Citation Nr: 21009309 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-37 071 DATE: February 22, 2021 ORDER A disability rating greater than 10 percent for residuals of a fractured right metacarpal (right wrist disability) is denied. A disability rating greater than 10 percent for residuals of a fracture of the left thumb (left thumb disability) is denied. A compensable disability rating for impaired right little finger associated with a right wrist disability is denied. A compensable disability rating for impaired right ring finger associated with a right wrist disability is denied. A compensable disability rating for a right hand scar associated with a right wrist disability is denied. FINDINGS OF FACT 1. The Veteran is right-arm dominant. The evidence of record does not demonstrate that the Veteran displayed ankylosis of the right wrist at any point during the claim period. 2. The evidence of record does not demonstrate that the Veteran’s left thumb disability limited motion such that a gap of more than 2 inches (5.1 centimeters (cm)) existed between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, during the claim period. 3. The evidence of record does not indicate that the Veteran’s right little and ring fingers were both ankylosed during any portion of the claim period. 4. The Veteran’s service-connected right hand scar is neither painful nor unstable and does not affect a total area equal to or greater than 39 square cm. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a right wrist disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215. 2. The criteria for a disability rating greater than 10 percent for a left thumb disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228. 3. The criteria for a compensable rating for an impaired right little finger 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 4. The criteria for a compensable rating for an impaired right ring finger 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 5. The criteria for a compensable rating for a right hand scar are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1983 to November 1987, and from March 1991 to September 1991. The Veteran additionally served in the Marine Corps Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the Denver, Colorado RO. In June 2018, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in March 2019, the Board found that new and material evidence had been received to reopen the previously denied issue of service connection for a left hip disability. The Board then granted service connection for the left hip on the merits. Additionally, the Board found that the Veteran was entitled to a 60 percent rating for the lumbar spine, a 40 percent rating for left lower extremity radiculopathy, a 20 percent rating for right lower extremity radiculopathy, and a 10 percent rating for a left thumb disability. Lastly, the Board remanded the issues of (1) entitlement to a disability rating greater than 10 percent for a left thumb disability, and (2) entitlement to a disability rating greater than 10 percent for a right wrist disability for additional development. In remanding the right wrist, the Board requested that the Agency of Original Jurisdiction (AOJ) consider the entire scope of the Veteran’s functional impairment instead of only limitation of motion of the joints in the right hand. Following the March 2019 remand, a VA RO issued a rating decision in August 2020 which granted service connection for (1) impairment of the right little finger associated with the right wrist disability, and (2) a right hand scar associated with the right wrist disability. Both disabilities were assigned noncompensable ratings effective June 17, 2016—the date VA received the Veteran’s intent to file regarding his right wrist increased rating claim. Relatedly, in November 2020, another rating decision was issued which granted service connection for impairment of the ring finger as associated with the right wrist disability. This newly service-connected disability was assigned a noncompensable rating effective July 25, 2019. As the right hand scar and impairment of the right little and ring fingers are associated with the underlying right wrist disability increased rating claim currently on appeal, the Board will evaluate them as well to see if entitlement to higher evaluations is warranted. Increased Ratings 1. Right Wrist Disability As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to a disability rating greater than 10 percent for his service-connected right wrist disability. Thus, the Veteran’s appeal is denied. In support of this determination, the Board first notes that the Veteran’s current 10 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under this diagnostic code, a maximum 10 percent rating is available for limitation of motion of either the major (dominant) or minor (non-dominant) wrist. Accordingly, the Veteran is already in receipt of the maximum rating pursuant to Diagnostic Code 5215. In order to assign a rating greater than 10 percent for impairment of the wrist, ankylosis must be present. Specifically, 38 C.F.R. § 4.71a, Diagnostic Code 5214, indicates that a 30 percent rating is assignable for favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. As mentioned previously in the Findings of Fact section, the Veteran’s right hand is his dominant hand. In the instant case, the Veteran’s VA treatment records are absent for any findings of ankylosis of the right wrist. Similarly, in VA wrist examination reports from October 2016 and July 2019, both VA examiners indicated that the Veteran did not display ankylosis of the right wrist. Accordingly, entitlement to a rating greater than 10 percent is not warranted in the instant case. Additionally, the Board acknowledges that, as stated in the March 2019 remand, the Veteran testified at his June 2018 Board hearing that he experienced symptoms of numbness and loss of grip strength which he believed were residuals of his right wrist injury. See Hearing Tr. at 12-14. In the more recent VA wrist examination from July 2019, the VA examiner did not indicate that numbness was displayed. Relatedly, the Veteran did not report—and a medical professional did not observe—numbness during any treatment received from VA during the claim period. Accordingly, the Board finds the observations contained in the medical evidence of record to be more probative and concludes that numbness cannot be classified as a residual of the right wrist injury at this time. However, regarding the Veteran’s testimony discussing loss of grip strength, the Veteran did display some reduction in muscle strength during testing of wrist flexion and extension on the right side at the July 2019 VA examination. Specifically, the examiner rated the loss of muscle strength as 4/5, equivalent to active movement against some resistance. A score of 5/5 was identified as normal muscle strength. Under 38 C.F.R. § 4.73, Diagnostic Codes 5307 and 5308, 30 percent ratings are assignable for moderately severe impairment of muscle Groups VII or VIII on the dominant side. Group VII correlates with muscles responsible for flexion of the wrist and fingers, while Group VIII correlates with muscles responsible for extension of the wrist and fingers. However, a “moderately severe” muscle injury is defined as a type of injury that is “[t]hrough and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.” 38 C.F.R. § 4.56(d)(2)(i). In the instant case, the Veteran did not suffer such an injury. Rather, the Veteran’s right wrist disability stemmed from an in-service bicycling accident in 1987. See January 1995 Rating Decision. As such, the Board also concludes that entitlement to a rating greater than 10 percent is also not warranted under 38 C.F.R. § 4.73, Diagnostic Codes 5307 or 5308. 2. Impaired Right Little and Ring Fingers As specified above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to compensable ratings for impairment of the right little and ring fingers in the instant case. Accordingly, the Board must deny the Veteran’s appeal. In making this determination, the Board first notes that both of these disabilities have been assigned noncompensable ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5230—assignable for limitation of motion of the ring or little fingers. Under Diagnostic Code 5230, any limitation or motion is assigned a noncompensable rating. Thus, the Board concludes that compensable ratings are not warranted under that diagnostic code regardless of the limitation of motion in the right little and ring fingers. The Board acknowledges that it has considered applying other diagnostic codes in denying the Veteran’s appeal for compensable ratings. Firstly, the Board considered Diagnostic Code 5227 for ankylosis of individual digits of the hand. However, under this diagnostic code, unfavorable or favorable ankylosis of the ring or little fingers also warrants the assignment of noncompensable ratings. 38 C.F.R. § 4.71a. Comparably, if both the little and ring fingers are ankylosed, a 10 percent rating is assignable under Diagnostic Code 5223 for either the major or minor hand. See id. However, in this case, examiners who conducted VA hand and finger examinations in October 2016 and July 2019 both noted that ankylosis of any digit was not present. Additionally, ankylosis was not identified in any of the VA treatment records associated with the claims file during the claim period. Accordingly, a compensable rating pursuant to Diagnostic Code 5223 is not warranted in the instant case. 3. Right Hand Scar As mentioned previously, in August 2020, VA concluded that the Veteran had a scar on his right hand that was associated with his service-connected right wrist disability. The Veteran’s right hand scar was assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. After reviewing the evidence of record, the Board finds that a compensable rating is not warranted and, thusly, the Veteran’s appeal is denied. In reaching this determination, the Board first notes that Diagnostic Code 7805 directs VA adjudicators to evaluate disabling effects of a scar under an appropriate diagnostic code. However, in this case, neither VA treatment records nor VA examination reports from October 2016 and July 2019 indicate that the Veteran’s right hand scar caused any disabling effects. Accordingly, as there were no disabling effects identified during the period on appeal, a compensable rating under Diagnostic Code 7805 is not warranted. Additionally, the Board acknowledges that other diagnostic codes are potentially applicable in the Veteran’s case. Specifically, Diagnostic Codes 7800, 7801, 7802, and 7804 are all assignable for service-connected scars, depending on the location and characteristics of the scars. Diagnostic Codes 7800, 7801, and 7802 are not applicable here as the Veteran’s right hand scar (1) is not located on the head, face, or neck; (2) is not associated with underlying soft tissue damage; and (3) does not affect an area of 929 square cm or more. See July 2019 VA Hand and Finger Conditions Examination Report (noting that the Veteran’s scar, affecting 3.0 square cm, was superficial and well-healed). Accordingly, the Board concludes that the only other diagnostic code possibly applicable in the Veteran’s case is Diagnostic Code 7804 for unstable or painful scars. Under Diagnostic Code 7804, a 10 percent rating is assignable when a claimant has 1 or 2 scars that are unstable or painful. See 38 C.F.R. § 4.118. Note (1) to Diagnostic Code 7804 defines an “unstable scar” as “one where, for any reason, there is frequent loss of covering of skin over the scar.” In the Veteran’s case, the July 2019 VA hand and fingers examiner indicated that the Veteran’s right hand scar was neither unstable nor painful. Additionally, the examiner commented that the scar was not tender, did not adhere to underlying tissue, was not associated with elevation or depression in the Veteran’s skin, and did not feature keloid development. Relatedly, the Veteran did not report to this examiner or any other medical provider that he experienced unique symptoms associated with his right hand scar. With this disability picture in mind, the Board declines to assign a compensable rating for the right hand scar pursuant to Diagnostic Code 7804 as there is no evidence that the Veteran’s scar was painful or unstable during the claim period. As such, the Veteran’s appeal for an increased rating is denied. See 38 C.F.R. § 4.118. 4. Left Thumb Disability Lastly, the Board finds that the Veteran is not entitled to a disability rating greater than 10 percent for his left thumb disability. Accordingly, the Board denies the Veteran’s appeal. In reaching this determination, the Board notes that the Veteran’s 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5228, for limitation of motion of the thumb. Under this diagnostic code, the next higher rating—and maximum rating—of 20 percent may be assigned when motion is limited to such an extent that a gap of more than 2 inches exists between the thumb pad and fingers, with the thumb attempting to oppose the fingers. Id. In evaluating the Veteran’s disability, the Board acknowledges that the 10 percent rating assigned by the Board in March 2019 was made pursuant to 38 C.F.R. § 4.59 in acknowledgement of painful motion of the thumb. In evaluating whether the next higher rating of 20 percent is warranted pursuant to Diagnostic Code 5228, the Board finds that a gap between the thumb pad and the fingers was not observed during range of motion testing during VA hand and finger conditions examinations in October 2016 and July 2019. Similarly, a gap was not noted in any VA treatment records associated with the claims file during the claim period. Accordingly, the Board finds that entitlement to a rating greater than 10 percent for the Veteran’s service-connected left thumb disability must be denied in the instant case. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.