Citation Nr: 21027679 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-34 748 DATE: May 6, 2021 ORDER Entitlement to an initial compensable disability rating for migraine disorder prior to August 10, 2016 is denied. Entitlement to an initial compensable disability rating for service-connected residuals of a fracture of the right fourth metacarpal is denied. FINDINGS OF FACT 1. Prior to August 10, 2016, the Veteran's migraine disorder did not manifest in characteristic prostrating attacks averaging one in two months over the previous several months. 2. The Veteran's residuals of a fracture of the right fourth metacarpal manifested as pain, tenderness, and loss of grip. CONCLUSIONS OF LAW 1. Prior to August 10, 2016, the criteria for a compensable initial disability rating for migraine disorder were not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for a compensable initial disability rating for service-connected residuals of a fracture of the right fourth metacarpal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2005 to October 2012, to include service in Southwest Asia. He died in April 2018, and the appellant has been substituted as the legal guardian of his surviving child. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for migraine disorder and residuals of a fracture of the right fourth metacarpal; noncompensable ratings were assigned to each from October 11, 2012. The Veteran disagreed with the assigned initial ratings and this appeal follows. In a January 2020 Board decision, the claims on appeal were remanded for readjudication. In an October 2020 rating decision, the RO granted a 50 percent rating for migraine disorder effective from August 10, 2016. As indicated in the October 2020 rating decision, a 50 percent rating is the highest schedular rating for this disability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that the appellant's attorney has not argued that a rating in excess of the maximum schedular rating is warranted for the service-connected migraine disorder; rather, he argues that a higher rating is warranted prior to August 16, 2016. See the written argument of the appellant's attorney dated March 2021. The matter of entitlement to a compensable rating for service-connected migraine disorder prior to August 10, 2016 was readjudicated in the October 2020 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Initial Disability Ratings The appellant asserts that the assigned initial disability ratings as articulated above did not reflect the severity of these disabilities. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine disorder prior to August 10, 2016 The RO rated the Veteran's migraine disorder under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the previous several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See id.; see also Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (finding rating criteria do not define "severe economic inadaptability," but nothing in Diagnostic Code 8100 requires that Veteran be completely unable to work to qualify for 50 percent rating; "productive of economic inadaptability" can be read as either "producing" or "capable of producing.") Although Diagnostic Code 8100 does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, 1531 (32nd ed., 2012). Turning to the evidence of record, treatment records and progress notes from the Portland, Oregon Veterans Affairs Medical Center (VAMC) disclose that clinicians indicated that an evaluation of the Veteran's neurological system disclosed neither endorsement nor evidence of headaches in 2013. In April 2014, the Veteran underwent a VA headaches (migraine) examination. A VA clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The clinician indicated a current diagnosis of tension headache. The Veteran reported that his headaches occurred unilaterally or bilaterally in his parietal scalp or retro-orbital region approximately every three days. The Veteran endorsed pain akin to a squeezing sensation; however, the Veteran did not endorse symptoms of light or auditory sensitivities, visual changes, nausea, and/or vomiting. Treatment did not include taking medications. The clinician indicated that the Veteran indicated symptoms of pulsating or throbbing head pain; pain localized to one side of the head; and pain on both sides of the head. The clinician noted that the Veteran did not experience non-headache symptoms. Typical duration of a headache was less-than-one day with pain at both sides of the head. The clinician indicated that the Veteran did not have any prostrating attacks or migraine or non-migraine headache pain. Lastly, the clinician reported that that this disability did not impact the Veteran's ability to work. The Veteran and, then the appellant, asserted that the Veteran's migraine disorder warranted a compensable rating prior to August 10, 2016. To this end, the Veteran was competent to report discernable symptoms such as squeezing headache sensations. The Board has considered this lay evidence carefully. 38 C.F.R. § 3.159(a)(2). Nevertheless, the evidence of record fails to show that this Veteran possessed the highly specialized knowledge in medicine to render a complex opinion as to the clinical severity of a headache/migraine disorder. 38 C.F.R. § 3.159(a)(1). Consequently, this lay evidence does not constitute competent medical evidence. The Board has discussed the pertinent evidence above. The April 2014 VA clinician did not indicate that that Veteran experienced any characteristic prostrating attacks of headache/migraine. Likewise, clinical notations in VAMC treatment records and progress notes fail to disclose either endorsement or evidence of any characteristic prostrating attacks. The Board assigns substantial probative weight to the findings of these competent expert clinicians. In sum, the Board finds that the preponderance of the evidence is against the claim for a compensable initial disability rating for the Veteran's migraine disorder prior to August 19, 2016. Residuals of a fracture of the right fourth metacarpal 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). 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. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 206-8. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO has evaluated the Veteran's residuals of a fracture of the right fourth metacarpal under Diagnostic Code 5230. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under Diagnostic Code 5230, a noncompensable disability rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a. Turning to the evidence, 2013 treatment records and progress notes from the Portland VAMC disclose that the Veteran complained of right fourth metacarpal throbbing and intermittent surgery. Specifically, the Veteran conveyed that writing elicited pain. A clinician indicated that the Veteran had full range of motion and the joint was not tender. X-ray imaging of the right hand revealed stable hardware with 4 screws and probably a 1.5 mm plate, with excellent alignment and healing of the fracture. A clinician opined that the most common long-term complaints after hand surgery was cold intolerance and vague pain. In April 2014, the Veteran underwent a VA hand and fingers examination. A clinician followed VA exam protocols. The Veteran reported that he experienced severe throbbing pain when he wrote, typed, or grasped. The clinician indicated that the Veteran was right-hand dominant. The clinician wrote that the Veteran's mid-fourth metacarpal had healed completely, and the fixation was intact. Opining as to the Veteran's left index finger and right-hand conditions (to include index and metacarpal fingers), the clinician indicated that there was impact on the Veteran's ability to perform any occupational task. Specifically, the clinician noted difficulty in performing job-related tasks that involved repetitive gripping/grasping, typing, and writing activities. In August 2016, the Veteran underwent another VA hand and fingers examination. A clinician followed VA exam protocols. The Veteran reported that any use of the joint for more-than-10 minutes caused pain and stiffness. The Veteran reported flare-ups of increased pain (associated with typing, writing, and lifting). The Veteran also reported functional impact of an inability to do repeated gripping activities. The Veteran commanded flexion to 80 degrees and extension to zero degrees. The clinician reported that there was no evidence of a gap between the pad of the thumb and the fingers. The clinician also indicated that the joint was tender. Pain upon flexion caused functional loss. The Veteran was able to perform repetitive use testing (of at least three repetitions), without additional loss in range of motion. Notably, examination did not take place immediately after repeated use in time; as such, the clinician opined that pain limited functional ability with use over timewith extension to zero degrees and flexion to 70 degrees. There was no evidence of a gap between the finger and proximal transverse crease of the hand upon maximal finger flexion. As to flare-ups, this clinician fully replicated findings as to repetitive use over time. Additionally, the clinician reported less movement than normal. The Veteran had full strength in right hand grip and no muscle atrophy. There was no evidence of ankylosis whatsoever. X-ray imaging did not disclose the presence of arthritis; but imaging did disclose fixation screws and plate, a healed fracture of the right fourth metacarpal, and soft tissue swelling. The clinician indicated that functional impact on any occupational task consisted of an inability to perform gripping or fine manipulative activities for long periods of time. The Veteran and, then the appellant, asserted that the Veteran's residuals of a fracture of the right fourth metacarpal warranted a compensable rating. The Veteran was competent to report discernable symptoms such as finger pain. The Board has considered this lay evidence carefully. 38 C.F.R. § 3.159(a)(2). Nevertheless, the evidence of record fails to show that this Veteran possesses the highly specialized knowledge in medicine to render a complex opinion as to the clinical severity of a hand/finger disorder. 38 C.F.R. § 3.159(a)(1). Consequently, this lay evidence does not constitute competent medical evidence. As noted above, any limitation of motion is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Although 38 C.F.R. § 4.59 provides that painful joints are entitled to at least the minimum compensable rating for the joint involved, this Diagnostic Code does not provide for a minimum compensable rating. The Board acknowledges that the Veteran endorses pain, tenderness, and loss of grip; however, under Diagnostic Code 5230, any level of limitation of motion of the right fourth metacarpal results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the fourth and fifth fingers). Consequently, even with consideration of 38 C.F.R. § 4.59, an initial compensable disability rating for residuals of a fracture of the fourth metacarpal is not warranted. The evidence of record fails to show x-ray evidence of arthritis; as such, Diagnostic Code 5003 (degenerative arthritis) does not bear upon this claim. Likewise, the evidence of record does not demonstrate either ankylosis or amputation of the right fourth metacarpal, which renders Diagnostic Codes 5156 and 5227 inapplicable as well. See 38 C.F.R. § 4.71a. The Board has discussed the pertinent evidence above. The Board assigns substantial probative weight in the April 2014 and August 2016 clinicians' opinions. These experts performed holistic evaluations of the Veteran's service-connected residuals of a fracture of the right fourth metacarpal, which considered lay and objective findings. The Board assigns substantial probative weight in the findings of these expert clinicians. As noted above, objective examination findings were not indicative of a compensable disability rating for residuals of a fracture of the right fourth metacarpal under any available Diagnostic Code. In sum, the Board finds that the preponderance of the evidence is against the claim for a compensable initial rating for the Veteran's service-connected residuals of a fracture of the right fourth metacarpal. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Komins 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.