Citation Nr: 21031351 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-20 014 DATE: May 21, 2021 ORDER Entitlement to a compensable rating for residuals of right little finger fracture is denied. Entitlement to special monthly compensation (SMC) for aid and attendance is denied. REMANDED Entitlement to total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's residuals of right little finger fracture, prior to October 27, 2016, are manifested by painful and limited motion most analogous to mild incomplete paralysis of the ulnar nerve. 2. The Veteran's residuals of right little finger fracture, as of October 27, 2016, are manifested by painful and limited motion, paresthesias, numbness, and diminished sensation in the right little finger and dorsal ulnar most analogous to moderate incomplete paralysis of the ulnar nerve. 3. The residuals of right little finger fracture did not manifest in loss of use where no effective function remains other than that which would be equally served by an amputation stump at the site of election below the elbows with use of a suitable prosthetic appliance. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent for residuals of right little finger fracture prior to October 27, 2016 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 5299-8516. 2. The criteria for a rating of 30 percent for residuals of right little finger fracture as of October 27, 2016 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 5299-8516. 3. The criteria for entitlement to SMC due to loss of use of the right hand are not met. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a)(2)(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1982 to August 1985. In January 2018, the Veteran testified at a Board hearing. The transcript is of record. In July 2018 the Board issued a decision denying the claim of entitlement to a compensable rating for residuals of fracture to the right little finger. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated August 2019, the Court granted a joint motion remand (JMR) and remanded the case to the Board for readjudication. Pursuant to the JMR directives, the Board remanded this case in January 2020 for further development and again in August 2020. Increased Rating 1. Entitlement to a compensable rating for residuals of right little finger fracture (finger condition) The Veteran contends he is entitled to a compensable rating for his finger condition as it affects his whole hand. 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. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Pursuant to 38 C.F.R. § 4.59, it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The Veteran is currently assigned a noncompensable rating under DCs 5299-5230 for his finger condition. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5299 is used to identify musculoskeletal disabilities that are not specifically listed in the schedule but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. In this case, there are no schedular compensable ratings available for the joints of the little finger. Under DC 5230, a noncompensable disability rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5230. The rating schedule states that, as applicable to the ring finger, the metacarpophalangeal joint (MCP) has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of zero to 100 degrees of flexion and the DIP has a range of motion of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a (2017). DC 5227 (Ring or little finger, ankylosis of) assigns a noncompensable disability rating for unfavorable or favorable ankylosis of the ring or little finger for both the major and minor finger; no higher disability ratings are available. A note to this DC instructs 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. Id. Diagnostic Code 5156 is for amputation of the little finger. Without metacarpal resection, at the proximal interphalangeal joint or proximal thereto is assigned a 10 percent rating for the major or minor hand. With metacarpal resection (more than one-half the bone lost) is assigned the maximum 20 percent rating for the major or minor hand. The Board notes that there is no evidence that the Veteran underwent resection of the little finger. In January 2014 the Veteran underwent a VA examination and reported daily moderate to severe mechanical hand pain, finger deformity and lack of active range of motion and denied flare-ups. The examiner noted limitation of motion of the little finger with no gap between the thumb pad and fingers but there was a gap of one inch or more with painful motion between the little finger and proximal transverse crease. There was no additional loss of motion with repetitive use, but there was less movement than normal, pain on movement, swelling and deformity. The Veteran had pain and/or tenderness on palpation but normal grip strength and no ankylosis. The Veteran did not report a need for any assistive devices. The examiner concluded that the Veteran's finger condition does not result in a functional impairment that would be equally well served by an amputation with prosthesis. Functionally, the examiner noted increased hand pain with prolonged keyboard use. The examiner reported the inability to comment whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time without resorting to mere speculation. The Veteran attended a VA examination in January 2020 and reported constant pain that progresses with the day and use of the right hand. Functionally, he described wearing a brace constantly which causes decreased dexterity and the inability to type or write or use tools such as scissors and knives with the right hand. The Veteran described flare-ups that occur two to three times a week that are brought on by increased use of the hand, causing pain, swelling and numbness. Range of motion testing revealed abnormal motion for only the little finger with MCP to 70 degrees, PIP to 80 degrees and DIP to 70 degrees for max flexion. The Veteran did not have a gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted that neither the abnormal range of motion nor pain noted on examination contributed to functional loss. Repetitive use testing did not result in additional loss of motion, but pain limited functional ability with repeated use over time by further restricting the DIP to 50 degrees; however, for flare-ups the examiner found no additional loss of motion just increased pain. The Veteran had moderate pain and swelling of his little finger, reduced hand grip of four out of five, and no muscle atrophy or ankylosis. The examiner concluded that the Veteran's finger condition does not result in a functional impairment that would be equally well served by an amputation with prosthesis. Prior imaging results revealed degenerative arthritis, which the examiner found unrelated to the service-connected diagnosis as it is in a different location on the finger with signs and symptoms that can be differentiated. Functionally, the Veteran is unable to perform fine motor movements which impacts the physical nature of his work. In June 2020, Dr. S.B., a medical consultant, opined that the Veteran is eligible for SMC due to loss of use in the dominant hand below the elbow (which is discussed in greater detail in the SMC section) along with pain with motion and the consistent use of a prosthetic to the right hand, which consistently interferes with activities of daily living. She noted that he continues to have a painful joint, wears a brace daily to assist with grabbing things and requires assistance with getting dressed, grooming and performing complex tasks of activities of daily living that requires both hands. In October 2020 the Veteran attended another VA examination and reported constant throbbing finger pain that is worsening. He described wearing a brace to help with pain and pressure and having difficulty with typing, writing, gripping and carrying. The Veteran reported flare-ups described as the inability to move his right hand for hours due to severe pain with a frequency of all the time and duration of all day. Range of motion testing revealed abnormal motion for the little finger only with max flexion limited to 40 degrees for MCP, 90 degrees for PIP and 70 degrees for DIP. The Veteran did not have a gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. There was pain with finger flexion and with use of the hand but no objective evidence of tenderness of pain on palpation. Repetitive use testing did not result in additional loss of motion. The examiner found pain and weakness significantly limits functional ability with repeated use over time and flare-ups causing an additional limitation of max flexion of the little finger to 35 degrees for MCP and 65 degrees for DIP. The Veteran had normal hand grip strength, no muscle atrophy, and no ankylosis. The examiner concluded that the Veteran's finger condition does not result in a functional impairment that would be equally well served by an amputation with prosthesis. Functionally, the examiner noted up to one week of work time lost in the last 12 months with difficulty gripping, carrying, typing and writing. The Veteran attended another VA examination in December 2020 and reported throbbing pain and stiffness in the joints. He described flare-ups the occur weekly and last up to 20 minutes, which are mild and precipitated by writing, typing and holding items and relieved with rest with functional loss of difficulty with range of motion. Range of motion testing revealed abnormal motion for the little finger only with max flexion to 50 degrees for MCP, 50 degrees for PIP and 50 degrees for DIP with pain on motion. The Veteran did not have a gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. There was no objective evidence of tenderness or pain on palpation. Repetitive use testing resulted in additional loss of motion of 45 degrees max flexion for MCP, PIP and DIP due to pain and lack of endurance. The Veteran had further reduced motion due to pain and lack of endurance with repeated use over time resulting in max flexion of 40 degrees for MCP, PIP and DIP and max flexion of 35 degrees for MCP, PIP and DIP during flare-ups. Hand grip strength was normal with no muscle atrophy and no ankylosis. The examiner concluded that the Veteran's finger condition does not result in a functional impairment that would be equally well served by an amputation with prosthesis. Functionally, the examiner found difficulty with prolonged writing, typing and gripping. Review of the medical records reveal complaints of right-hand pain and discomfort. In January 2017, the Veteran reported trouble with gripping due to paresthesias and numbness for the past three months. Examination revealed normal strength of the upper extremities but pain with little finger abduction, significant tenderness to palpation and subjectively diminished sensation to the right little finger and dorsal ulnar hand. He also disclosed pain on the ulnar side of the hand in June 2017 with the main complication being the ability to use utensils when cooking, examination revealed reduced grip strength. In July 2018 the Veteran went to a hand clinic for numbness and pain in his finger, which worsens with repetitive activities. The examiner reported that the symptoms are likely due to his shortened fifth metacarpal, which creates an imbalance. The Veteran expressed some relief from the splint and denied surgical intervention as the likely benefits were not worth the risks. The Veteran attended an occupational therapy consultation in March 2019 and had swelling of the hand but good active range of motion without limitation. The evidence includes Social Security Administration records. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this case, the Veteran filed for SSA disability in October 2012 and received disability benefits for lumbar degenerative disc disease, left shoulder pathology, obesity, mood disorder and anxiety disorder. As the impairments considered for SSA do not include the Veteran's service-connected finger condition, the Board finds the records have little probative value. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). At the hearing, the Veteran testified that his little finger affects his whole hand and causes numbness and pain. He explained that he has to wear a brace, which includes the little finger, second finger and middle finger and his finger is very tender to touch. His finger condition affects use of the hand, specifically his grip and ability to grab or pick things up. In December 2019 the Veteran provided a statement describing difficulty with his finger and disclosed that the brace causes more issues and stiffness. He explained that despite several types of medications and therapies he still has pain. The Veteran is competent to provide testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As previously noted, the rating schedule does not provide a compensable rating for an impairment associated with limited motion or function of the little finger. Therefore, even with reduced range of motion during repeated use and flare-ups there is no basis for a compensable rating based on limitation of motion. The Board considered whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of other digits or interference with overall function of the hand. While Dr. S.B. opined that the Veteran has loss of use in the dominant hand below the elbow, the VA examiners consistently reported that the Veteran would not be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. Furthermore, throughout the appeal period, the Veteran retained full range of motion of all his other fingers with the only limitations due to the configuration of his hand brace. Additionally, the medical evidence does not reveal any muscle atrophy or ankylosis and in March 2019 the Veteran had active range of motion without limitation and independence in activities of daily living in February 2020. As such, the Veteran's condition does not result in complete loss of use, which is further discussed below. Therefore, the Board finds the evidence does not support additional evaluations for limitation of other digits or as amputation. The Board also considered other appropriate diagnostic codes. Under DC 8516, ratings are available for impairment including "loss of extension of ring and little fingers cannot spread fingers (or reverse)" associated with paralysis of the ulnar nerve. DC 8516 provides compensable disability ratings and considers the involvement of multiple fingers. Although a neurological impairment has not formally been diagnosed, the Board finds that it is appropriate to rate the Veteran's symptoms by analogy under DC 8516, for paralysis of the ulnar nerve. Under DC 8516, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and severe incomplete paralysis is rated as 40 percent for the major extremity. Complete paralysis contemplates the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers 9or the reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. Prior to October 27, 2016, the Veteran's symptoms manifested as painful, limited motion of the little finger with swelling resulting in increased right-hand pain with prolonged keyboard use. The medical treatment records reveal an increase in symptomology as the Veteran reported experiencing trouble with gripping due to paresthesias and numbness for three months at his January 27, 2017 physical medicine consultation. As such, since October 27, 2016, he has displayed symptoms of paresthesias, numbness, subjectively diminished sensation in the right little finger and dorsal ulnar hand and regular use of a brace with functional limitations consisting of difficulty with prolonged typing and writing, gripping, and fine motor movements. Therefore, the Board finds that the level of impairment is most analogous to mild incomplete paralysis for the period prior to October 27, 2016 for painful limited motion. For the period as of October 27, 2019 the Veteran's overall frequency and severity of symptoms is most analogous to moderate incomplete paralysis for paresthesias and numbness resulting in functional impairment affecting the fine motor skills of the right hand. The Board notes that a rating in excess of 30 percent is not warranted for anytime during the appeal period. While the Veteran has restricted movement of the second and middle finger when wearing his brace, he does retain full range of motion of all fingers except the little finger. Furthermore, the evidence reveals no muscle atrophy, and periods of normal grip strength and the ability to be independent in activities of daily living and no muscle atrophy. Therefore, the claim for a rating of 10 percent for residuals of right little finger fracture prior to October 27, 2016 and 30 percent thereafter is granted. 2. Entitlement to special monthly compensation The Board notes that the issue of special monthly compensation for loss of hand is raised by the record. Special monthly compensation is warranted where there is loss of use of a hand such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350 (a)(2); see also 38 C.F.R. § 4.63. The Board incorporates by reference the medical history, analysis, findings and conclusions discussed in first section of this claim. Dr. S.B., opined that the Veteran is eligible for SMC due to loss of use in the dominant hand below the elbow. However, neither the VA examiners of record nor the medical treatment records conclude that the Veteran would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. As previously discussed, the evidence does not indicate complete loss of hand as he has full range of motion of all other digits, and no muscle atrophy. He displayed no limitations of motion in March 2019 and was described as independent in his activities of daily living and working full time in February 2020. As such, the Board has considered the opinion of Dr. S.B. but does not find it persuasive as it is inconsistent with the evidence of record. Therefore, entitlement to SMC for loss of hand is not warranted and the claim is denied. REASONS FOR REMAND 1. Entitlement to TDIU In the case of Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Board finds that the issue of TDIU is raised by the record. As such, a remand is required for further development. The matters are REMANDED for the following action: 1. Issue a VCAA notice letter to the Veteran concerning a claim for a TDIU. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Complete any additional development deemed necessary to adjudicate the issue of entitlement to TDIU. 4. Finally, readjudicate the appeal. If the TDIU remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Prinsen, Samantha 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.