Citation Nr: 21011315 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-17 468 DATE: March 1, 2021 ORDER Entitlement to a compensable disability rating for residuals, old fracture right fifth metacarpal (claimed as residuals from right hand injury), to include extraschedular consideration is denied. FINDING OF FACT The Veteran’s right fifth metacarpal disability is manifested by pain, spasms, numbness, cramps, fatigue, and reduced grip strength. CONCLUSION OF LAW The criteria for a compensable disability rating for residuals, old fracture right fifth metacarpal, to include extraschedular consideration, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10; 4.71a, DC 5003, 5216-5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. By decision in October 2019, the Board denied entitlement to a compensable rating for residuals, old fracture right fifth metacarpal, and remanded another matter for further development. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand and vacated the Board’s decision that denied entitlement to a compensable rating for residuals, old fracture right fifth metacarpal for development consistent with the Joint Motion for Partial Remand. 1. Entitlement to a compensable disability rating for residuals, old fracture right fifth metacarpal (claimed as residuals from right hand injury) is denied. The Veteran was granted service connection for residuals, old fracture right fight metacarpal in September 2007 rating decision. In March 2012, he indicated that his disability had worsened and warranted a higher rating. The Veteran’s service-connected residuals, old fracture right fifth metacarpal disability is rated as noncompensable under 38 C.F.R. § 4.71a, DC 5230, effective May 2007. The Veteran asserts that a compensable rating is warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). The appeal period before the Board begins on March 20, 2012, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. 38 C.F.R. § 3.400 (o)(2); see also Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Procedural Background: As discussed in the Introduction, the Veteran appealed the Board’s October 2019 decision to the Court and in an August 2020 Joint Motion For Partial Remand (Joint Motion) the Court vacated and remanded the Board’s decision to the extent that it failed to discuss whether the Veteran was entitled to referral for extraschedular consideration for residuals of his right-hand injury. Given the August 2020 Joint Motion and Court Order, the Board will address whether the Veteran is entitled to a compensable rating for old fracture right fifth metacarpal disability, and whether he is entitled to referral for extraschedular consideration. Factual Background: In a May 2012 statement, the Veteran reported numbness, cramps, pain, and fatiguability. A May 2012 buddy statement from a F.A.F. reported witnessing the Veteran’s reduced grip strength, and occasional swelling. The Veteran underwent a VA examination for his right finger in June 2012. A diagnosis of degenerative or traumatic arthritis of the fifth metacarpal was rendered. The Veteran reported numbness, stiffness, intermittent pain, and tingling in the tip of his right fifth finger. There was no evidence of limitation of motion or painful motion for any fingers or thumb. Post repetitive use testing revealed no additional limitation of motion for any fingers, along with no functional loss or functional impairment of any finger or thumb. Ankylosis was not found. Pain on palpation was noted, and grip strength was measured at 5/5 for the right hand. The examiner found that the Veteran’s finger and hand condition did not exhibit functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation. The examiner lastly noted the Veteran’s report of functional impact due to difficulty writing, gripping, wiring, and pounding with right hand. A September 2013 VA examination for the Veteran’s right hand revealed no initial limitation of motion, no additional limitation of motion post repetitive use testing, no pain on palpation, 5/5 grip strength for right hand, no ankylosis, no assistive devices, and functional impact due to reports of numbness, reduced grip strength, and fatigability. The examiner further found that the Veteran’s finger and hand condition did not exhibit functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation. During a June 2019 Board hearing, the Veteran testified that he experiences numbness from his pinky finger to his wrist, discoloration, intermittent pain, spasms, and mental anguish. During the July 2019 VA examination, the Veteran’s range of motion (ROM) for his dominant right little finger was 5 degrees extension to 80 degrees flexion for MCP, 5 degrees extension to 85 degrees flexion PIP, and 5 degrees extension to 60 degrees flexion DIP. He reported periods of flare which consisted of tremors and shakes, and functional loss including reduced grip strength. Pain was noted on examination which causes functional loss. Upon observed repetitive use testing, there was no additional functional loss or LOM after three repetitions. Hand grip strength was rated 4/5 for the right hand, with no evidence of muscle atrophy, ankylosis, and functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation. After a review of all the evidence, the Board finds that the criteria for a compensable rating for residuals, old fracture right fight metacarpal have not been met. The Veteran’s right fifth finger disability has been rated under DC 5230, which contemplates limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a (2016). Under DC 5230, a non-compensable evaluation is warranted for any LOM of the little finger. Accordingly, DC 5230 cannot serve as a basis for an increased rating in this case. The Board has further considered whether an increased rating is warranted for the Veteran’s right fifth finger disability based on functional loss due to pain, weakness, excess fatigability, incoordination, and flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). If, however, the veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider the applicability of the above provisions. Johnston v Brown, 10 Vet. App. 85 (1997). The Board has considered all other potentially applicable rating criteria. DC 5227 is inapplicable as there is no ankylosis shown. Moreover, the little finger has not been amputated and there is no evidence that the disability approximates the equivalent of amputation of the little finger; thus, DC 5156 is also inapplicable. Lastly, a rating under DC 5003 cannot be combined with a rating based on LOM. Therefore, no higher or separate rating is warranted pursuant to DC 5003. Further, the Veteran has been separately granted service connection for his right wrist and numbness and pain due to neuropathy of the upper extremity. Accordingly, the Veteran does not meet the criteria for a compensable rating for his right fifth finger disability under any applicable rating criteria. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evidence shows generally the same symptoms throughout the period on appeal such that staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 -27 (1999). Extraschedular Consideration The Veteran through his representative has raised the issue of potential entitlement to and referral for extraschedular consideration in the August 2020 Joint Motion. As such, the Board will consider whether referral on an extraschedular basis is warranted. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The first element of extraschedular consideration requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. The Veteran asserts that his right fifth finger warrants an increased rating on an extraschedular basis. The Veteran reports ongoing pain, limitation of motion, weakness, stiffness, spasming, reduced grip strength, and difficulty lifting his tools, and writing for prolonged periods. Additionally, the Veteran’s representative has noted that the Veteran’s right fifth finger has arthritic changes which results in symptoms which have a significant effect on his occupational functioning. The Veteran’s representative further contends that the current diagnostic code only considers limitation of motion and thus extraschedular consideration is warranted. The question for the Board is whether referral for an increased rating is warranted on an extraschedular basis for right fifth finger disability at any point during the appeal. The Board concludes, that while the Veteran’s and his representative’s contentions have been considered, referral for consideration of an extraschedular rating is not warranted. The first Thun element is not satisfied here. The Veteran’s right fifth finger disability has been manifested by ongoing pain, weakness, stiffness, reports of spasming, and at times limitation of motion. Additionally, the Veteran has reported decreased grip strength and dexterity which impacts the Veteran’s daily activities of living and occupational tasks as he reports pain while holding, lifting and carrying items. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for the right fifth finger limitation of motion. The Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. The Veteran’s report of pain, limited motion, and weakness are all contemplated in the currently assigned disability evaluation. While some of the Veteran’s symptoms are not listed in the diagnostic code such as interference (but not preclusion) with lifting, holding, writing, and spasm, these are inherently contemplated by the overall rating criteria. 38 C.F.R. § 4.45. There is no evidence of ankylosis of the right fifth finger or any digits of the right hand, and the June 2012, September 2013, and July 2019 VA examinations all note that function has not been diminished to the extent that it would be equal to amputation with prothesis. In short, there is nothing exceptional or unusual about the Veteran’s right fifth finger disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted. As the ratings are adequate, then the Veteran’s disability picture is not exceptional, and further analysis into factors such as marked interference with employment and frequent periods of hospitalization should not be necessary (the Veteran did not meet the first step in Thun). See 38 C.F.R. § 3.321 (b)(1). Significantly, the Board notes that the Veteran’s service-connected right fifth finger disability results in unemployability; and a TDIU was granted accordingly; however, the service-connected disability did not result in any additional symptoms not already considered in the schedular criteria. As such, the Board does not find that the Veteran’s disability results in an exceptional disability picture such that referral to the Director of Compensation Service for an extraschedular rating determination is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.