Citation Nr: 21006822 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 10-47 250A DATE: February 5, 2021 ORDER Entitlement to a rating of 10 percent, and no higher, for a right hand disability, is granted. Entitlement to a rating of 10 percent, and no higher, for a left hand disability prior to February 11, 2016, is granted. REMANDED Entitlement to a separate rating for bilateral carpal tunnel syndrome is remanded. Entitlement to a separate rating for bilateral muscular injury is remanded. FINDINGS OF FACT 1. For the period of the appeal, the Veteran’s right hand disability has been manifested by painful motion of the hand. 2. For the period of the appeal prior to February 11, 2016, the Veteran’s left hand disability has been manifested by painful motion of the hand. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 10 percent, but no higher for a right hand disability have been met. 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010, 5228. 2. The criteria for entitlement to an evaluation of 10 percent, but no higher, prior to February 11, 2016 for a left hand disability have been met. 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5228 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1987 to December 2007. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in November 2018, in which the Board denied entitlement to a compensable rating for a right hand disability and a compensable rating for a left hand disability prior to February 11, 2016. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeal for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s decision. The matters on appeal have now been returned to the Board for further consideration. 1. Entitlement to a rating of 10 percent, and no higher, for a right hand disability 2. Entitlement to a rating of 10 percent, and no higher, for a left hand disability prior to February 11, 2016 The Veteran seeks higher ratings for his right and left hand disabilities. He is currently assigned a 10 percent rating for his left hand disability, effective February 11, 2016, and a noncompensable rating for his right hand disability. See Nov. 2020 Rating Decision – Codesheet. VA regulations governing the musculoskeletal system, hand, and finger disabilities provide ratings based on ankylosis and limitation of motion or single or multiple hand digits. 38 C.F.R. § 4.71a, DC 5216-5230. Specifically, DC 5216 through 5227 are for application when favorable or non-favorable ankylosis is shown; however, these diagnostic codes are not for application in the present case. The Veteran does not have, nor has he alleged, that he has ankylosis in any joints of the right and left hands. Rather, DC 5228, which concerns limitation of motion of individual digits, is applicable. Under 38 C.F.R. § 4.71a, DC 5228 warrants a 10 percent rating when there is a gap of one to two (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 when there is 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. In addition, painful motion is entitled to at least the minimum compensable rating for a joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Applying the relevant criteria, the Board finds that the Veteran experienced painful motion of the right hand throughout the period of appeal and painful motion of the left hand prior to February 11, 2016. In February 2008, the Veteran underwent a VA examination. The examiner noted that there was tenderness to palpation over the metacarpal phalangeal joint of the right middle finger and the PIP joint of the left ring finger. See Feb. 2008 VA Examination, p. 8. In November 2010, the Veteran presented to a private provider, J.W. See Dec. 2010 Medical Treatment Record – Non-Governmental Facility. The Veteran’s chief complaint was bilateral hand numbness with pain that woke him up at night. Id. He also noted that it was difficult to hold objects in the morning “on [and] off for years, but really bad [over the] last 6 months.” Id. J.W. noted that joint pain in both wrists and bilateral hand weakness and numbness. A November 2011 VA examination notes that the Veteran reported bilateral hand pain, tingling fingers, decreased strength, dexterity, locking, stiffness, and swelling. See Nov. 2011 C&P Examination, p. 1. In August 2015, the Veteran presented to a private provider, Dr. R.R. See Sep. 2015 Third Party Correspondence. The Veteran requested an assessment of his arthritis with worsening movement on his left thumb. Dr. R.R. noted arthritis of the hand, with limited ROM of the left hand, due to pain. The Veteran underwent a VA hand and finger examination in February 2016. Regarding the Veteran’s right hand, the examiner noted pain on examination that did not result in functional loss. See Feb. 2016 C&P Examination, p. 5. Regarding his left hand, the examiner noted pain on examination that causes functional loss. Id. at 6. The Veteran underwent another VA hand and finger examination in March 2017. In this examination, the examiner noted that there was no evidence of pain with use of either hand, however, the examiner also noted that there was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of both hands. See Sep. 2017 CAPRI, pp. 3-4. The examiner specifically noted tender basal joints for both hands. Id. The Veteran underwent another VA hand and finger examination in September 2017. The examiner noted bilateral hand pain that did not result in functional loss. See Sep. 2017 C&P Examination, pp. 11-12. The examiner also noted that there was evidence of pain on passive range of motion testing. Id. at 12. She also noted that bilateral hand pain significantly limits the Veteran’s functional ability with repeated use over a period of time. Id. at 18-19, 21-22. Due to the extensive medical evidence documenting the Veteran’s bilateral hand pain throughout the appeal period, the Board finds that a rating of 10 percent should be assigned for both conditions during the relevant period of the appeal. See 38 C.F.R. § 4.59; Burton, supra. The Board also finds that a rating of 20 percent under DC 5228 for either hand is not warranted. A rating of 20 percent under DC 5228 is appropriate when there is 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. All three VA examinations of record note that the Veteran does not have a gap between his thumb pad and fingers on either hand. See Feb. 2016 C&P Examination, pp. 4-5; Sep. 2017 CAPRI, pp. 3-4; Sep. 2017 C&P Examination, p. 11. The Veteran has not asserted that he has such a gap between the thumb and finger. Accordingly, as there is no evidence of record indicating that the Veteran has a gap between the thumb pad and the fingers on either hand, a rating in excess of 10 percent for either condition is not warranted. This is the highest rating allowed under DC 5228. REFERRED Entitlement to a separate rating (service connection) for bilateral muscular injury is referred. In the May 2020 Appellate Brief, the Veteran, through his attorney, argues that a separate rating under DC 5309 for a muscular injury – contemplating grip loss and weakness – is warranted. This issue has not been previously considered by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The Veteran and his representative are advised that, effective March 24, 2015, a claim for benefits must be submitted on a VA standardized form. See 38 C.F.R. §§ 3.1 (p), 3.155, 3.160. REASONS FOR REMAND Entitlement to a separate rating for bilateral carpal tunnel syndrome is remanded. The Veteran contends that he is also entitled to a separate rating for bilateral carpal tunnel syndrome. Service connection for carpal tunnel syndrome was already denied by the Regional Office as addressed in a July 2012 rating decision. He filed a Notice of Disagreement in August 2012. As the Veteran’s attorney properly noted, a Statement of the Case (SOC) was not issued on this matter. Remand is required to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Issue an SOC pertaining to the issue of entitlement to a separate rating (or service connection) for bilateral carpal tunnel syndrome. Notify the appellant and his attorney that a substantive appeal must be filed to perfect and appeal. If a timely appeal is filed, return the case to the Board. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, Associate 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.