Citation Nr: 21027354 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-35 711 DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 10 percent for osteoarthritis, left hand with post-traumatic changes, left little finger is denied. Entitlement to an increased, 10 percent rating for left little finger scar, effective September 23, 2014, is granted. FINDINGS OF FACT 1. The Veteran's left little finger disability is manifested by pain, limitation of motion, and x-ray evidence of arthritis. 2. The competent evidence of record indicates that the Veteran has one scar on his left little finger that is painful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for osteoarthritis, left hand with post-traumatic changes, left little finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5230. 2. The criteria for a 10 percent rating for left little finger scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1975 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs regional office (RO) in Newark, New Jersey. The Veteran testified before the undersigned at a videoconference in November 2019. A transcript of the hearing is associated with the claims file. The appeal was before the Board in January 2020, at which time the instant issues were remanded for additional development, all of which has been completed. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for osteoarthritis, left hand with post-traumatic changes, left little finger. By way of history, a December 2006 rating decision granted service connection for a left finger disability and assigned a 10 percent rating pursuant to Diagnostic Code 5230-5010, effective November 18, 2004. The Veteran filed an increased rating claim in September 2014, and this appeal followed. The hyphenated code reflects that the disability rating is assigned based on residual conditions resulting from traumatic arthritis. See 38 C.F.R. § 4.27. For digits II through V, the MCP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. Id. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis or limitation of motion), assigning the higher level of evaluation when the disability is equally balanced between one level and the next higher level. Id. at Note (2). Effective February 7, 2021, VA amended the criteria used to rate arthritis. 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). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeal under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, Diagnostic Code 5010 provided that arthritis due to trauma that is substantiated by x-ray findings should be rated as degenerative arthritis under Diagnostic Code 5003. Under both former and current Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, will warrant a 20 percent rating. The February 7, 2021 regulatory changes reworded Diagnostic Code 5010 from "Arthritis, due to trauma, substantiated by X-ray findings" to "Post-traumatic arthritis". Under the amended criteria, Diagnostic Code 5010 directs that the disability be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Under Diagnostic Code 5230, any limitation of motion of the ring or little finger is to be rated 0 percent. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (holding that the trigger for a minimum disability rating is an actual painful, unstable, or malaligned joint); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). However, there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the ring and little finger. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). The evidence includes the results of a January 2015 VA examination, which shows that the Veteran reported left pinky and hand pain stemming from an injury to his left hand in service. Physical examination showed no limitation of motion or evidence of painful motion for any fingers or thumb. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of motion for any fingers post-test. There was no gap between the thumb pad and any of the fingers post-test. There was no gap between any fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-test. There was no limitation of extension for the index finger or long finger post-test. There was no functional loss or functional impairment of any of the fingers or thumb. There was pain noted on palpation of the left hand. There was no evidence of ankylosis. The examiner noted that imaging studies of the hand had been performed and documented degenerative arthritis in the left hand, as well as slight deformity likely from the old trauma to the fifth DIP joint. The examiner added that neither pain, weakness, fatigability, nor incoordination significantly limited the Veteran's functional ability during flare-ups or when the joint was used repeatedly over a long period of time. There was no noted additional loss of range of motion due to pain on use or during flare-ups. At an August 2016 VA examination, the Veteran reported stiffness, decreased range of motion, and pain in the morning in his left hand. He did not report flare-ups. Left hand range of motion testing showed abnormal results. Specifically, left little finger testing showed MCP, PIP, and DIP extension to 0 degrees, and MCP flexion to 90 degrees, PIP flexion to 90 degrees, and DIP flexion to 40 degrees. There was no gap between the pad of the thumb and the fingers. Pain was noted on examination but did not result in functional loss. There was no pain noted with use of the hand. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted a slight deformity of the left little finger but noted that there was no ankylosis. In November 2016 Correspondence, the Veteran's attorney contended that the Veteran's left little finger disability warranted a 20 percent rating because the evidence showed involvement of two or more major joint or two or more minor joint groups with occasional incapacitating exacerbations. At his October 2019 Board hearing, the Veteran reported that his disability was in "constant pain, about a 7 [out of 10]," and had gotten worse. See Hearing Transcript at 2-3. For instance, he reported that he was unable to bear weight, easily pick coins off a table, manipulate shirt buttons, or make a fist with his left hand. Id. at 2-6. He reported that if he carried weight with his left hand, he was at risk of dropping whatever he was holding. Id. at 5-6. Subsequently, the Veteran underwent another VA fingers examination in August 2020. The Veteran denied experiencing flare-ups but reported functional loss in his left little finger. Left hand range of motion testing was all normal. No pain was noted on examination, and the Veteran was able to perform repetitive-use testing with at least three repetitions without additional functional loss post-test. The Veteran was examined immediately after repetitive use over time and range of motion testing was normal after repetitive use over time. Incoordination limited functional ability with repeated use over time. The examiner noted that there was less movement than normal in the left hand due to ankylosis, adhesions, etc., and also noted that there was no ankylosis in the left hand. As noted above, the Veteran's little finger disability is currently rated by analogy under Diagnostic Code 5010, which applies to traumatic arthritis. Under former Diagnostic Code 5010 and 5003 (which is incorporated by reference), when limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by that limitation of motion, to be combined, not added. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Here, because the evidence does not show X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations, a higher rating that the currently assigned 10 percent is not warranted under former Diagnostic Code 5010 and 5003. A higher rating is similarly not warranted based on limitation of motion, under both the former and current versions of Diagnostic Code 5010. Indeed, Diagnostic Code 5230 only provides for a noncompensable rating. The Board has considered whether the Veteran would be entitled to a higher or separate rating under any other code. Higher ratings under Diagnostic Codes 5216-5227 require a finding of ankylosis. Thus, even despite the Veteran's assertion at his October 2019 Board hearing that he struggled to straighten his left little finger, ankylosis of the little finger under Diagnostic Code 5227 only warrants a 0 percent rating. Finally, the Board has considered whether rating as amputation is warranted. However, the objective medical evidence is against a finding that the Veteran would be equally well served by amputation, and, as such, the Board finds that the symptoms of the left hand and finger disabilities are not equivalent to amputation of the fingers or loss of use of the hand. To the extent the Veteran's attorney contends that a higher, 20 percent rating is warranted under former 5010 and 5003 due to two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations, the Board notes that for the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45. The Board first notes that no major joint groups are involved in the Veteran's disability. The evidence also does not show two or more minor joint groups with occasional incapacitating exacerbations. Finally, to the extent the Veteran's attorney has argued in November 2016 Correspondence that an extraschedular rating is warranted, the Board notes that the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 38 C.F.R. § 3.321(b). Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, there is no evidence suggesting that the disability picture presented by the Veteran's left hand and left little finger disability is so exceptional that the schedular criteria are inadequate. The Veteran has endorsed pain, stiffness, difficulty making a fist, difficulty grabbing and holding items, and limitation of motion. The rating criteria for the hand and finger contemplate these symptoms. Furthermore, the relevant Diagnostic Codes provide for higher ratings for more severe symptoms. Lastly, the Board adds that there is no evidence that the Veteran has ever been hospitalized on account of his hand or finger. And, while the most recent, August 2020 VA examiner indicated that there would be some functional impairment insofar as the Veteran might have left finger pain if he had to carry more than 20 pounds, the Veteran himself has never alleged, nor does the evidence show, that his hand/finger disability causes marked interference with employment. As such, the Board concludes that the rating schedule adequately contemplates the Veteran's disability and that referral for extraschedular consideration is not warranted here. Therefore, the Board concludes that the currently assigned 10 percent rating under Diagnostic Code 5230-5010 is the most appropriate rating, and that the Veteran is not entitled to a rating in excess of 10 percent for his left-hand traumatic arthritis with little finger injury. Accordingly, the claim is denied. 2. Entitlement to a compensable rating for left little finger scar. A March 2009 rating decision granted service connection for a little finger scar and assigned a noncompensable (zero percent) rating pursuant to Diagnostic Code 7302, effective October 28, 2008. The Veteran filed an increased rating claim in September 2014, and this appeal ensued. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Veteran's scar has been rated under Diagnostic Code 7802. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. On examination in January 2015, the Veteran reported that there was pain on pressure to his scar. The examiner noted that the scar was not unstable. The scar measured 1.5 centimeters, and it was noted to be well-healed, without tissue loss, but tender on palpation. On August 2016 VA examination, the Veteran did not endorse pain, and the examiner indicated that the scar was neither painful nor unstable. The scar measured two centimeters and the examiner described it as a linear, superficial scar on the left 5th finger, on medial aspect, well-healed, skin colored, not deep or adherent to tissue, without any breakdown or loss of cover. There was no induration, ulceration, keloid, or swelling. The scar was not tender. At his October 2019 Board hearing, the Veteran testified that his scar was painful to the touch. Thus, he was scheduled for another scar examination, which took place in August 2020. The Veteran did not endorse that the scar was painful at the examination. It was not unstable. It measured 1.02 centimeters by 0.2 centimeters. The examiner indicated that there was no underlying tissue damage. The examiner stated that the scar resulted in an inability to completely bend the little finger. Board concludes that the Veteran's left little finger scar is painful and is more appropriately, and more advantageously rated under Diagnostic Code 7804. Under both the former and current criteria, Diagnostic Code 7804 allows for the award of a 10 percent rating for a scar that is painful. As noted above, the Veteran reported tenderness at his 2015 examination, which was acknowledged by the examiner at the time. The Veteran competently and credibly reported pain and tenderness again at his October 2019 hearing. A higher rating is not warranted under any other diagnostic code pertaining to scars. Because the scar is not of the head, face, or neck, is not associated with underlying tissue damage, and is not deep and non-linear, Diagnostic Codes 7800 and 7801 are inapplicable. A higher rating under Diagnostic Code 7802 is not applicable because the scar does not cover an area of 144 square inches or greater. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805, or otherwise compensated by the Veteran's other separate 10 percent rating for osteoarthritis, described above. In conclusion, the Board finds that the credible evidence supports an increased, 10 percent rating, but no higher, pursuant to Diagnostic Code 7804, effective the date of the Veteran's claim for increase, September 23, 2014. To this extent, the appeal is granted. The Board adds that it is not factually ascertainable that a worsening in symptoms occurred during the one-year period prior to the Veteran's September 23, 2014 claim for increase. As such, the increased rating to 10 percent for the Veteran's scar is made effective the date of claim. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.