.R. § 4.59. The reports of VA examinations, treatment records, and lay statements in the record do not show or suggest that at any time under consideration the Veteran has met or approximated the criteria for a 20 percent rating under Code 5223. It is not shown that he has had favorable ankylosis of the index and long; index and ring; or index and little fingers. Favorable ankylosis of the index finger is not shown in the September 2016 or October 2019 VA examinations. An October 2016 private treatment record notes examination of the Veteran showing no movement of either the 4th or 5th CMC joint and stress of both joints is associated with pain. This private record preceded the fusion of the Veteran's 4th and 5th CMC joint and does not show any index finger related impairment. The Board notes that the Veteran's reports of functional limitations described as chronic paresthesias in the lateral dorsum aspect of the right hand and 4th/5th fingers and an ongoing dull ache with periods of sharp pain have consistently been shown throughout the pendency of this appeal. However, the record does not show or suggest that the disability picture presented/functional limitations shown due to solely the Veteran's service-connected residuals of a right-hand injury meets, or approximates, any criteria for a 20 percent rating, The functional limitations (of motion due to pain) found on examinations, and described by the Veteran, himself, fall far short of the extent of impairment that would warrant a 20 percent rating, as no pain, ankylosis, or impaired limitation of motion is alleged or shown for the right thumb or index finger. The Board has considered the applicability of separate Codes. However, the record does not show or suggest that the disability picture presented/functional limitations shown as unfavorable ankylosis (Codes 5216 5219), favorable ankylosis of the thumb/index finger (Codes 5220 5222), or limitation of motion of the thumb, index, or long finger (Codes 5228 5229). The Veteran's representative argued that a compensable rating should be assigned for the Veteran's finger arthritis due to limitation of motion. However, the limitation of motion for a ring or little under Code 5230 only provides for a noncompensable evaluation for limitation of motion of the ring and little finger. Rating the disability under DC 5228 would not yield a higher evaluation, as this diagnostic code considers limitation of motion resulting in a gap between the thumb and finger pads, which is not demonstrated at any point throughout the period on appeal. The Board has considered evaluations under the other codes governing ankylosis. Codes 5224 through 5227 consider ankylosis of individual digits, and include a note that directs consideration be given to 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 when ankylosis is present. Here, combining two such evaluations would not result in a higher rating, as the Veteran's ring and little fingers are involved in the disability, which each would only render a noncompensable evaluation under DC 5227; when combined with an evaluation for favorable ankylosis of any other digit, which is not shown by the evidence of record, the highest available rating is 10 percent. Further, the functional impairment shown in the record, both by clinical findings and the Veteran's own reports, is ongoing pain in the right hand, limited ability for grasping, paresthesias, problems with prolonged gripping, worsening symptoms with cold weather, and does not include the inability to use one or more digits. Thus, the Board does not find that the evidence of record approximates ankylosis of a thumb, index finger, or long finger (as required for a compensable rating under Codes 5224 5227), nor is rating by analogy to amputation appropriate. Because of the finding of degenerative arthritis in the Veteran's right hand, the Board has also considered evaluation under DC 5003, which allows for a 20 percent rating where there is involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a minor joint group. 38 C.F.R. § 4.45(f). However, the Boards finds probative the 2016 and 2019 VA opinions that noted the Veteran's reports of additional functional loss during flare-ups/repeated use over time and their findings of pain but no additional losses of function or ROM. The Board does not find that these flareups more closely approximate an occasional incapacitating exacerbation. In summary, the schedular criteria for a 20 percent schedular rating for residuals of a right-hand injury are not met, factors warranting referral of the matter for an extraschedular compensable rating are not shown or alleged, and a rating in excess of 10 percent for the service-connected residuals of a right-hand injury is not warranted. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.