Citation Nr: 21025620 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-21 927 DATE: April 28, 2021 ORDER Entitlement to a 10 percent rating, but no higher, throughout the entire appeal period for left index finger tendonitis is granted. Entitlement to a rating higher than 10 percent for left palm Dupuytren's Contracture is denied. Entitlement to a rating higher than 10 percent for left wrist tendonitis is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise that throughout the entire appeal period, the Veteran’s left index finger manifested during a flare-up with a gap of one inch 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. He has been assigned the highest schedular rating available for index finger limitation of motion, and he has not had ankylosis or the functional equivalent of ankylosis. 2. Symptoms of the Veteran’s left hand and finger disability do not more nearly approximate limitation of the left thumb with a gap of more than two inches between the thumb pad and the fingers; and there was no ankylosis of the right thumb or other joint of the hand or fingers. 3. The Veteran's right wrist disorder, at worst, was manifested by pain, numbness, loss of locomotion, palmar flexion at 40 degrees and dorsiflexion at 30 degrees. It has not had any ankylosis or the functional equivalent of ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, for left index finger tendonitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5229. 2. The criteria for entitlement to a rating in excess of 10 percent for left palm Dupuytren's Contracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, DC 5309. 3. The criteria for entitlement to a rating in excess of 10 percent for left wrist tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.27, 4.71a, DCs 5214, 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to May 1983 and from April 1984 to July 1990. The matter was most recently remanded in a September 2018 Board remand. The Board notes the Veteran has indicated other disabilities are related to the disabilities of his left hand and wrist. For example, that the pain medication he takes has led to stomach issues, and that the use of his right hand to compensate for the left has resulted in pain and impairment of the right hand and wrist. Applications for these conditions, which may be secondary to the Veteran’s service-connected left wrist and hand disabilities, have not been received. Should the Veteran wish to pursue service connection for these separate disabilities an application should be filed. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40 , 4.45; Deluca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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). 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). The amendments did not revise any of the diagnostic codes applicable in this case, however, and would not allow for any higher ratings for these disorders. 1. Entitlement to a compensable rating for left index finger tendonitis The Veteran currently has a noncompensable rating for left index finger tendonitis, which is currently rated under DC 5229. DC 5229 contemplates limitation of motion of the index or long finger. A gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees warrants a noncompensable rating. A gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed the extent possible, or; extension limited by more than 30 degrees warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5229. The next higher ratings coming under DC 5224 for ankylosis of the thumb and DCs 5220-5223 for ankylosis of at least two digits on the same hand. The Veteran underwent VA examinations to evaluate his hand and fingers in May 2014, February 2016, April 2017, November 2019, and July 2020. The Veteran consistently reported pain, loss of feeling, and difficultly moving the fingers. The Veteran also reported flare-ups that resulted in increased pain and difficulty moving his fingers and grasping. The June 2014 VA examiner noted painful motion of the left long and index finger, and a gap of less than one inch between the thumb pad and the fingers, and left index, long, and ring finger flexion. This is also where pain began. No limitation of extension or pain on extension was noted. Repeated use yielded the same results of pain and a gap of less than one inch. Muscle strength testing indicated active movement against some resistance bilaterally. No ankylosis was noted. At the February 2016 VA examination abnormal ROM was noted. The Veteran’s PIP and DIP flexion was reduced on the left hand for all fingers and the thumb. The examiner noted a gap of 4 cm between the left index finger and the proximal transverse crease of the hand on the maximal finger flexion. There was no change after repeated use, or during a flare-up. Strength testing was normal, and no muscle atrophy was noted. Ankylosis was not noted. The findings at the November 2019 VA examination were essentially the same. Reduced ROM in flexion of all joints was noted in all the fingers of the left hand. A gap of 2 cm between the pad of the thumb and the fingers was noted, and a gap of 3 cm between the finger and the proximal transverse crease of the hand on the maximal finger flexion was noted. The examiner noted limited ability to make a fist, shake hands, grip, or hold and release an object with the left hand. The July 2020 VA examination indicated normal ROM at all times and found no gaps. Muscle strength was normal, no muscle atrophy was noted, and ankylosis was not noted. The Veteran reported increased pain during a flare-up. The examiner indicated the Veteran was unable to lift more than 30 lbs. with the left hand or do heavy, manual work with left hand. The Board notes there was an examination in April 2017, however the examiner did not obtain ROM measurements and the Veteran has disputed the adequacy of this examination. As there are other examination reports that more thoroughly document the Veteran’s condition, and which the Veteran has not challenged, the Board assigns the April 2017 VA examination report low probative value in determining the severity of the Veteran’s condition. The Board finds the evidence is at least in equipoise that during a “flare-up,” which are periods of increased pain and decreased function, the Veteran’s condition has been consistent throughout the appeal period and manifests with increased pain and limitation of flexion. As such, the Board finds the measurements from February 2016 are applicable throughout the appeal period as this examination was done during a flare-up and these measurements are the worst ROM demonstrated on any examination. Based on this, the Board finds the Veteran is entitled to a 10 percent rating for a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed the extent possible, or; extension limited by more than 30 degrees. Ten percent is the highest schedular rating available for limitation of motion in the index finger. 38 C.F.R. § 4.71a, DC 5229. Even under DC 5225, which considers ankylosis in the index finger, 10 percent is the highest possible rating. A higher rating is not warranted under other diagnostic codes. The Board finds the Veteran is not entitled to a rating under 5224 as he is not service connected for impairment of the thumb. Similarly, the Veteran is not entitled to a rating under DCs 5220-5223 as he is only service connected for impairment of the index finger and not the other fingers, and ankylosis was not noted on any of the examinations for any of the digits of the left hand. VA regulations allow for consideration of a Veteran’s pain and its impact on his functional mobility when assigning evaluations. Actually painful joints are entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415 (2015). In this case, the Veteran has been assigned the minimum compensable rating for his left index finger disorder, and this rating is already based on consideration of pain and increased pain with flare ups that cause limitation of motion. The provisions of DeLuca also do not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In sum, the Board affords the Veteran the benefit of the doubt and awards a 10 percent rating for left index finger tendonitis, but the rating criteria do not allow for any higher ratings. 2. Entitlement to a rating in excess of 10 percent for left palm Dupuytren's Contracture The Veteran is currently rated at 10 percent for his left palm Dupuytren’s Contracture, which is currently rated under DC 5309. DC 5309 provides that as to injury of Muscle Group IX, the forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The intrinsic muscles of the hand are: Thenar eminence; short flexor, opponens, abductor and adductor of the thumb; hypothenar eminence: short flexor, opponens and abductor of the little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei. A Note to DC 5309 provides that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Rating is to be made on the basis of limitation of motion, with a minimum rating of 10 percent. Limitation of motion of the individual digits are rated under DCs 5228-5230. DC 5228 deals with limitation of motion of the thumb. A 10 percent rating is assigned when there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers. Limitation of motion in the index or long finger is rated under Diagnostic Code 5229. A maximum 10 percent rating is assigned when there is a gap of one inch 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. Only a noncompensable rating is available for limitation of motion in the ring finger or little finger. Limitation of motion of the ring or little finger is rated under DC 5230 and is noncompensable for any limitation of motion. In this case, the Veteran has already been assigned the minimum rating of 10 percent. There is no indication that he has any additional symptomatology of limitation of motion in a hand or finger joint which would warrant additional or separate ratings. Of the relevant diagnostic codes, the only one that could result in a higher rating than 10 percent is limitation of motion of the thumb. Limitation of motion of the thumb has been noted at VA examinations. However, the greatest limitation recorded was 2 cm, which equates to a noncompensable rating under DC 5228. The Veteran is already compensated, as of this decision for limitation of motion of the left index finger under DC 5229 at 10 percent. As such, providing another rating for limitation of motion for the index finger would result in pyramiding. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or, more appropriately in this case, the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Evidence does not support a finding that the Veteran’s limitation of motion of any of the fingers or joints of his left hand warrants a rating in excess of 10 percent, and there are no other diagnostic codes which the Board find are applicable based on the symptoms which have been demonstrated on examination. As such, a rating in excess of the minimum 10 percent provided by DC 5309 is not warranted. 3. Entitlement to a rating in excess of 10 percent for left wrist tendonitis The Veteran is currently rated at 10 percent for left wrist tendonitis, which is currently rated under DC 5215. DC 5215 is used for limitation of motion of the wrist. A 10 percent rating is warranted for palmar flexion limited in line with forearm or for dorsiflexion less than 15 degrees. A 10 percent rating is the highest rating available under DC 5215 for both the major and minor joint (dominant and nondominant), with the next higher rating coming under DC 5214 for ankylosis of the wrist, rated between 20 and 50 percent. The February 2016 VA examination was conducted during a flare-up. The Veteran’s ROM measured, palmar flexion to 60 degrees, ulnar deviation to 45 degrees, dorsiflexion to 30 degrees, and radial deviation to 10 degrees. The examiner noted localized tenderness and pain. Pain was also noted on ROM. Muscle strength was normal, no muscle atrophy was noted, and no ankylosis was noted. The November 2019 VA examination was not conducted during a flare-up; however, the VA examiner was able to estimate ROM during a flare-up. During a flare-up the Veteran’s ROM decreased to palmar flexion to 40 degrees, dorsiflexion to 30 degrees, ulnar deviation to 5 degrees, and radial deviation to 5 degrees. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination contributed to loss of motion. The examiner also noted additional factors contributing to the Veteran’s left wrist disability including weakened movement, deformity, atrophy of disuse, and disturbance of locomotion. Muscle strength was reduced, indicating active movement against gravity. Atrophy was noted. The circumference of the more normal side measured 16 cm and the circumference of the atrophied side measured 14.5 cm. Ankylosis was not noted. At the July 2020 VA examination the ROM was again the worst during a flare-up. The examiner estimated the Veteran’s ROM during a flare-up would be palmar flexion to 45 degrees, dorsiflexion to 45 degrees, ulnar deviation to 45 degrees, and radial deviation was normal. The examiner indicated that pain contributed to functional loss during a flare-up. Muscle strength of the left wrist was normal, no muscle atrophy was indicated, nor was ankylosis noted. The Veteran is currently in receipt of the highest rating under DC 5215 for limitation of motion of the wrist. A higher rating is not warranted without a showing of ankylosis. The VA examiners have consistently indicated there is no ankylosis of the left wrist. The Board acknowledges the Veteran has consistently reported pain in the wrist which limits his ROM, that he does not use his left wrist because of the pain, and that he loses grip in the left hand. The November 2019 examiner noted reduced strength of the left wrist and muscle atrophy because of disuse. The Board has considered whether a higher rating is warranted due to the Veteran’s pain limiting his motion to a degree that an increased rating would be warranted. The Board finds that despite notations of functional loss due to pain, loss of coordination, a weakened movement, the overall disability picture is not that of an ankylosed left wrist. Generally, ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992). None of the VA examiners or treatment providers ever found the Veteran to have ankylosis, and while the Veteran limits the use of his wrist due to pain and has been noted to have atrophy from disuse, he has, at all times, maintained at least some range of motion in his wrist. The Board therefore finds that the Veteran has not had left wrist ankylosis or functional impairment which is of such severity that it is the equivalent of ankylosis. The Board also notes that a higher rating is not warrant on the basis of functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, per DeLuca, because a higher evaluation requires ankylosis. See Johnston, 10 Vet. App. at 85. In sum, the Board finds that the criteria have not been met for a rating higher than 10 percent for left wrist tendonitis. The Board has considered the Veteran’s competent lay statements regarding the functional impact of his hand, wrist, and finger disorders. He is competent to report his own observations with regard to the severity of his disability, including reports of having pain in his hand with even simple activities like picking up a gallon of milk or putting on a seatbelt. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He has written that he has lost most of the grip in his hand and constantly drops things. The Veteran’s statements are credible and consistent with the ratings assigned. The occurrence of pain and difficulty while performing physical activities is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, her statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. In reaching all of the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against assignment of any higher ratings. See 38 U.S.C. § 5107(b). Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.