Citation Nr: 21077608 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-20 635 DATE: December 30, 2021 ORDER Entitlement to an initial compensable evaluation for status post boxer's fracture of the 5th metacarpal of the right hand is denied. REMANDED Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol disorder is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The non-compensable evaluation assigned for the Veteran's status post boxer's fracture of the 5th metacarpal of the right hand is the maximum evaluation available under the VA rating schedule; the preponderance of the evidence is against finding that his finger is ankylosed, that he has loss of use of the finger such that he would be equally served by amputation, or that there is degenerative arthritis established by x-ray findings. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for status post boxer's fracture of the 5th metacarpal of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.59, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2008 to November 2011. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned Veterans Law Judge during an October 2021 hearing. A transcript of the hearing is in the record before the Board. On an April 2018 VA Form 9, the Veteran described the effects of his PTSD and stated that he was unemployed and had been since July 2017. The Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in October 2021. He stated that his service-connected PTSD prevents him from securing or following any substantially gainful employment. Thus, the TDIU issue is now properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an initial compensable evaluation for status post boxer's fracture of the 5th metacarpal of the right hand. The Veteran asserts that because he is right-handed and the 5th metacarpal is used for stability when writing, he has constant pain when writing and should receive a 10 percent rating under 38 C.F.R. § 4.59. See April 2018 VA Form 9. During the hearing, he stated that this disability results in pain, limits lifting and results in grip problems. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The United States Court of Appeals for Veterans Claims (Court) has held that Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, supra, at 206. The Court clarified that 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); cf. Powell v. West,13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath, supra. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). These regulations made no changes to the Diagnostic Codes relevant to the Veteran's claim. The Veteran's disability is on his right, major hand. See June 2017 VA Hand and Finger Conditions examination report. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Diagnostic Code 5230 contemplates limitation of motion of the ring or little finger and provides that any limitation of motion warrants a noncompensable rating. Higher ratings are available for amputation (under 38 C.F.R. § 4.71a, Diagnostic Code 5156), unfavorable ankylosis of multiple digits (under 38 C.F.R. § 4.71a, Diagnostic Codes 5216, 5217, 5218, 5219), and favorable ankylosis of multiple digits (under 38 C.F.R. § 4.71a, Diagnostic Codes 5220, 5221, 5222, 5223). The report of a June 2017 VA Hand and Finger Conditions examination provides a diagnosis of s/p Boxer's fracture 5th metacarpal right hand. The Veteran denied flare-ups and identified functional loss or impairment as not having a good grip in the right hand. Right hand initial range of motion was described as abnormal. The right 5th metacarpal had limited range of motion compared to the left. Pain on right finger flexion was noted on the examination but did not result in/cause functional loss. The Veteran's right hand had no ankylosis. Results of imaging tests did not include arthritis or degenerative changes. The Veteran's disability did not so diminish functioning that amputation with prosthesis would equally serve him. As noted, a compensable evaluation is not provided by Diagnostic Code 5230. The Board has considered whether a compensable rating can be assigned on painful motion under 38 C.F.R. § 4.59. Generally, when painful motion is present, the minimum compensable rating for the joint should be assigned. However, in this case, the minimum (and maximum) rating under Diagnostic Code 5230 is noncompensable. Sowers v. McDonald, 27 Vet. App. 472, 47981 (2016). Therefore, a compensable rating for painful motion cannot be assigned in this case under 38 C.F.R. § 4.59. In addition, there is no objective evidence that the Veteran's disability results in functional impairment such that he would be equally well served by an amputation with prothesis. Diagnostic Code 5156. There is no objective evidence of ankylosis, and the Veteran is only service connected for the 5th digit, not multiple digits. Diagnostic Codes 5216 5223. Finally, there is no evidence of degenerative arthritis established by x-ray findings with a major joint or a group of minor joints affected by limitation of motion, as required for a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board acknowledges the Veteran's belief that his disability is more severe than reflected by the assigned initial noncompensable disability rating. He is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent evidence concerning the nature and extent of his disability was provided by the VA examiner who examined him in June 2017. The medical findings provided in the June 2017 VA examination report address the criteria under which the Veteran's disability is evaluated. The Board also acknowledges contentions by the Veteran's representative at the hearing that the proper evaluation of the Veteran's disability requires a current VA evaluation "since the last exams were four years ago." However, the Board notes that there is no such thing as a "stale" examination. An examination of a veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of a veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time where an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). A remand for a new examination of a veteran's level of disability should be based upon a finding that there is an indication in the record that condition has changed. The Board observes that there is no affirmative indication that the condition has changed since the last VA examination. The Veteran's VA CAPRI records and hearing testimony reflect that his disability has not materially worsened in severity since the June 2017 VA examination. As such, a new examination is not required to be provided. Accordingly, a new examination is not necessary for evaluation of the Veteran's disability. In light of the above, the Board finds that an initial compensable evaluation for status post boxer's fracture of the 5th metacarpal of the right hand is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for PTSD with alcohol disorder is remanded. The Board remands this issue for additional development. During the hearing, the Veteran testified that his symptoms had gotten worse and he had been unemployed for two or three years. The Board finds that the Veteran's testimony demonstrates that his symptoms of PTSD with alcohol disorder have gotten worse since his most recent VA PTSD examination, conducted in July 2017. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD with alcohol disorder. 2. Entitlement to a TDIU is remanded. This issue is inextricably intertwined with the PTSD with alcohol disorder issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Since the Board is remanding these claims, the agency of original jurisdiction should update the Veteran's e-folder to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Please obtain and associate with the Veteran's e-folder copies of all outstanding VA treatment records. 2. Then, after the foregoing records development is completed, please schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with alcohol disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD with alcohol disorder alone. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the inextricably intertwined issues of entitlement to an initial evaluation in excess of 50 percent for PTSD with alcohol disorder and entitlement to a TDIU. If either benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.