Citation Nr: 21027401 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-18 362 DATE: May 5, 2021 ORDER The claim for a higher rating than 10 percent for osteoarthritis of the cervical spine, from December 21, 2009 to September 2, 2013, is denied. A 20 percent rating for osteoarthritis of the cervical spine, from September 3, 2013 to August 6, 2020, is granted. The claim for a higher rating than 20 percent for osteoarthritis of the cervical spine, since August 7, 2020, is denied. The claim for a higher rating than 10 percent for osteoarthritis, right hand with favorable ankylosis of the right thumb, is denied. The claim for increased rating for osteoarthritis, left hand with favorable ankylosis of the left thumb and index finger, evaluated at 10 percent prior to August 7, 2020 and at 20 percent since, is denied. FINDINGS OF FACT 1. Prior to September 3, 2013, the cervical spine condition did not involve one of the following: forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or; the combined range of motion of the cervical spine not greater than 170 degrees, or; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From September 3, 2013 to August 6, 2020, the condition of cervical spine osteoarthritis demonstrated forward flexion to 30 degrees when factoring in functional loss due to pain and other relevant factors. 3. Since August 7, 2020, there was not forward flexion of the cervical spine limited to 15 degrees or less, nor any form of ankylosis. 4. The Veteran's service-connected osteoarthritis of the hands involved the findings of more recently demonstrated right thumb favorable ankylosis, left thumb and left index finger favorable ankylosis, and along with intermittently present documented limitation of motion that is recognized under the VA rating schedule, though not warranting any further level of compensation than already had been awarded. CONCLUSIONS OF LAW 1. The criteria are not met for a higher rating than 10 percent for osteoarthritis of the cervical spine, from December 21, 2009 to September 2, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish a 20 percent rating for cervical spine osteoarthritis from September 3, 2013 to August 6, 2020. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 3. The criteria are not met for a higher rating than 20 percent for osteoarthritis of the cervical spine, from August 7, 2020 onwards. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 4. The criteria are not met for a rating in excess of 10 percent for osteoarthritis, right hand with favorable ankylosis of the right thumb. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5223, 5224 (2020). 5. The criteria are not met for a higher rating for osteoarthritis, left hand with favorable ankylosis of the left thumb and index finger, evaluated at 10 percent prior to August 7, 2020 and at 20 percent onwards. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5223, 5224 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from April 1967 until his retirement in November 1990. During the pendency of the appeal, a January 2016 hearing was held before a Decision Review Officer (DRO) at the VA Regional Office (RO), the transcript of which is of record. There was previously scheduled a Board hearing before a Veterans Law Judge (VLJ) in this matter, however the Veteran's representative withdrew that request before the scheduled proceeding. The July 2019 Board decision/remand granted a claim then on appeal for service connection for headaches, then remanded the claims for increased rating for the bilateral hand and cervical spine joint conditions for further development. Following completion of the requested development by VA examination, a September 2020 RO rating decision granting partial increases for the left hand and cervical spine conditions. The claims for still higher schedular ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Additionally, at the outset the VA duty to notify and assist obligations were met under The Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2020). There were obtained VA medical records and private treatment records, and several VA examinations were completed, including recently in September 2020 in response to a prior Board remand directive for more comprehensive findings. The Veteran attended a DRO hearing. While a Board hearing was requested the Veteran later cancelled it in advance of the scheduled hearing date. There is no indication of any further relevant evidence and information not already obtained. The Board will proceed to consideration of the case. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 1. The claim for increased rating for osteoarthritis of the cervical spine. The service-connected cervical spine osteoarthritis has been rated at 10 percent prior to August 7, 2020, then at 20 percent since then, in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine. That condition is then evaluated pursuant to VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula provides for the assignment of a 10 percent rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent is assigned for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is for assignment where there is unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Normal range of motion of the cervical spine is considered forward flexion to 45 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right lateral rotation 80 degrees. 38 C.F.R. § 4.71a, Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The rating criteria cited pertains to the complete appeal period being considered. There were several portions of the VA rating schedule that addresses the musculoskeletal system which were revised, effective February 7, 2021. See 85 Fed. Reg. 76464 (eff. Feb. 7, 2021). For the current case, the rating criteria did not change substantively. The revised regulation does give a different definition for Diagnostic Code 5242 that does not affect any of the issues for this case. Diagnostic Code 5242 now applies to "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome." As indicated however, the actual rating criteria remains the same. Based on the evidence and findings, the compensation scheme for the condition is increased as regarding one relevant time period, the ratings otherwise continuing at current level. Specifically, from September 3, 2013 to August 6, 2020, a higher 20 percent rating is granted. Apart from this result, the preponderance of the evidence does not substantiate any additional favorable outcome as to the claim for increased rating for service-connected cervical spine osteoarthritis. The current rating scheme otherwise appears to already represent the nature and extent of service-connected disability, including increase from 10 to 20 percent effective August 7, 2020 that as due to limitation of motion. As to the VA rating criteria, when considering the time period prior to August 7, 2020, to warrant the next higher 20 percent rating one of the following would be required: (1) Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or; (2) the combined range of motion of the cervical spine not greater than 170 degrees, or; (3) muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. From August 7, 2020, in order to warrant the next higher 30 percent rating, there would be required the following: forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Reviewing the evidence, since the December 2009 claim for increased rating was filed, the Veteran underwent VA Compensation and Pension examination July 2010, indicating he reported having had neck pain for several years, and now decreased range of motion. He took Diclofenac for his aches and pain. The course since onset was described as progressively worse. There was no history of hospitalization or surgery, spine trauma, spine neoplasm. There was decreased motion, stiffness, weakness, spasm, spine pain that was mild constant and daily. There were no incapacitating episodes of spine disease. There were no assistive devices used. He was able to walk 1-3 miles. Inspection of the spine showed normal posture, normal head position, symmetry in appears, normal gait. There were not any abnormal spinal curvatures including kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, or scoliosis. There was no cervical spine ankylosis. There were no objective abnormalities of the cervical sacrospinalis. There was not muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion measurements were flexion to 40 degrees, extension to 39 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, right lateral rotation 40 degrees, left lateral rotation 40 degrees. There was objective evidence of pain on range of motion. There was not additional limitation after three repetitions of range of motion. An MRI showed the impression of degenerative changes of the cervical spine. There was no history of any vertebral fracture claimed or present. The Veteran was employed on a full-time basis. It was indicated having lost time from working approximately 2 weeks out of the previous year due to arthritis. The diagnosis was degenerative changes of the cervical spine. In his August 2011 statement, the Veteran contended a 20 percent rating would be warranted at that time, because there was MRI evidence of moderate to severe degeneration and per 38 C.F.R. § 4.45, "multiple involvements of the... cervical vertebrae... are considered groups of minor joints, ratable on a parity with major joints." It was contended that this would meet the requirements for a 20 percent rating under Diagnostic Code 5003. On re-examination September 2013, the diagnosis at outset was osteoarthritis cervical spine. The Veteran described having undergone physical therapy, having retired in 2012 secondary to his symptoms. Since late 2009 there was described noticing symptoms of decreased range of motion and stiffness to lateral and flexion motion along with crepitus to rotation. There were no flare-ups reported. Range of motion study showed forward flexion to 40 degrees, objective evidence of painful motion beginning at 30 degrees; extension to 40 degrees, limited by painful motion to 30 degrees; right lateral flexion to 30 degrees, limited by painful motion to 25 degrees; left lateral flexion to 30 degrees, limited by painful motion to 25 degrees; right lateral rotation 60 degrees, limited by painful motion to 45 degrees; left lateral rotation 60 degrees, limited by painful motion to 55 degrees. After three repetitions, the results were forward flexion to 35 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation 60 degrees. There was functional loss demonstrated by less movement than normal, weakened movement, pain on movement. There was localized tenderness or pain to palpation for the joints/soft tissue of the cervical spine, with guarding or muscle spasm, which did not result in abnormal gait or spinal contour. There was no intervertebral disc syndrome (IVDS) present. An x-ray documented arthritis though not a vertebral fracture. Functional impact on ability to work was that the Veteran stated when working at a desk job he was unable to use his hands for electronic work and headaches began to decrease concentration and he had ot miss work secondary to pain. On examination again April 2017, the diagnosis at outset was degenerative arthritis of the spine. The Veteran reported flare-ups of the neck region described as pain with limited range of motion. There was not functional loss or functional impairment reported. Range of motion findings showed forward flexion to 40 degrees, extension to 40 degrees, right and left lateral flexion to 40 degrees, and right and left lateral rotation 75 degrees. There were no worse findings notated with repetitive use. There was not an examination done or indicated to have been possible during a flare-up of the condition. The Veteran did have present localized tenderness, guarding or muscle spasm of the cervical spine, not resulting in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. There was not present any IVDS. There were not recent x-rays that had been done. The condition did not impact the ability to work. Then on examination in August 2020, the diagnosis was indicated of degenerative arthritis of the spine. The symptoms were described as decreased range of motion, spine stiffness, headaches located behind both eyes. Treatment was Tramadol and ESI (corticosteroid injections). There were no flare-ups reported. There was functional loss described consisting of decrease in range of motion. Initial range of motion measurements were forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation 30 degrees. There was not objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no evidence of pain with weight bearing. With three repetitions there was no additional loss of function or range of motion. There was not significant limitation of functional ability over time due to pain, weakness fatigability, or incoordination. There was not present guarding or muscle spasm of the cervical spine. There were no additional factors contributing to a cervical spine condition. There was no ankylosis present for the cervical spine. IVDS was not present. Assistive devices were not used. There was no evidence of pain or other limitation due to weight-bearing. There was no functional impact upon ability to work. Based on the preceding findings, as previously indicated, the Board finds clearly warranted an adjustment in the compensation scheme, with a higher 20 percent rating effective from September 3, 2013 up until August 6, 2020. For the remaining timeframes the existing ratings continue to apply. This represents a partial grant of the claim on appeal. First, regarding the time period prior to the September 2013 VA examination, it is readily demonstrated that the criteria for a rating in excess of 10 percent were not met. On VA examination in December 2009, the one source of relevant findings, range of motion consisted of forward flexion to 40 degrees. Total range of motion when added together from several planes of motion well exceeded 170 degrees. Nor were these objective measurements diminished when considering pain on use, weakness, fatigability, incoordination, or other recognized forms of functional loss. See DeLuca, supra. See also, 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, there was not present any muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Accordingly, none of the three prongs per the General Rating Formula were met for when the next higher 20 percent rating may be found warranted. See 38 C.F.R. § 4.71a. The Board also points out, that as to the Veteran's argument articulated that one may be able to obtain per Diagnostic Code 5003 a 20 percent rating for involvement of minor joint groups, that in fact this would require involvement of two such minor joint groups specifically, and not one such group as the cervical spine vertebrae is more typically considered to comprise as specified under 38 C.F.R. § 4.45. Following that first time period, from September 3, 2013 to August 6, 2020, the September 2013 examination clearly indicated for range of motion findings, forward flexion when factoring in pain on use, was effectively limited to 30 degrees. Taking that into account, this in conjunction with some finding of muscle spasm and localized tenderness present to the cervical spine, the Board finds the requirements for the next higher 20 percent rating met. That rating is considered to apply continuously following the September 3, 2013, taking a longitudinal view of the evidence and that similar findings were later notated on an August 2020 VA examination. This is notwithstanding an April 2017 VA examination did not replicate the same degree of severity. The evidence is looked at overall and resolving any reasonable doubt in the Veteran's favor as to degree of severity of condition. See 38 C.F.R. § 4.3. A higher 20 percent rating should apply from September 3, 2013 to August 6, 2020. Further, from August 7, 2020, the evidence does not warrant in excess of a 20 percent rating. This is given that forward flexion was never at or near 15 degrees or less. Also, there has not ever been joint ankylosis, which is generally defined as a total absence of mobility, particular where describing disorders of the spine. That is opposed limited areas of the VA rating schedule, where the term ankylosis sometimes more characteristically described fused joints whether perhaps some limited degree of motion were retained overall, i.e., as with the claim following this one. It follows, a rating in excess of 20 percent since August 7, 2020 is not warranted. For these reasons, the Board finds that a partial grant of compensation in according with the findings above, and a higher 20 percent rating awarded from September 3, 2013 to August 7, 2020. VA's benefit-of-the-doubt doctrine applies to the extent indicated. 2. The claim for increased rating for osteoarthritis, right hand with favorable ankylosis of the right thumb. 3. The claim for increased rating for osteoarthritis, left hand with favorable ankylosis of the left thumb and index finger. The current ratings in effect for the condition of osteoarthritis of the right and left hands, consist of a 10 percent rating right side, and 10 percent rating followed by increase to 20 percent effective February 7, 2021 on the left side. The right hand condition is rated based on Diagnostic Code 5224. The left hand condition is rated according to Diagnostic Code 5223. See 38 C.F.R. § 4.71a. Diagnostic Code 5223 applies to favorable ankylosis of two digits of one hand. For a minor upper extremity, as here involving the left side, a 10 percent rating is warranted where involving long and ring fingers; long and little fingers; or ring and little fingers. A 20 percent rating is warranted where involving index and long; index and ring; or index and little findings. Also a 20 percent rating applies for when involving the thumb and any finger. For the latter were a major extremity involved then a 30 percent rating would be warranted (as here would be the right side for the instant case). Diagnostic Code 5224 applies to ankylosis of the thumb. For either a major or minor extremity a 10 percent rating applies to favorable ankylosis, and a 20 percent rating to unfavorable ankylosis. A note to the criteria states to also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. A note to the rating criteria indicates as follow, for the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a. Another note indicates 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 level of disability is equally balanced between one level and the next higher level. Id. Evaluation of ankylosis of the index, long, ring, and little fingers: (i) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto; (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis; (iv) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis. Id. Evaluation of ankylosis of the thumb: (i) If both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation at metacarpophalangeal joint or through proximal phalanx; (ii) If both the carpometacarpal and interphalangeal joints are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as unfavorable ankylosis; (iv) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as favorable ankylosis. Id. An additional note indicates that if there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation. Id. The above rating criteria is part of the section 4.71a, that was revised in part, effective February 7, 2021, however, those cited diagnostic codes and additional relevant provisions were not materially changed. These provisions having been indicated, there are several components in the VA rating schedule that pertain to different instances of limitation of motion affecting the hands, wrist and upper extremities in general, and which would warrant specific consideration based on the factual circumstances raised in a given case. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (the implementation of another Diagnostic Code is permitted if warranted under the circumstances of a particular case provided there is sufficient explanation). The Board will consider the evidence of record accordingly. In the Veteran's December 2009 claim for increased, he requested a higher evaluation for the service-connected osteoarthritis of the hands and wrists (part of a different claim), stating that the nodes continued to expand with substantial finger deviation, pain and loss of grip. On VA Compensation and Pension examination of the joints in February 2010, the condition identified was osteoarthritis, bilateral hands. It was described as progressive since the mid-1970s, with increased pain, stiffness, swelling and nodules. There was no history of hospitalizations, procedures done, trauma to the hands or fingers, or presence of any tumors. He took Diclofenac for pain relief once daily, it decreased the pain, swelling unchanged, no side effects. There was decreased strength and decreased coordination. The other symptoms associated with the hand condition were deformity, pain, numbness, tingling, swelling and weakness. He had trouble with gripping and fine motor function. There were flare-ups of the condition, with increased pain, moderate level, daily, for one hour, factors causing it being twisting, lifting, bending, gripping and typing. Estimated impairment on daily activities was 25 to 75 percent. He was right hand dominant. There was no ankylosis involving the hands. There was measured metacarpophalangeal flexion 30 degrees, proximal interphalangeal joint flexion 30 degrees, thumb abduction and rotation: thumb pad faces the finger pads. Range of motion taken for the (1) metacarpophalangeal, (2) proximal interphalangeal, and (3) distal (terminal) interphalangeal joints: left index finger 74 degrees, 64 degrees, 32 degrees; right index finger 74, 64, 40 degrees; left index finger, with repetition 80, 64, 56; right index finger, with repetition 80, 68, 48; left index finger, with additional repetition 66, 62, 40; right index finger, with additional repetition 54, 88, 42. Additional range of motion findings were as follows, left long finger 86, 64, 56; right long finger 78, 78, 56. Also, left middle finger 70, 72, 48; right middle finger 72, 84, 48; left middle finger with repetition 54, 64, 40; right middle finger with repetition 66, 84, 40. Also, left ring finger 86, 78, 38; right ring finger 82, 86, 40; left right finger, with repetitive motion 66, 62, 40; right ring finger, with repetitive motion 54, 88, 42. Also, left little finger 90, 66, 40; right little finger 82, 78, 44, left little finger, with repetitive motion 78, 68, 24; right little finger, with repetitive motion 66, 80, 24. Further indicated on VA examination, for the right hand before attempting to oppose the thumb to the fingers there was present a 4.5 inch gap between the tip of the thumb and the fingers; 4.5 inch gap between the tips of the fingers and proximal transverse crease of the palm; zero inch gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers. For the left hand there was present before attempting to oppose the thumb to the fingers a 5.25 inch gap between the tip of the thumb and the fingers; 4.0 inch gap between the tips of the fingers and proximal transverse crease of the palm; and zero inch gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers. There was described as follows the strength levels shown for the bilateral hands, normal pulling ability, abnormal pushing (4/5) and twisting ability (3/5). There was normal writing, touching, expression while abnormal twisting and probing. There was flexion deformity of the hands, with difficulty gripping, writing more than 15 minutes, missing keys while typing, putting hands in pockets, pointing at his children and tying shoelaces. The diagnosis indicated was osteoarthritis, bilateral hands; and chronic strain, bilateral hands. There was no joint instability noted on exam. There were no related scars. There were no other issues found. The effect on usual occupation and daily activities was that the Veteran worked as an executive at the Veterans of Foreign Wars (VFW) National Headquarters. This condition caused him to slow down and stop typing or lifting weights due to pain which was a factor that interrupted a daily routine. In his August 2011 statement, the Veteran contended that the limitation of motion measurements taken during the prior examination showed limitation of motion gaps that would have significantly exceeded the measurement required for separate 10 percent evaluations for the individual index and long fingers of both hands under the criteria listed in Diagnostic Code 5229. The Veteran requested separate ratings for this condition under both Diagnostic Codes 5003 and 5229. On VA re-examination September 2013, the diagnoses at outset were osteoarthritis of the right hand and left hand. It was stated, in the mid-1970s the Veteran noticed nodes on distal phalanges as well as lateral deviation of both 1st and 2nd fingers of the bilateral hands and noticed pain in some fingers, this progressed to being fairly debilitating pain in the hands which interfered with normal functioning. The Veteran had tried NSAID pain relievers with minimal success and had seen a neurologist. Flare-ups impacted function of the hands, in that the Veteran had severe hand/finger pain which interfered with grip / playing golf and other normal activities. The pain could be debilitating at times, and there was constant pain with arthritic pain and severe flare-ups once a week. There was limitation of motion in all joints notated other than with regard to the left thumb. As for ability to oppose thumb, there was a gap between the thumb pad and the fingers. There was a one-inch gap opposing all of the fingers to the thumb and on both sides. Painful motion began at the gap of one-inch and this affected all the fingers. There was not present limitation of extension or evidence of painful motion for the index finger or long finger. There was repetitive use testing done for 3 repetitions with no worsening of the condition. There was less movement than normal and a joint deformity affecting both sides, and pain on movement for almost all affected joints. There was pain on palpation on the left side. Muscle strength testing was 2/5 on the right side, 3/5 on the left side. There was no ankylosis of the thumb and/or fingers. There were no scars. There were no assistive devices used. The functional impact was that the Veteran was unable to work on a computer, unable to grip and sit for prolonged periods of time due to debilitating hand/finger pain. There was no additional limitation of motion due to pain during flare-ups or when the joint was used repeatedly over a period of time. In the June 2014 Notice of Disagreement (NOD) with respect to the present issues, the Veteran again requested consideration of application of Diagnostic Code 5229 as a basis for a higher rating. At a January 2016 DRO hearing, the Veteran described having had different levels of limitation of motion affecting the fingers of each hand respectively and further requested separate ratings for the same. On VA examination again in April 2017, it was stated at the outset that the diagnosis was degenerative arthritis of both hands. The arthritis condition was described as being active. There were flare-ups of the right hand condition was described as nodules, some being painful, constant pain in two of the fingers, varied in the rest. The flare-ups in the left hand were nodules again, some painful, but not constant pain like the right hand except in the bottom joint of the thumb. The Veteran reported the overall functional impairment of freezing of the hands in a closed manner, more often the right hand than the left hand, and also limited range of motion. Range of motion taken for the (1) metacarpophalangeal, (2) proximal interphalangeal, and (3) distal (terminal) interphalangeal joints: right hand index finger flexion to 80, 90, 60; long finger 80, 90 60; ring finger 90, 100, 70; little finger 90, 100, 70; thumb 10, 90 [no DIP measurement; also extension to 0 for all measurements]. There was no gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. With repetition motion after 3 repetitions and then it was stated to have been done again over time, the findings were, right index finger 90, 100, 70; long finger 90, 100, 70; ring finger 90, 100, 70; little finger 90, 100, 70; thumb 100, 90. The same readings were indicated accounting for any flare-ups. For the left hand, range of motion findings were as follows, left index finger flexion to 80, 90, 65; long finger flexion to 80, 80, 65; ring finger flexion to 90, 100, 70; little finger flexion to 90, 100, 70; thumb flexion to 100, 90 [no DIP measurement; also extension to 0 for all measurements]. There was no gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. With repetition motion, the findings were, left index finger 90, 100, 70; long finger 90, 100, 70; ring finger, 90, 100, 70; little finger 90, 100, 70; thumb 100, 90. The same readings were indicated accounting for any flare-ups. There was present objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. This was to mild tenderness to palpation for the MCP joints of the left hand. For both hands there was indicated to have been less movement than normal due to "ankylosis, adhesions, etc." though not finding ankylosis at a later point. Muscle strength testing was 5/5. There was no present muscle atrophy. For both hands there was not indicated any joint ankylosis present. There was no indication of the use of any assistive devices. There were no othes signs of remaining limitation of function of the extremities. X-rays documented the presence of degenerative or traumatic arthritis. There was no functional impact notated as to employment status or effect on ability to carry out occupational tasks. On re-examination September 2020, the diagnoses stated at outset was ankylosis of the bilateral thumbs and left index finger; and degenerative arthritis, both hands. According to the examiner the Veteran's condition had progressed and worsened throughout the years. Current symptoms were stated as osteoarthritis nodules/herbedens nodes had increased in numbers and pain had increased. Treatment was with Tramadol and corticosteroid injections in 2019. The Veteran reported having had flare-ups of the hand, finger or thumb joints. When the Veteran hit the hand pain increased. When the thumb would freeze he experienced pain. As to functional impairment it was difficult for the Veteran to write, type, or hold things in his hand. It was stated he could not play golf or wash a car. Range of motion taken for the (1) metacarpophalangeal, (2) proximal interphalangeal, and (3) distal (terminal) interphalangeal joints: right index finger 70, 70, 60; right long finger 70, 70, 60; right ring finger 80, 90, 60; right little finger 80, 90, 60; right thumb 50, 70. There was no gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger extension. Limitation of motion had led to loss of grip and function. He was unable to write, grip or hold onto things. There was no evidence of pain with use of the hand, or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. For the left hand range of motion measurements were: left index finger 70, 70, 60; left long finger 70, 70, 60; left ring finger 70, 70, 60; left little finger 80, 80, 60; left thumb 50, 70. There was no gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger extension. Due to functional loss it was difficult for the Veteran to hold things in his hand. The Veteran was able to complete repetitive use testing with at least three repetitions and there was not additional loss of function or range of motion. With repeated use over time the range of motion findings were as follows: right index finger 70, 70, 60; right long finger 80, 90, 60; right ring finger 80, 90, 60; right little finger 80, 90, 60; right thumb 60, 80. There was no gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger extension. For the left hand range of motion measurements were: left index finger 70, 90, 60; left long finger 80, 90, 60; left ring finger 80, 90, 60; left little finger 80, 90, 60; left thumb 50, 80. There was no gap between the pad of the thumb and the fingers. There was not a gap between the finger and proximal transverse crease of the hand on maximal finger extension. The examiner stated the condition appeared to further limit functional ability with flare-ups due to pain, fatigue, weakness, lack of endurance, incoordination. The amount was not quantified because there condition was not then in a flare-up mode, however the examiner stated when this would occur, it would be daily, for 2 hours, moderate severity, precipitating causes unknown, alleviating factors pain reliever, heating glove, hot wax, Cortisone injections. The impact on function was it was difficult for the Veteran to hold things in his hand. Additional findings were of less movement than normal due to ankylosis, adhesions, etc. Also weakened movement, swelling, and joint deformity. According to the VA examiner, the Veteran had deformed right and left thumbs with MCP/PIP joints fused. There was swelling and weakened movement of the joints. Muscle strength was 4/5 in both hands. There was muscle atrophy affecting the right and left hand hypothenar areas, circumference of 6.0 cm more normal side 5.5 atrophied side. For evaluation of any ankylosis, it was present at the right thumb MCP joint, right index finger PIP joint, and at the left hand thumb MCP joint and index finger PIP joint. This resulted in loss of grip and dropping objects. An assistive device was utilized in the form of a thumb spica splint. The Veteran used the thumb spica splint for DJD bilateral hands and ankylosis of the bilateral thumbs. The functional impact was an affect upon typing and writing, weakness in grip, picking up boxes, dropping things. When taking into account the effect if any due to weight-bearing or non weight-bearing circumstances, on further range of motion testing, the left index finger at the MCP joint demonstrated flexion to 50 degrees. The VA examiner further stated as an assessment that the Veteran's service-connected osteoarthritis, right and left hands, had progressed to include ankylosing of the right and left thumbs and left index finger. A September 2020 addendum opinion indicated, in response to an RO inquiry, was that for purpose of clarification the right index finger was not ankylosed. The right thumb at MCP was 100 degrees and IP 90 degrees. The left thumb at MCP was 100 degrees and IP 90 degrees. The right index finger was not ankylosed. The left index finger was ankylosed. On review of the record and application of the VA rating criteria, the Board finds that an increased evaluation is not warranted for either the service-connected right or left hand osteoarthritis. While taking into full account there obviously is a long-term condition with the signs and symptomatology of the same, along with documented functional loss, applying the rating as stated at section 4.71a, the current compensation scheme appears to accurately represent the level of severity of condition. Based on the record the limitation of motion findings from VA examinations over several years, that clearly is present, and whether it corresponds to a higher rating based on the rating schedule is the next consideration. The rating schedule for the most part provides for 10 percent for most forms of compensable limited mobility. The exception here would be that per Diagnostic Code 5228, limitation of motion of the thumb to a gap of more than two inches between the thumb pad and the fingers would warrant 20 percent, however, that measurement is not shown at any point. Elsewhere where applicable, the thumb condition in and of itself was rated in conjunction with this claim on the basis of partial and favorable joint ankylosis. Also, there was not limited mobility to substantiate two separate 10 percent ratings for two limited motion digits considered simultaneously. The VA examinations did not show any gap between thumb and fingers, and the palm, the one exception being the 2013 VA examination but compared to three other examination studies that showed otherwise. Also whereas the Veteran had requested to have considered separate ratings under Diagnostic Code 5229 for different parts of the hands being affected simultaneously, the Board notates that the VA rating schedule considers this possibility already of two or more fingers being affected by ankylosis, and as to limitation of motion it does not appear to otherwise apply on the evidence. Diagnostic Code 5229 applies to index or long finger, limitation of motion, with a maximum rating of 10 percent. See 38 C.F.R. § 4.71a. There is the note to the VA rating criteria for evaluating limitation of motion of two or more digits separately, combining the evaluations. In this instance, the 2017 and 2020 VA examinations do not appear to have shown any qualifying requirements met anyway. Both reports specified that there was no gap present between the fingertips and the palm. Accordingly, a separate rating would not be warranted on this basis when accounting for the most recent findings of record. As for any joint ankylosis, while demonstrated to have been present, there is not an evidentiary basis for rating in excess of the current compensation level. The joint ankylosis present was favorable, not unfavorable, applying VA rating criteria definitions, because affecting one finger joint region not two and there was not a gap between fingers and thumb. For the right hand, the highest available rating for favorable ankylosis is 10 percent for any individual digit or the thumb. Here, only the right thumb was ankylosed and in a favorable joint ankylosis. A 10 percent rating would apply per the rating criteria. See Diagnostic Code 5224. Initially VA examinations did not show any form of ankylosis, it was shown by the last examination. The September 2020 examiner's addendum further stated for giving clarification the right index finger was not ankylosed. It follows that the provisions for rating based on two digits with ankylosis would not apply here. See Diagnostic Codes 5220-5223. As for the left hand, since involving two digits stated to have had joint ankylosis, then Diagnostic Codes 5220 through 5223 would apply. However, as shown by the provisions of Diagnostic Code 5223, the maximum available rating for two favorably ankylosed digits for a minor extremity, as with the left side in this case, is 20 percent which is the already awarded rating. Moreover, the increase to 20 percent is certainly warranted effective August 7, 2020 based on showing of ankylosis of thumb and any finger. The condition was not at that level of severity at any time prior, when examinations did not find ankylosis to any degree. (Continued on the next page) Based on the provisions of the rating criteria, the current disability ratings would remain in effect. There is some level of specificity to the rating requirements, and in some instances the symptomatology the Veteran has is present and did not meet the specified criteria, absent any current medical evidence to the contrary. For these reasons, the claims are being denied, since the preponderance of the evidence does not warrant a higher rating. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lyons, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED