Citation Nr: 21026350 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-15 107 DATE: April 30, 2021 ORDER Entitlement to an increased initial rating in excess of 10 percent for left index finger is denied. Entitlement to an increased initial rating in excess of 10 percent for left long finger degenerative joint disease is denied. Entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left index finger is granted. Entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left long finger is granted. Entitlement to a rating in excess of 10 percent for posttraumatic causalgia of the left hand is denied. FINDINGS OF FACT 1. The Veteran’s injury to the index and long fingers on the left hand is characterized by complaints of pain; ankylosis, incapacitating episodes of arthritis, and/or limitation in functioning of these fingers equivalent to amputation has not been shown. 2. The Veteran’s left index finger degenerative joint disease manifests as painful, limited motion of the left index finger. 3. The Veteran’s left long finger degenerative joint disease manifests as painful, limited motion of the left long finger. 4. The Veteran’s posttraumatic causalgia is manifested by no more than mild incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased initial rating in excess of 10 percent for left index finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5229. 2. The criteria for entitlement to an increased initial rating in excess of 10 percent for left long finger degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5229. 3. The criteria for entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left index finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 4. The criteria for entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left long finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 5. The criteria for entitlement to a rating in excess of 10 percent for posttraumatic causalgia of the left hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8799-8715. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1967. In October 2018, the Board, inter alia, denied entitlement to an initial rating in excess of 10 percent for left index finger and long finger degenerative joint disease, and a rating in excess of 10 percent for post-traumatic causalgia of the left hand. The Veteran appealed the Board’s decision to the U.S Court of Appeals for Veterans Claims (Court). In October 2019, the Veteran’s then-representative and the VA General Counsel filed a Joint Motion for Partial Remand (JMPR). Later that month, the Court granted the JMPR, and remanded the Veteran’s claims to the Board for readjudication consistent with the JMPR. In the JMPR, it was noted that (a) separate compensable ratings for painful motion of the left index and long fingers may be warranted, and (b) the August 2014 VA left hand examination was inadequate for rating purposes because, despite the appellant’s reports and descriptions of flare-ups, the VA examiner did not offer an opinion as to additional loss of motion during flare-ups because, without examining the appellant during a flare-up, it would be speculative to do so. In April 2020, the Board remanded the Veteran’s claims for the necessary additional development, including a new VA examination. Increased Rating The Veteran is seeking increased ratings for his service-connected injury to his left index and long fingers, as well as his left hand disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased initial rating in excess of 10 percent for left index finger degenerative joint disease 2. Entitlement to an increased initial rating in excess of 10 percent for left long finger degenerative joint disease 3. Entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left index finger 4. Entitlement to a separate 10 percent disability rating for the left finger degenerative joint disease under Diagnostic Code 5229 based upon painful, limited motion of the left long finger The Veteran’s finger and hand disabilities were granted service-connected in an October 2013 rating decision, with 10 percent ratings effective May 25, 2012. The Veteran underwent a VA examination in August 2014 in connection with his June 2014 claim for an increased rating for these disabilities. Nonetheless, as noted above, that examination has been determined to be inadequate for rating purposes. The Veteran was afforded a new VA examination for his left hand and fingers in August 2020. the examiner confirmed that the Veteran had a diagnosis of left finger and long finger degenerative joint disease, as well as posttraumatic causalgia of the left hand. The Veteran described his current symptoms as weakness of the left hand and arm, stick pin like feeling from fingers through arm past the elbow, and sometimes mild swelling in fingers. He also described that he did not have a strong grip, and that he could not sleep at night due to the pain waking him up. He further described that he it seemed like when he got weakness in his left hand and arm, his upper body also became weak and he is forced to stop doing the activity he is doing. As to flare-ups, the Veteran reported that he experienced flare-ups of the left hand up to several times a day, and that the flare-ups were moderate to severe in nature. He reported that the duration of his left hand flare-ups varied, but was sometimes all day, sometimes a day, sometimes a week, and sometimes longer than a week. These flare-ups are reportedly precipitated by windings of his arms, slinging his arm, and exercise. He stated that sleeping on his left arm, leaning on his left arm, and lifting with his land also precipitated flare-ups. His flare-ups were alleviated by stretching out his left hand and arm. The examiner noted that the Veteran reported functional loss, described as an active choice to not use his left hand most of the time because it is so much weaker than his right. Initial range of motion testing produced all normal results. The Veteran’s index finger had max extension to 0 for MCP, PIP, and DIP. His index finger had max flexion to 90 degrees for MCP, 100 degrees for PIP, and 70 degrees for DIP. The Veteran’s long finger had max tension to 0 for MCP, PIP, and DIP. The long finger had max flexion to 90 degrees for MCP, 100 degrees for PIP, and 70 degrees for DIP. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was pain noted on the examination with related functional loss. The examiner noted that finger flexion range of motion caused pain, and there was evidence of pain with use of the hand. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range or range of motion after the three repetitions. The examiner noted that while the Veteran was not being examined immediately following repetitive use over time, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain, fatigue, and weakness significantly limited functional ability with repeated use overt time. In terms of range of motion, the Veteran’s index finger had max flexion of 85 degrees, to 90 degrees for MCP, 95 degrees to 100 degrees for PIP, and 65 degrees to 70 degrees for DIP. The Veteran’s long finger also had max flexion of 85 degrees, to 90 degrees for MCP, 95 degrees to 100 degrees for PIP, and 65 degrees to 70 degrees for DIP. The examiner noted that the examination was not being performed during a flare-up, but the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. The examiner noted that pain and fatigue significantly limited functional ability with repeated use over time. In range of motion, the Veteran’s index finger had max flexion of 85 degrees, to 90 degrees for MCP, 95 degrees to 100 degrees for PIP, and 65 degrees to 70 degrees for DIP. The Veteran’s long finger also had max flexion of 85 degrees, to 90 degrees for MCP, 95 degrees to 100 degrees for PIP, and 65 degrees to 70 degrees for DIP. The examiner noted that the Veteran also had deformity of the left hand which contributed to his disability. The Veteran’s left hand grip was described as 3 out of 5, or active movement against gravity. There was no apparent muscle atrophy, and no ankylosis of the left hand or fingers. The examiner found that the Veteran’s hand disabilities impacted his ability to work, specifically the Veteran had difficulty with gripping, and opening things. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the left hand, and there was objective evidence of pain on non-weight bearing testing of the left hand. The examiner also noted that the left index finger exhibited pain for finger flexion, and left long finger exhibited pain for finger flexion, and the left ring finger exhibited pain for finger flexion. The examiner confirmed that there was no change in the diagnosis of posttraumatic causalgia of the left hand, or of the left index finger and long finger degenerative joint disease. The Veteran’s left index finger and long finger degenerative joint disease has been rated 10 percent under Diagnostic Code 5010-5229. This is the maximum rating under DC 5229. A higher 20 percent rating can be assigned under DC 5010 for traumatic arthritis that affects two or more major/minor joints with occasional episodes of incapacitating episodes. 38 C.F.R. § 4.71a. Nevertheless, a higher rating under this diagnostic code is not warranted as the medical evidence, including from the August 2014 VA examination, January and April 2015 VA treatment records, and August 2020 VA examination fail to indicate that the Veteran had any episodes of incapacitation. Nonetheless, the Board notes that DC 5229 and DC 5228 include ratings for limitation of motion of the index finger or long finger. In the present case, the Veteran’s index and long finger on the left hand have been awarded a single 10 percent rating. However, as pointed out by CAVC, the Veteran may potentially be awarded separate 10 percent ratings for his individual fingers. The Board finds that the Veteran’s index and longer fingers are two distinct fingers each with degenerative joint disease, and individual painful motion. Therefore, the Veteran’s degenerative joint disease of the index and long finger should be reclassified and awarded separate ratings in the form of a 10 percent rating for his left index finger disability, and a 10 percent rating for his left long finger disability under Diagnostic Code 5010-5229. There are a number of other diagnostic codes that are potentially applicable under 38 C.F.R. 4.71a. Specifically, Diagnostic Codes 5216 to 5224 are for application when there is ankylosis of the fingers and/or thumb. However, there is no evidence that the Veteran has ankylosis in any of his fingers. Consideration has also been given to DCs 5153 and 5154, which allows for a 20 percent rating when there is an amputation with metacarpal resection. However, the assignment of an analogous rating would be inappropriate in the present case. Notably, VA examinations in August 2012 and August 2014 indicate that the Veteran retained active motion in all fingers of the left hand. Based on such evidence, it is clear that Veteran derives greater function from his fingers than if the fingers were amputated. If there is limitation of motion of two or more digits, each digit is evaluated separately, and the evaluations are combined. See 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (5). Thus, because the hand allows multiple digits to be combined into a single rating, it is necessary to include all possible higher digit combination criteria. In this case, the medical evidence of record shows that the Veteran’s finger disabilities cause functional loss, and limit his ability to work. The August 2020 examiner noted that pain and fatigue significantly limited the Veteran’s functional ability with repeated use over time. During range of motion testing, the examiner noted that there was pain with related functional loss. Therefore, separate 10 percent ratings are warranted for the long and index fingers under Diagnostic Code 5229, to be combined with the 10 ratings under Diagnostic Code 5010-5229. This is the highest schedular rating for limitation of motion of the index or long fingers. A disability rating in excess of 10 percent for the left long and index finger degenerative joint disease under 5229 is denied. However, separate 10 percent ratings are assigned under Diagnostic Code 5229 for both the long and index finger. To the extent higher or additional and/ or separate ratings are sought, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  5. Entitlement to a rating in excess of 10 percent for posttraumatic causalgia of the left hand The Veteran’s finger and hand disabilities were granted service-connected in an October 2013 rating decision, with 10 percent ratings effective May 25, 2012. The Veteran’s posttraumatic causalgia of the left hand has been rated under Diagnostic Code 8799-8715. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. In this case, the designation of “8799” before the hyphen indicates that the Veteran’s disability is an unlisted form of neuralgia of the peripheral nerves. Diagnostic Code 8715 is listed after the hyphen to establish that the service-connected peripheral neuropathy is similar to impairment of the median nerve. Diagnostic Codes 8510-8719 address ratings for paralysis, neuritis, and neuralgia of the peripheral nerves affecting the upper extremities, and provide different disability ratings for the major (dominant) and minor (non-dominant) side. 38 C.F.R. § 4.124a. The Veteran is right-hand dominant. See December 2020 VA Examination. Diagnostic Codes 8515, 8615, and 8715 provide ratings for paralysis, neuritis, and neuralgia, respectively, of the median nerve. Diagnostic Code 8515, provides a 70 percent disability rating for the major arm and a 60 percent disability rating for the minor arm for complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 50 percent disability rating is assigned to the major arm and a 40 percent disability rating is assigned to the minor arm for severe incomplete paralysis. A 30 percent disability rating is assigned to the major arm and a 20 percent disability rating is assigned to the minor arm for moderate incomplete paralysis. A 10 percent disability rating is assigned for mild incomplete paralysis bilaterally. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Normal ranges of motion of the wrist are dorsiflexion (extension) from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. 38 C.F.R. § 4.71, Plate I. Neuritis and neuralgia are to be rated as incomplete paralysis. Neuritis, “characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating,” shall not be rated higher than severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for “neuritis not characterized by organic changes referred to in this section” is moderate, or with sciatic nerve involvement, moderately-severe incomplete paralysis. Id. Neuralgia, “characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve,” shall not be rated higher than moderate incomplete paralysis. 38 C.F.R. § 4.124. The Rating Schedule further clarifies that “when the [neural] involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree” incomplete paralysis. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. At a VA examination in August 2012, while the Veteran complained of worsening pain and trouble bending his fingers with achiness and tightness, the VA examiner determined that the Veteran did not have any nerve impairment caused by his disability that affected his left hand. In an August 2014 VA examination, the Veteran did not have any impairment to the median nerve in his left hand. While the Veteran stated that his hand symptoms have been worsening with flare-ups occurring 3-4 times a month that were aggravated by movement, his median nerve was found to be “normal” on examination. To the extent the Veteran had pain and sensory impairment, the examiner determined that the Veteran had bilateral carpal tunnel that was related to his nonservice-connected neck disability. The Veteran’s treatment records, including from October 2014 and April 2015, reflect that he had left hand pain. Most recently, the Veteran underwent a peripheral neuropathy examination in December 2020. The examiner confirmed the Veteran’s diagnosis of causalgia of the left upper limb. The Veteran described his current symptoms as tingling of the fingers and stiffness. He explained that numbness started in the fingers, but now goes up his arm. The Veteran described that on the job he previously used hand tying brakes, climbed ladders, and used throwing switches. Around the house he used to be able to use gripping tools, lift objects, and screw jar lids. The Veteran clarified his right hand is his dominant hand. The examiner noted that the Veteran had constant severe pain in his left upper extremity, severe intermittent pain in his left upper extremity, and severe paresthesias and or dysesthesias in his left upper extremity. The Veteran also suffered from severe numbness in his left upper extremity. The Veteran’s strength was rated as follows: 4/5 left elbow flexion, 4/5 left elbow extension, 4/5 left wrist flexion, 4/5 left wrist extension, 4/5 left grip, and 4/5 left pinch. The examiner noted that the Veteran did not have muscle atrophy. Deep tendon reflexes were all normal. The Veteran’s shoulder area and tested normal for light touch, but the hand and fingers and the inner and the outer left forearm had decreased light touch. The Veteran’s left radial nerve exhibited mild incomplete paralysis. The Veteran’s median nerve also exhibited mild incomplete paralysis. The Veteran’s circumflex, long thoracic, ulnar, upper radicular group, middle radicular group, lower radicular group, and musculocutaneous nerve were normal. The examiner noted that the Veteran used a cane occasionally. Following EMG studies of the left upper extremity, the examiner noted that there were abnormal results. Specifically, there was left medial nerve focal demyelinating sensomotor mononeuropathy at or near the wrist. In addition, there was left ulnar nerve focal demyelinating mononeuropathy at or near the elbow. The examiner concluded that the Veteran’s condition impacted his ability to work, causing trouble with lifting and gripping things, as well as pushing and pulling. Following the December 2020 VA examination, the RO requested an addendum opinion. The RO noted that the Veteran also had a history of bilateral carpal tunnel syndrome, and as such asked the examiner to identify which of the Veteran’s current symptoms were due to his causalgia. In a December 2020 addendum opinion, a VA examiner determined that based on her review of the medical records the Veteran was service-connected for posttraumatic causalgia of the left hand. She noted that a neurologist endorsed causalgia and neuralgia of the median nerve as shown on a rating decision dated 1992. an EMG of the left hand dated 2013 showed prolonged distal latencies in the left median motor and sensory nerve. Recent VA hand and finger examination dated 2013 noted the Veteran’s history of bilateral carpal tunnel. The examiner explained that carpal tunnel syndrome is caused by pressure on the median nerve as it travels through the carpal tunnel. The median nerve originates from the lateral and medial cords of the brachial plexus, and has contributions from ventral roots of C5-C7 (lateral cord) and C8 and T1(medial cord). The median nerve is the only nerve that passes through the carpal tunnel; this commonly impacts the long and middle fingers. The examiner deduced that given the Veteran’s pre-existing chronic left hand injury with neuralgia of the median nerve, repetitive over use of the same hand and wrist motions or activities over a prolonged period of time may aggravate the tendons in the wrist, causing swelling and increase that puts pressure on the nerve causing the Veteran’s recent carpal tunnel diagnosis. Considering all the evidence, the examiner determined that it was at least as likely as not that the Veteran’s left carpal tunnel was due to causalgia affecting the left median nerve. The Board finds that the Veteran has not been found to have more than mild incomplete paralysis of the median nerve and there is no evidence of symptoms that meet the criteria for more than mild incomplete paralysis, at any time during the appeal. As such, the Board finds that a rating in excess of 10 percent is not warranted for posttraumatic causalgia of the left hand under Diagnostic Code 8515. The Board notes that the December 2020 VA examiner found that the Veteran’s left radial nerve exhibited mild incomplete paralysis, and that the median nerve also exhibited mild incomplete paralysis. The Veteran’s circumflex, long thoracic, ulnar, upper radicular group, middle radicular group, lower radicular group, and musculocutaneous nerve were normal. The Board has found no other section that provides a basis upon which to assign a higher disability evaluation or separate compensable evaluation for the Veteran’s left hand disability. The Veteran had not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  (Continued on the next page)   (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.