Citation Nr: A21019773
Decision Date: 12/13/21	Archive Date: 12/13/21

DOCKET NO. 200522-88436
DATE: December 13, 2021

ORDER

Entitlement to an initial compensable evaluation for chronic right pinky fifth digit strain status post fracture (claimed as arthritis right pinky) is denied.

Entitlement to an initial compensable rating for left lower extremity disturbance of skin sensation shin area (claimed as numbness left leg including foot) is denied.

Entitlement to a rating of 20 percent, but no higher, for left lower extremity shin splints (previously rated as left lower extremity stress fracture) is granted subject to the rules and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. The Veteran's right pinky finger disability has been manifested by pain, limitation of motion, and decreased strength of the right hand; there is no indication of limitation of motion of any finger other than the right pinky finger or loss of use equivalent to amputation.

2. The Veteran's left lower extremity disturbance of skin sensation shin area is manifested by mild incomplete paralysis of the musculocutaneous nerve.

3. Throughout the appeal period, the Veteran's left lower leg shin splint disability has been characterized by pain with walking, standing, and standing, functional loss including an antalgic gait without loss of strength, or joint instability, indicative of no more than moderate impairment.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for chronic right pinky fifth digit strain status post fracture (claimed as arthritis right pinky) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5156, 5227, 5230.

2. The criteria for an initial compensable rating for left lower extremity disturbance of skin sensation shin area (claimed as numbness left leg including foot) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code (DC) 8522.

3. The criteria for a rating of 20 percent, but no higher, for left lower extremity shin splints (previously rated as left lower extremity stress fracture) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40-45, 4.71a, Diagnostic Codes (DCs) 5299-5262.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1989 to May 1993 and was awarded the combat action badge.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision pursuant to the Appeals Modernization Act (AMA). In May 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) and elected Direct Review. Accordingly, the Board may only consider the evidence of record at the time of the rating decision on appeal.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999).

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2015).

1. Entitlement to an initial compensable evaluation for chronic right pinky fifth digit strain status post fracture (claimed as arthritis right pinky).

The Veteran seeks a compensable rating for a right pinky disability. In his VA Form 10182 he contends that he has arthritis in his right pinky. He is service connected for chronic right pinky fifth digit strain status post fracture pursuant to Diagnostic Code (DC) 5230. 

At his March 2020 VA examination, the Veteran reported that his right pinky finger disability caused pain and resulted in decreased strength. Functionally, it limited his ability to write reports without resting his hand. The Veteran is right hand dominant.

Under DC 5230, a noncompensable disability rating is assigned for any limitation of motion of the ring or little finger for both the major (dominant) and minor finger; no higher disability ratings are available. 

DC 5227, for ankylosis of the ring or little finger, is a potentially alternative DC. Pursuant to DC 5227, a noncompensable disability rating is assigned for unfavorable or favorable ankylosis of the ring or little finger; that is, fixation of the joint, for both the major and minor finger; no higher disability ratings are available. A note to DC 5227 instructs to the rater to consider 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. Id.

With respect to amputation, disability ratings are assigned under DC 5156. In this regard, amputation of the fifth finger without metacarpal resection at the proximal interphalangeal joint, or proximal thereto, warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5156. A 20 percent rating is available for amputation with metacarpal resection (more than one half the bone lost). Id. 

At the March 2020 VA Hand and Finger Conditions examination, the VA examiner noted that during active duty the Veteran sustained a spiral transverse fracture of the pinky during physical training requiring casting of his right hand and right arm to the elbow for 6 weeks The Veteran reported that prolonged writing resulted in increased pain and fatigue as a result of his pinky finger disability. He also noted flareups which occurred while writing, with cold weather, repetitive movements, and for no reason at all. On examination, the examiner noted limitation of motion for the right little finger, with finger pain on extension that resulted in functional loss. When opposing the right little finger with the thumb, there was no gap. There was objective evidence of mild to moderate pain on palpation of the right pinky finger. There was no evidence of any painful or limited motion involving the right long or index fingers. For all fingers, there was no change after repetitive motion. Functional loss to the right little finger included pain, deformity, and lack of endurance. Hand grip was 4/5 without muscle atrophy. There was no ankylosis of the right little finger. The VA examiner also concluded the Veteran's functional impairment was not so diminished that amputation with prosthesis would equally serve the Veteran. An X-ray of the Veteran's right hand performed in conjunction with the VA examination was silent for any abnormal findings including arthritis.  

After careful review, the Board finds that the preponderance of the evidence shows that a compensable rating is not warranted. Specifically, under the applicable diagnostic criteria, any limitation of motion or ankylosis of the little finger exclusively is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Codes 5227, 5230. The pinky finger fracture is not shown to cause limitation of motion in any other fingers. The disability is not equivalent to amputation, per the VA examiner. Accordingly, DC 5156 does not apply.

The Board acknowledges the Veteran's contention that he has arthritis in his right pinky finger and is entitled to a compensable rating on that basis. See 38 C.F.R. § 4.59. As an initial matter, while the Veteran is competent to describe symptoms of his disability, he is not competent as a lay person to make diagnoses of medical conditions. Here, the objective medical evidence, a March 2020 hand x-ray, indicated that the Veteran does not have a diagnosis of right pinky arthritis. 

Nevertheless, assuming arguendo that the Veteran did have a diagnosis of right pinky arthritis, the Veteran is not entitled to a compensable rating under DCs 5003 or 5010 based on limitation of motion. Such ratings are provided "under the appropriate DC for the specific joint or joints involved." Since DC 5230 provides a maximum noncompensable rating for limitation of motion, the Veteran is not entitled to a compensable evaluation based on limitation of motion due to arthritis. A compensable rating pursuant to 38 C.F.R. § 4.59 for painful motion due to arthritis would also not be warranted. In the case of Sowers v. McDonald, the United States Court of Appeals for Veterans Claims (Court) specifically addressed ratings of the pinky finger and held that when reading § 4.59 in conjunction with DC 5230, a compensable rating is not warranted using the arthritis provisions or provisions of § 4.59. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). The Sowers case clarified that the law would not provide for a compensable rating under the facts of this case even if the Veteran had a diagnosis of arthritis of his right pinky finger. 

In sum, the symptoms of the Veteran's service-connected right pinky fifth digit strain status post fracture (claimed as arthritis right pinky) most closely approximate the criteria for a noncompensable rating under the applicable rating criteria. A higher rating is not warranted, and the appeal is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5216-5230.

2. Entitlement to an initial compensable rating for left lower extremity disturbance of skin sensation shin area (claimed as numbness left leg including foot). 

The Veteran contends that the severity of his left lower extremity disturbance of skin sensation shin area (claimed as numbness left leg including foot) is worse than that contemplated by the initial noncompensable assigned rating. In particular at his March 2020 VA Peripheral Nerves Conditions examination, the Veteran stated that he experiences shin pain with burning and a tingling sensation with walking or sitting. His initial noncompensable rating under DC 8522 is based on mild incomplete paralysis of the musculocutaneous nerve. 

Under DC 8522, a noncompensable evaluation is warranted for mild incomplete paralysis of the superficial peroneal nerve. A 10 percent disability evaluation is warranted for moderate incomplete paralysis of the superficial peroneal nerve. A 20 percent evaluation is assigned for severe incomplete paralysis and a 30 percent disability rating requires complete paralysis with eversion of foot weakened.

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a; see also Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations).

The terms "mild," "moderate," "moderately severe" and "severe" under DC 8522 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The Veteran was afforded a VA examination in March 2020. The examiner noted that a review of the Veteran's VA e-folder was conducted in conjunction with the examination. The examiner noted a diagnosis of disturbance of skin sensation bilateral shin area. Symptoms affecting the left lower extremity were mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing revealed normal results on all testing sites. Muscle atrophy was denied. Reflex testing revealed normal results. Sensation to light touch was noted as normal. No trophic changes were noted. The Veteran's gait was antalgic due to stress fractures of the shin area of his legs bilaterally. The examiner noted mild incomplete paralysis of the musculocutaneous nerve bilaterally. No EMG studies were conducted. The use of assistive devices was denied. The Veteran denied any numbness of his left foot. The examiner noted that the Veteran's condition impacted his ability to work. In particular, prolonged walking or standing increased the numbness and pain the Veteran experienced in both shin areas of his lower extremities. 

After a review of all the evidence, the preponderance of the evidence is against the claim for a compensable rating for the Veteran's. Under DC 8522, a 10 percent disability evaluation is warranted for moderate incomplete paralysis of the superficial peroneal nerve. The March 2020 examination indicates that the Veteran has mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity. 

While the Veteran indicated that the symptomatology associated with his service-connected disability is worse than that which is contemplated by his current noncompensable rating, the objective findings fail to show that his disability meets the criteria for an increased evaluation; and those findings outweigh his lay assertions regarding severity.

The Board has considered the Court's holding in Deluca. However, the Veteran's symptoms are contemplated by his noncompensable rating for mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity under DC 8522. The Veteran's reported symptoms have been considered, and they support the currently assigned evaluation. The evidence as a whole does not show that the criteria for an increased rating are approximated. For these reasons, an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca.

In conclusion, a compensable rating is not warranted for left lower extremity disturbance of skin sensation shin area, manifested as mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity, and the claim is denied.

3. Entitlement to a compensable rating for left lower extremity shin splints (previously rated as left lower extremity stress fracture).

The Veteran seeks al compensable rating for his service-connected left lower extremity shin splint disability. He asserts that his disability has worsened in severity, and an increased rating is warranted. 

The Veteran's left lower leg shin splint is rated noncompensable under Diagnostic Code 5299-5262. 

Unlisted disabilities requiring analogy will be coded by the numbers of the most closely related body part and 99, while hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code assigned in this case indicates that leg shin splints are rated by analogy to a miscellaneous knee and leg disability under Diagnostic Code 5299, while impairment of the tibia and fibula is evaluated under Diagnostic Code 5262.

During the pendency of the appeal, 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. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character.

As of February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. 

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. 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Veteran was afforded a VA Knee and Lower Leg conditions examination in March 2020. On examination, symptoms of painful range of motion, difficulty with walking for extended periods, climbing stairs, sitting, standing, and fatigue were noted. The Veteran reported flare-ups with sitting, standing, walking, He described the severity as moderate. Active range of motion tests of both knees showed flexion to 140 degrees and normal extension. There was no pain on weight-bearing. There was no objective evidence of mild tenderness or pain on palpation of knee joint. Pain was noted on flexion but did not cause functional loss. On observed repetitive use range of motion and repeated use tests, there was no additional functional loss of either knee. The examiner opined that pain, fatigability, and lack of endurance did not significantly limit the Veteran's functional ability with repeated use over a period of time. For flare-ups, the examiner opined that pain, fatigability, and lack of endurance did not result in any additional functional loss bilaterally. The March 2020 VA examiner remarked that the Veteran's examination supported pain in the shin area and knee joints bilaterally, therefore passive range of motion was deferred since it was not medically appropriate to risk increasing the Veteran's pain and/or cause increased injury to the joint.

The March 2020 Peripheral Nerves Conditions examination noted the Veteran had an antalgic gait due to stress fractures of the shin area of his legs.

January 2020 VA treatment notes indicated that the Veteran had ongoing severe pain from stress fractures of his shins bilaterally as well as both knee since 1989 boot camp.

After evaluating the lay and medical evidence of record, under the old pre-February 7, 2021 rating criteria, the Board finds that the evidence is at least in equipoise that a rating of 20 percent, but no higher, left lower leg shin splint disabilities are warranted for the entirety of the appeal period. At the March 2020 examination, the Veteran reported bilateral pain in the lower extremities that affected him while walking, standing, or sitting. On examination, there was evidence of pain in the shin and knee bilaterally sufficient to abstain from passive range of motion testing. At the March 2020 Peripheral Nerves Conditions examination, the examiner found that shin splints caused disturbance of locomotion causing an antalgic gait. VA treatment notes indicated that the Veteran reported severe pain, recalcitrant to treatment since 1989. Affording the Veteran, the benefit of the doubt as required under the law, the Board finds these symptoms equate to moderate impairment of the lower extremities at the knees and ankles, as would warrant a 20 percent rating under Diagnostic Code 5262. As such, throughout the appeal period, a 20 percent rating is granted for the left lower leg shin splint.

The Board finds that a rating in excess of 20 percent is not warranted at any point during the appeals period. In that regard, under the pre-February 7, 2021 rating criteria the evidence of record does not demonstrate more than moderate impairment. Specifically, the Veteran's left lower leg shin splint disability has not resulted in marked impairment. While the Veteran has made credible reports of pain causing some functional impairment with walking, standing, and sitting; he has full strength in both knees and ankles. As for flare-ups, at most, they have been described as moderate severity. During his VA examination his left knee flexion and extension was normal. Although, there has been evidence of pain, at the most recent March 2020 examination, this symptom did not result in any additional functional loss during observed repetitive use and repeated use over time. The Veteran is also without joint instability or loss of muscle strength. Further, he has not required surgical or other invasive therapy for his conditions. Based on the foregoing, the preponderance of the evidence is against a finding of marked impairment to warrant the next higher evaluation of 30 percent for a left lower leg shin splint disability.

As for the amended rating criteria, effective February 7, 2021, the Board finds that a disability rating in excess of 20 percent for the left lower leg shin splint disability is not warranted because the evidence does not demonstrate that treatment was required for no less than 12 consecutive months bilaterally, criteria for a 30 percent rating. As such, under the amended rating criteria, a rating of 30 percent for the Veteran's left shin splint disability is not warranted.

The Board has considered other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). There is no lay or medical evidence showing the Veteran's shin splints have been manifested by ankylosis of the knees or ankles, dislocated or removed semilunar cartilage, or genu recurvatum at any time during the appeal period. Therefore, Diagnostic Codes 5256, 5258, 5259, 5263, 5270, or 5271 are not applicable in this case. 

In conclusion, the Board finds that a 20 percent rating, but no higher, is warranted for left lower leg shin splint disability throughout the appeal period. In granting this rating, reasonable doubt has been resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

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.