Citation Nr: 21076531
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 16-36 874
DATE: December 27, 2021

ORDER

Entitlement to a 10 percent rating, but no higher, for bilateral hand scars is granted.

Prior to May 23, 2016, entitlement to an initial rating of 10 percent, but no higher, for residuals, left hand injury, is granted.

From May 23, 2016, entitlement to a rating in excess of 10 percent for residuals, left hand injury, is denied.

Entitlement to an initial compensable rating for residuals, right hand injury, is denied.

FINDINGS OF FACT

1. The Veteran's bilateral hand scars result in two painful scars; the Veteran does not have 3 or more painful scars and none of them are unstable, they are not associated with underlying soft tissue damage, and the Veteran's scars do not total an area of 929 square centimeters or greater.

2. Prior to May 23, 2016, the Veteran's residuals, left hand injury, was manifest by painful left long finger motion at a gap of less than 2.5 centimeters.

3. Throughout the period on appeal, the Veteran's residuals, right hand injury, with limitation of motion and painful motion of the little finger, is rated as noncompensable, which is the maximum schedular rating permitted for limitation of motion for the little finger.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating for a 10 percent rating, but no higher, for bilateral hand scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7802, 7805.

2. Prior to May 23, 2016, the criteria for an initial rating of 10 percent, but no higher, for residuals, left hand injury, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5229.

3. From May 23, 2016, the criteria for a rating in excess of 10 percent for residuals, left hand injury, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5229.

4. The criteria for an initial compensable rating for residuals, right hand injury, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5230.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1980 to July 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012 and June 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

These matters were previously remanded by the Board in June 2019 for further development of the evidence. During the pendency of the remand development, in a July 2020 rating decision, the RO granted an increased evaluation of 10 percent for the left hand disability, effective May 23, 2016. As this partial rating increase is not the maximum allowable for the entire period on appeal, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993).

The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-257 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c).

In this regard, the Board notes that in the June 2013 rating decision, the RO awarded service connection for residuals, bilateral hand injuries, with noncompensable evaluations effective September 13, 2012, the date the Veteran made a claim for increased ratings for his service-connected bilateral hand scars. 

However, the record shows that on August 30, 2011, the Veteran claimed entitlement to service connection for the "knuckles removed from both his right and left hand due to an injury he incurred while in the military." The RO denied this claim in the January 2012 rating decision. Because the Veteran referred to his left and right hands in his August 30, 2011 statement, and specifically referred to in-service bilateral hand injuries, and because the Veteran's September 13, 2012 claim for increased ratings for his bilateral hand scars was made within a year of the January 2012 rating decision, the Board finds that the award of service connection for his bilateral hand injuries is effective August 30, 2011. The Board has thus recharacterized the issues as above, consistent with the holding in Clemons v. Shinseki.

Increased Ratings

Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

For musculoskeletal disabilities, such as those to the hands, there are additional criteria.

Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45.

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be 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. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to a compensable rating for bilateral hand scars

The Veteran contends that his bilateral hand scars warrant compensable ratings. Upon review of the evidence of record, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's bilateral hand scars. 

The Veteran is in receipt of noncompensable ratings for scars of his left and right hands. His bilateral hand scars were originally rated together under DC 7805. In a July 2020 rating decision, the ratings were changed to evaluate each hand scar separately under DC 7802.

Scars are evaluated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 applies to scars of the head, face, or neck. DC 7801 applies to scars not of the head, neck, or face that are associated with underlying soft tissue damage. DC 7802 applies to scars not of the head, face, or neck that are not associated with underlying soft tissue damage. Under DC 7801 a 10 percent rating is warranted for an area or areas of at least 39 square centimeters but less than 77 square centimeters, and under DC 7802, a 10 percent rating is warranted for scars with an area or areas of at least 929 square centimeters. See 38 C.F.R. § 4.118. Under DC 7805, scars are rated under an appropriate diagnostic code for any disabling effects not considered in a rating under DCs 7800 to 7804.

When the rating schedule does not provide a 0 percent (noncompensable) evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

Here, the most probative evidence, indicates that the Veteran has two painful, not unstable scars of his bilateral hands throughout the period on appeal. The Board notes that in the Veteran's May 2013 VA examination, the Veteran reported daily pain in the location of his bilateral hand scars, right greater than left. The Veteran is competent to report symptoms of recurrent pain localized in the area of his bilateral hand scars. As such, the Board finds that throughout the period on appeal the Veteran has had two painful scars of the bilateral hands and a rating of 10 percent, but no higher, is warranted for two painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804.

None of the evidence demonstrates that the Veteran has three or more painful scars of the bilateral hands or any scars that are unstable. Rather, examination reports in 2013 and 2020 report that the Veteran's scars are not unstable. As such, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran's bilateral hand scars throughout the appeal period. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804. To the extent that the Veteran contends that a rating in excess of 10 percent for bilateral hand scars is warranted, the Board finds that the probative evidence of record preponderates against the claim. 38 C.F.R. §§ 4.3, 4.7.

2. Prior to May 23, 2016, entitlement to an initial rating of 10 percent, but no higher, for residuals, left hand injury

3. From May 23, 2016, entitlement to a rating in excess of 10 percent for residuals, left hand injury

The Veteran contends that his left hand disability symptomatology warrants an initial compensable rating for the period prior to May 23, 2016, and in excess of 10 percent thereafter.

As noted above, the Veteran's left hand disability was initially assigned a noncompensable rating, but the RO increased the rating to 10 percent, effective May 23, 2016, in a July 2020 rating decision. The current 10 percent rating is based on painful motion of the left long finger under 38 C.F.R. § 4.59.

Under DC 5229, a noncompensable disability evaluation is assigned for limitation of motion of the index or long finger with a gap of less than 2.5 centimeters between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum 10 percent disability evaluation is assigned where there is limitation of motion of the index or long finger with a gap of 2.5 centimeters or more between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229.

Turning to the evidence of record prior to May 23, 2016, the Veteran underwent a VA hand and finger examination in November 2011, at which time he was diagnosed with status post bilateral hand injury and infection, with no loss of knuckles. The Veteran reported daily pain around the area of his bilateral hand scars especially during cold weather which he rated as 2 to 4 on a scale of 10 in severity. The examination report shows no loss of motion or evidence of painful motion for any fingers or thumb, no tenderness or pain to palpation of either hand, including thumbs and fingers, normal strength testing, and no ankylosis. Also, the examination report shows that the Veteran did not use any assistive devices, and that the examiner consulted with a staff radiologist and determined that August 2010 bilateral hand x-rays showed no loss of knuckles. The examiner found that the Veteran's left hand disability did not impact his ability to work and remarked that the bilateral hand examination was essentially normal.

The Veteran underwent another VA hand and finger examination in May 2013, at which time he was diagnosed with bilateral hand strain. The Veteran reported daily pain around the scar areas, with left hand pain rated in severity as 3 on a scale of 10. The Veteran further reported increased pain after driving, with repetitive motion, and with cold weather, and that he took Motrin PRN for pain. The examiner reported loss of motion or evidence of painful motion of the left long finger and noted a gap less than 2.5 centimeters between the left long fingertip and the proximal transverse crease of the palm with the long finger flexed with objective evidence of painful left long finger motion beginning at a gap of less than 2.5 centimeters, but no limitation of extension or evidence of painful motion for the index or long finger on extension. The Veteran was able to perform repetitive-use testing with three repetitions with no additional post-test limitation of motion for any fingers or gap between the thumb pad and fingers, and there was no post-test limitation of extension for the left index or long fingers. There was a post-test gap of less than 2.5 centimeters between the left long fingertip and the transvers crease of the palm with the left long finger flexed. The examination report shows left long finger pain on movement after repetitive use and left hand tenderness or pain to palpation for joints or soft tissue, including thumb and fingers. Left hand muscle strength testing was normal and ankylosis was not indicated. The examination report shows that the Veteran used no assistive devices and the examiner found that the Veteran's left hand disability did not impact his ability to work.

While the November 2011 VA examiner did not find objective evidence of pain on motion, the Court has held that 38 C.F.R. § 4.59 does not require "objective" evidence of painful motion and can be satisfied with lay and other non-medical evidence. Petitti v. McDonald, 27 Vet. App. 415, 429 (2015). In addition, the May 2013 VA examiner documented pain on movement as a contributing factor to functional loss of the Veteran's left hand disability after repetitive use. Accordingly, the Board finds that the Veteran is entitled to an initial, minimum disability rating of 10 percent as of August 30, 2011, consistent with the criteria under 38 C.F.R. §§ 4.40, 4.45, and 4.59 (awarding minimum compensable rating based on pain alone).

In this regard, the record reflects the Veteran's subjective reports of left hand pain throughout the period on appeal. See July 2015 Private Treatment Record and November 2011, May 2013, and January 2020 VA Hand and Finger Examination Reports. As a lay person, the Veteran is competent to report observable symptoms, such as having left hand pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Board concludes that an initial 10 percent rating pursuant to 38 C.F.R. § 4.59 is warranted prior to May 23, 2016 for the Veteran's residuals, left hand injury.

The Board notes that the maximum schedular rating assignable for limitation of motion of the left long finger has now been assigned for the entire appeal period beginning August 30, 2011. Thus, a higher rating is not available or warranted prior to, or from, May 23, 2016.

VA regulations provide higher ratings for amputation and ankylosis of multiple digits of the hand. All other diagnostic codes were considered, however, there is no other appropriate applicable code. The record does not reveal any findings of arthritis or ankylosis. Each of the November 2011, May 2013, and January 2020 VA examiners also determined that the Veteran's impairment is not analogous to amputation nor does the record support a finding of loss of use of the left hand. Additionally, while post-service private and VA medical treatment records document complaints of left hand pain, none of these records discuss the functional impact of the left hand. The Board therefore finds the record also does not suggest any impairment beyond that contemplated by the now-current 10 percent rating.

In sum, the Board finds that an initial 10 percent rating is warranted for the Veteran's left hand disability prior to May 23, 2016, and that the preponderance of the evidence is against the award of a rating in excess of 10 percent at any point during the appeal period. As a preponderance of the evidence is against the award of an evaluation in excess of 10 percent during the appeal period, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Entitlement to an initial compensable rating for residuals, right hand injury

The Veteran contends that his right hand disability symptomatology warrants an initial compensable rating.

The Veteran seeks an initial compensable rating for his residuals, right hand injury. Currently, the Veteran's right hand disability is rated as noncompensable under DC 5230, which provides for a noncompensable rating for any limitation of motion of the little finger regardless of whether the affected hand is dominant or minor. DC 5230 does not provide for a compensable rating.

As discussed above, the November 2011 examiner remarked that outside of the noted scars, the bilateral hand examination was essentially normal. The examiner found that the Veteran's right hand disability did not impact his ability to work.

During the May 2013 VA hand and finger examination, the Veteran was diagnosed with bilateral hand strain. The Veteran reported daily pain around the scar areas, with right hand pain rated in severity as 4 on a scale of 10. The Veteran further reported increased pain after driving, with repetitive motion, and with cold weather, and that he took Motrin PRN for pain. The examiner reported loss of motion or evidence of painful motion of the right little finger. The examination report shows right hand tenderness or pain to palpation for joints or soft tissue, including thumb and fingers. Right hand muscle strength testing was normal and no ankylosis was not indicated. The examination report shows that the Veteran used no assistive devices and that diagnostic testing showed a suggestion of minimal soft tissue calcification or spur formation along the anterior aspect of the right digital fifth metacarpal bone. The examiner found that the Veteran's right hand disability did not impact his ability to work.

Most recently, the Veteran was afforded a VA hand and finger examination in January 2020, in connection with which he was diagnosed with bilateral hand tenosynovitis. The Veteran reported current symptoms as pain, swelling, spasms, and the feeling of arthritis and inflammation of the joints, like a tight rubber band. He reported applying cold and heat for swelling, stiffness, and pain, and taking over-the-counter medications for pain. The Veteran reported that throughout the day, his activities are impeded and limited due to flare-ups of pain, swelling, and stiffness in one or both hands. He further reported daily right-hand flare-ups varying between mild and severe depending on weather conditions or activities, and described functional impairment as not being able to make a closed fist without pain, weakness, or numbness, and reported that his hands are often numb during daily hygiene tasks such as brushing his teeth and hair, and bathing. While initial range of motion measurements were all normal, the examiner estimated some loss of right little finger motion after repetitive use over time caused by pain and lack of endurance, and also during flare-ups caused by pain. Additional factors contributing to the Veteran's right hand disability were noted as impairment with grasping and pulling, and aggravation of pain. Right hand strength testing was normal and no muscle atrophy or ankylosis was found. The examiner noted that the Veteran does not use any assistive devices and that imaging studies were performed with no abnormal findings. The examination report shows the functional impact of the Veteran's right hand disability as avoidance of work environments that require repeated use of hand tools, pulling, or lifting over 25 pounds repeatedly to avoid aggravation of symptoms.

Under DC 5230, a noncompensable rating is the maximum rating for limitation of motion. The Board acknowledges the Veteran's reported symptoms including pain, swelling, stiffness, numbness, and the inability to make a closed fist without pain, weakness, or numbness; however, under DC 5230, any level of limitation of motion of the little finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016).

The regulation 38 C.F.R. § 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating. Instead, 38 C.F.R. § 4.59 employs conditional language that must be read in conjunction with the appropriate diagnostic code to be understood. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). As noted above, under the criteria of DC 5230, any level of limitation of motion, even if accompanied by associated pain and functional loss, results in a noncompensable rating. Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted under DC 5230.

Unlike other diagnostic codes, DC 5230, does not instruct that other diagnostic codes should be considered. The inclusion of criteria in one diagnostic code indicates that the Secretary's exclusion of that criteria elsewhere was purposeful. Some diagnostic codes include instructions for considering other diagnostic codes. DC 5227, addressing ankylosis of the ring or little finger, like DC 5230, lists only a noncompensable rating for ankylosis favorable or unfavorable. But DC 5227 also includes a note allowing for a compensable rating when an evaluation as amputation is warranted or where impairment of the ring or little finger limits the motion of other digits or the hand as a whole. The other individual-finger-ankylosis diagnostic codes also include this note. 38 C.F.R. § 4.71a, DCs 5224 (thumb), 5225 (index finger), 5226 (long finger). Both DC 5002 and DC 5003 specifically provide that individual joints may be rated for limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Many of the intermediate-level criteria for prosthetic implants identify specific diagnostic codes that may be used for rating by analogy. DC 5230 does not include a note allowing consideration under other diagnostic codes. Thus, VA clearly expressed its determination that DC 5230 be the only diagnostic code applicable to a little finger disability based on limitation of motion, and that limitation of motion of the little finger does not warrant a compensable disability rating. See Sowers, 27 Vet. App at 480.

(Continued on the next page)

 

Based on the foregoing, a compensable rating for residuals, right hand injury, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.

 

 

Patrick M. Johnson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Battaile

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.