Citation Nr: 21006785 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-20 421 DATE: February 5, 2021 ORDER Entitlement to a rating in excess of 10 percent for right hand arthritis, long finger is denied. FINDINGS OF FACT 1. The Veteran is right-handed. 2. During the period on appeal, the Veteran’s right long finger disability has been characterized by mild degenerative changes, pain, swelling and limitation of motion as well as problems grasping and manipulating objects, but not by ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right hand arthritis, long finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5229. (2020) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to August 1970. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a July 2019 hearing. The transcript of the hearing is of record. A July 2019 Board decision dismissed the issue of an increased rating for varicocele as withdrawn at the hearing and remanded the issue on appeal for further development. An August 2020 rating decision increased the rating for right long finger arthritis from 0 to 10 percent for the entire period on appeal. Because higher ratings for this disability are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 10 percent for right hand arthritis, long finger The Veteran contends that he is entitled to an increased rating for his right long finger, which is rated at 10 percent disabling. As will be discussed in detail below, the Board finds that a rating in excess of 10 percent is not warranted. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the evidence of record shows that the Veteran’s right hand is his dominant hand. The Veteran’s right side is therefore his dominant side and considered the “major” extremity. Under the Amputation Rule, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. Under Diagnostic Code (DC) 5154, for either the major or minor extremity, amputation of the long finger without metacarpal resection, at the proximal interphalangeal joint (PIP) or proximal thereto is assigned a 10 percent rating, and amputation with metacarpal resection (more than one-half the bone lost), is assigned a 20 percent rating. The Veteran’s right long finger disability is rated under DC 5229-5010. The hyphenated DC in this instance indicates that limitation of motion of the index or long finger under DC 5229 is the service-connected disorder and arthritis due to trauma under DC 5010 is a residual condition. Under DC 5229, a10 percent rating is warranted for the major extremity for limitation of motion with a gap of one inch (2.5cm) 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. This is the highest rating available under the DC. Under DC 5010, traumatic arthritis is rated as degenerative arthritis under DC 5003. Under the DC, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent rating is assigned for x-ray evidence of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Such ratings based on x-ray findings will not be combined with ratings based on limitations of motion. A VA hand/finger examination was provided in December 2015. The Board’s review, however, indicates that the examination did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing as required under Correia v. McDonald, 28 Vet. App. 158, 166 (2016). The examination is therefore inadequate, and the Board assigns it no probative weight. June 2018 private treatment records noted pain and numbness in the hands/fingers, more on the right. The Veteran also reported problems using the right hand for daily routines. The provider found non acute mild osteoarthritis of the MCP/IP joints on examination and advised exercise. A November 2019 VA examination noted the Veteran’s reports of pain at the long finger proximal knuckle. The examiner also noted reports of swelling and pain with load bearing. The examiner found abnormal range of motion, with maximum extension to 0 degrees at the metacarpal (MCP) joint, 10 degrees at the PIP joint, and 10 degrees at the distal interphalangeal joint (DIP), and maximum flexion to 60 degrees at the MCP joint, 90 degrees at the PIP joint, and 60 degrees at the PIP joint. The examiner found pain on flexion beginning at 50 degrees MCP, 70 degrees PIP and 20 degrees DIP. The examiner noted that pain began at the same point for active and passive motion. The examiner noted minimal pain in non-weight bearing and pain on load bearing started at the same points in range of motion as active motion and found that there was no additional range of motion loss. The examiner noted that the Veteran had problems holding and manipulating objects and typing. The examiner found that there was no gap between the pad of the thumb and finger or between the finger and proximal transverse crease of the hand. Right hand x-ray was noted to show degenerative changes in the first through third MCP joints and mild degenerative changes of the first digit IP joint. The examiner found that there was no ankylosis of any thumb or finger joint and that functional impairment was not such that the Veteran would be equally well served by amputation with prosthesis. The Board finds the November 2019 VA examination adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran’s statements, in-person examination and the examiner’s observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran submitted an April 2019 statement reporting that his right knuckles swelled and could be painful, restricting use of his right hand. At the July 2019 Board hearing, the Veteran reported pain in his finger, especially on damp days. He reported radiating pain extending down from the knuckles into the hand. The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and assigns his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the competent evidence of record is against an evaluation above 10 percent for the period on appeal. As noted above, 10 percent is the highest schedular rating available under DC 5229 for limitation of motion of the long finger. The Board also notes that the Veteran’s symptoms of motion limited by pain are encompassed by the rating assigned. A rating in excess of 10 percent is therefore not warranted under DC 5229. The Board has also considered whether a higher rating is warranted under DC 5010. However, there is no indication that the Veteran’s traumatic arthritis of the right long finger involves 2 or more major joints or 2 or more minor joint groups. X-ray evidence showed degenerative changes in the MCP joints, but the record is silent for any indication that the Veteran’s traumatic arthritis of the right long finger has impacted another major or minor joint group. A rating in in excess of 10 percent is therefore not warranted under DC 5010. The Board has also considered a rating for ankylosis of the long finger under DC 5226 and ratings for favorable or unfavorable ankylosis of multiple digits under DCs 5216, 5217, 5218, 5219, 5220, 5221, 5222 and 5223, however as the evidence indicates that the Veteran does not have ankylosis of the right long finger, or indeed of any digit, a rating for ankylosis under an alternate DC is not warranted. The Board has also considered whether evaluation as amputation is warranted. However, while the record shows that the Veteran has problems gripping and manipulating objects, the competent evidence does not indicate, and the Veteran does not contend, that his level of functional impairment is such that he would be equally well served by amputation with prosthesis. Finally, given the competent evidence that the Veteran’s right long finger disability caused problems with grasping and manipulating objects, the Board has considered whether special monthly compensation (SMC) for loss of use of one hand is applicable under 38 C.F.R. § 3.350(c)(iii). However, as the record does not show that the Veteran’s loss of use is at a level that would prevent natural elbow action with prosthesis, SMC for loss of use of one hand is not applicable. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 10 percent for right long finger arthritis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.