Citation Nr: 21030156
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 14-28 659A
DATE: May 18, 2021

ORDER

Prior to February 13, 2020, entitlement to a compensable rating for a fracture of the fourth and fifth metacarpal bones of the right hand is denied.

As of February 13, 2020, entitlement to a disability rating of 10 percent for a fracture of the fourth and fifth metacarpal bones of the right hand is granted subject to the laws governing monetary benefits.

FINDINGS OF FACT

1. For the period prior to February 13, 2020, the Veteran's fracture of the fourth and fifth metacarpal bones of the right hand were not productive of functional loss that warrants an initial compensable rating.

2. As of February 13, 2020, the Veteran's right fifth finger was ankylosed in full flexion, with both metacarpophalangeal and proximal interphalangeal joints being ankylosed with an angulated bone.

CONCLUSIONS OF LAW

1. For the period prior to February 13, 2020, the criteria for a compensable rating for a fracture of the fourth and fifth metacarpal bones of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5216-5230.

2. As of February 13, 2020, the criteria for a disability rating of 10 percent for a fracture of metacarpal bones of the right hand have been met. 38 U.S.C. §§ 4.40, 4.45, 4.59, 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, DCs 5156, 5216-5230.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1982 to August 1992.

This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) February 2010 rating decision of the Agency of Original Jurisdiction (AOJ).

In April 2018 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the April 2018 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives.

1. Increased ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999).

2. For the period prior to February 13, 2020, entitlement to a compensable rating for a fracture of metacarpal bones of the right hand

3. As of February 13, 2020, entitlement to a disability rating of 10 percent for a fracture of metacarpal bones of the right hand

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal.

When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. 

By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain and on flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

The Veteran's right-hand disability has been assigned a noncompensable, or 0 percent, disability rating under DC 5299-5223: favorable ankylosis of two digits of one hand. Under DC 5223, a 10 percent disability rating is warranted if there I favorable ankylosis of both the fourth (ring) and fifth (pinky) fingers of the same hand. However, the Veteran does not have ankylosis in multiple digits of his right hand. Rather, it is only the Veteran's right-fifth finger that has objective medical evidence of ankylosis, and that is only as of February 13, 2020. See February 2020 VA Hand and Finger Conditions Disability Benefits Questionnaire (DBQ). 

The Veteran's medical history shows a gradual worsening, or progression, of his right-finger disabilities. In January 2009, it was noted that the Veteran's right fourth and fifth fingers experienced numbness. In October 2009 the Veteran was seen for a VA examination to determine the severity of his right finger disabilities. The Veteran reported pain that is relieved by medication. Despite the pain, the Veteran stated that "he can function" as long as he is taking his medication. Furthermore, "loss of mobility" in the Veteran's fourth and fifth fingers was noted, though there was no noted limitation of the range-of-motion (ROM) of the affected fingers. An x-ray showed "old fracture deformity of the fifth metacarpal," but there is no ankylosis.

In June 2010 the Veteran was seen for another VA examination, albeit for another disability. While examining the Veteran, the examiner noted that the Veteran's right fingers were "not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination," and that there were no limitations to the range-of-motion of any of his fingers on his right hand. Furthermore, there was no findings of ankylosis.

In November 2013 the Veteran was seen for another hand and finger DBQ. The examiner found no limitation of motion or evidence of painful motion regarding any fingers or thumbs, nor was there ankylosis of any of the fingers. Furthermore, there was no functional loss or functional impairment of any of the fingers or thumbs, both before and after repetitive-use testing.

Medical treatment records from 2016 show a progression of the Veterans symptoms, with a September 2016 finding that there was "gradual clawing" of the fourth and fifth fingers, which was "suggestive of carpal tunnel syndrome." However, an October 2016 treatment note found "no evidence of cubital or carpal tunnel syndromes," despite there being "flexible clawing" of the Veteran's fourth and fifth fingers of his right hand.

A January 2019 VA examination found that the Veteran's right-finger disability caused "no functional impairment." It was noted that the Veteran experienced flareups that were productive of "aching pain in the right hand with activity." There was limited range-of-motion, however only in the Veteran's right fourth and fifth fingers. The examiner noted that, with repetitive use, a "loss of ROM is variable depending on how strenuously the joint was used." The Veteran's pain and loss of ROM caused functional limitations, affecting the Veteran's ability to write, type, pick up or move objects, and daily activities such as getting dressed. The examiner noted that these limitations "can negatively impact occupational and employment activities." The examiner's review of the Veteran's right-finger disabilities included a review of usage in both weight-bearing and non-weight-bearing, as well as a comparison to the Veteran's undamaged opposite joint. In February 2019 another VA examiner noted that some of the Veteran's right-finger issues were due to moderate incomplete paralysis of his right ulnar nerve. However, these neuropathic issues were due to the Veteran's diabetes mellitus (DM2), a condition which has not been found to be service-connected.

On February 13, 2020, the Veteran was seen for another VA examination to determine the severity of his right-finger conditions. The examiner found that, for the first time, there was ankylosis of the Veteran's fifth finger on his right hand. This ankylosis affected both his metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints, which resulted in the finger being in full flexion. While there was no rotation of either bone, there was angulation of both of them. None of the Veteran's other fingers were found to be ankylosed. Both hands showed a limitation of motion in the Veteran's fingers. However, there were no gaps between the pad of the thumb or fingers on either hand. The examiner noted that the ankylosis caused no limitation of motion of other digits, nor did it interfere with the overall function of the hand. The Veteran continued to experience flareups, which caused additional functional loss due to pain. This pain and functional loss would increase with repeated use. As the Veteran's left hand was also showing signs of limitation of motion at this point, there is no undamaged opposite joint to be compared to. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016).

Based on the above, the Board finds that, as of February 13, 2020, a 10 percent disability rating is warranted for the Veteran's right-finger disabilities. Based on 38 C.F.R. § 4.71A, the Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand (3)(i), as both the MCP and PIP joints of the fifth finger on his right hand are ankylosed with full flexion, and there is angulation of the bone, the condition is to be rated as an amputation without metacarpal resection, at proximal interphalangeal joint of proximal hereto (DC 5156). Under DC 5156, such a rating warrants a 10 percent disability rating. A higher 20 percent disability rating is not warranted as there is no evidence of an amputation with metacarpal resection being necessary.

Prior to February 13, 2020, there is no evidence of ankylosis in any of the Veteran's right fingers, and there has been no medical evidence to show that there is any gap between his fingers and thumb pad, DCs 5216 through 5229 (excluding DC 5227) do not apply. While DC 5230 (Ring or little finger, limitation of motion) does apply, the maximum rating available is a 0 percent rating for "any limitation of motion." The Board notes that there is objective evidence of pain, and functional loss due to pain, prior to February 13, 2020. However, the provisions of 38 C.F.R. § 4.59 do not apply, as the Veteran is already in receipt of the maximum possible rating. See Sowers v. McDonald, 27 Vet. App. 472 (2016) (finding that § 4.59 is limited by the DC applicable to a claimant's disability, and where that DC does not provide a compensable rating, § 4.59 does not apply). For a painful joint, a veteran can be awarded at least the minimum compensable rating. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (applying § 4.59 in non-arthritis contexts). However, a higher rating for pain is not available under DC 5230 because there is no minimal compensable rating. Sowers, 27 Vet. App. at 480. Thus, the Veteran is not entitled to a compensable rating under DC 5230 and the provisions of 4.59.

Under Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand (3)(ii) the Veteran's right fifth finger disability can be rated as unfavorable ankylosis of the digit, which in this case would be DC 5227. Under DC 5227 the only possible rating is a noncompensable rating. 38 C.F.R. § 4.71A.

Based on the  foregoing reasons, the Board finds that as of February 13, 2020, a 10 percent disability rating based on Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand (3)(i), with ankylosis of the MCP and PIP joints of the Veteran's right fifth finger, with full flexion, rated as amputation of the little finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto, is warranted.

 

 

SONJA S. AN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Neville, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.