Citation Nr: 21032024 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-40 468 DATE: May 25, 2021 ORDER Entitlement to an initial compensable rating of 10 percent, but no higher, for an old fracture, middle phalanx of the fourth finger, with fifth finger sprain and degenerative arthritis of the right hand (hereinafter "right hand disability") is granted. FINDING OF FACT The Veteran's right hand disability is productive of noncompensable limitation of motion of the ring and little fingers; there is x-ray evidence of degenerative arthritis with limitation of motion of one minor joint group. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent rating, but no higher, for a right hand disability have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5230 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1987 to October 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in October 2019 and August 2020 for additional development. This case has been returned to the Board for further appellate action. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) combined the fifth finger sprain and right-hand degenerative arthritis disabilities with the old fracture middle phalanx of the fourth finger disability. However, the combination of those disabilities still resulted in a noncompensable rating. Additionally, the Board acknowledges that when a Veteran files a claim for an increased rating, they are seeking the maximum benefit under any applicable theory, including TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the medical evidence of record throughout the appeal period indicates that the Veteran is currently employed as a police officer. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. 38 U.S.C. § 7105(b) (2018); 38 C.F.R. §§ 3.104, 20.1103 (2020). Increased Rating Right Hand Disability The Veteran's service-connected right hand disability has been rated as non-compensable under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5230. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2020). Here, the hyphenated diagnostic codes indicate that the Veteran's right hand disability is rated, by analogy, under the criteria for degenerative arthritis (Diagnostic Code 5003) and the criteria for limitation of motion of the ring or little finger (Diagnostic Code 5230). At the outset, the Board notes that during the pendency of the appeal the rating criteria for evaluating musculoskeletal disabilities, under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76543, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a (2020)). However, the Board notes that those regulatory changes did not affect the relevant criteria, applicable to this case, under Diagnostic Code 5003 or under Diagnostic Code 5230. In that regard, both prior to and after February 7, 2021, under Diagnostic Code 5003, degenerative arthritis established by an x-ray finding will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Additionally, both prior to and after February 7, 2021, Diagnostic Code 5230 only provided a noncompensable rating for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2020). A noncompensable rating is the maximum rating available for limitation of motion under Diagnostic Code 5230. The Veteran asserts that the symptoms of his right hand disability are more severe than what is contemplated by his currently assigned rating. In April 2013, the Veteran was afforded a VA examination for hand and finger conditions. At that time, the Veteran reported that he had a persistent range of motion (ROM) limitation in his fourth finger, to include an inability to completely flex at the distal interphalangeal. The Veteran also reported good grip strength and that he had no flare-ups at that time. The VA examiner noted that there was evidence of limitation of motion or painful motion of the ring finger but not the little finger. However, the VA examiner noted that there was no ankylosis, degenerative or traumatic arthritis, or deformity. A July 2013 treatment note revealed that the Veteran was diagnosed with degenerative joint disease post-fracture of the right ring finger. A March 2014 treatment note indicated that the Veteran had a deformed fourth finger and limited flexion. In August 2014, the Veteran reported that his last two fingers go to sleep at times and that he had a loss of grip strength in his right hand. Subsequently, in September 2014, the Veteran reported that he had decreased sensation to light touch in his last two fingers. In March 2018, the Veteran was afforded a VA examination for hand and finger conditions. At that time, the Veteran reported loss of ROM, decreased strength, an inability to get a good grip on objects, pain, intermittent swelling, and soreness at the top of his fingers. The also Veteran reported that he had flare-ups if he worked a lot that caused swelling, tingling, sharp pain upon bending, and difficulty with grip. The VA examiner noted there was abnormal ROM on flexion of the right ring and little finger, and pain on examination. Additionally, the VA examiner noted that the examination was not being conducted during a flare-up and she was unable to say, without mere speculation, if pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Further, the VA examiner reported that the degenerative or traumatic arthritis in the Veteran's right hand was not documented in multiple joints of the same hand, and noted that the March 2016 x-ray revealed only mild degenerative changes at the proximal and distal interphalangeal joints. Finally, the VA examiner reported no muscle atrophy, ankylosis, or deformity. In December 2019, the Veteran was again afforded a VA examination for hand and finger conditions. At that time, the Veteran reported decreased ROM, weakness of the right hand with prolonged use and grip, and fatigue with grip. The Veteran did not report any flare-ups at that time. The VA examiner noted that the Veteran's ROM was abnormal for flexion of the right ring and little finger and that there was pain upon examination of flexion and extension. Additionally, the VA examiner noted that there was objective evidence of pain on passive ROM testing but not when the joint was used in non-weight bearing. Further, the VA examiner reported no muscle atrophy, ankylosis, deformity, or abnormal findings on imaging studies. In September 2020, the Veteran was afforded another VA examination for hand and finger conditions. At that time, the Veteran reported weakness and soreness of the right fourth and fifth finger and difficulty with the power grasp and sustained grip of his right hand. The VA examiner noted that the Veteran's ROM, both initial and passive, was abnormal as far as the flexion of the right ring finger and little finger. Additionally, the VA examiner noted that there was pain on examination of the Veteran's flexion and extension but that there was no objective evidence of pain on non-weight bearing. Further, VA examiner noted that the Veteran's right hand degenerative arthritis was documented in multiple joints of the same hand, including thumb and fingers. However, the VA examiner reported that there was no ankylosis, atrophy, or deformity. The Board finds that the March 2018 and December 2019 VA examinations are of low probative value. In that regard, the March 2018 VA examiner failed to address the ROM of the right ring and little finger, in degrees, on passive motion, weight-bearing, and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2020). Additionally, the December 2019 VA examiner failed to document and assesses the Veteran's right-hand degenerative arthritis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In contrast, the Board finds that the September 2020 VA examination is the most probative evidence of record. In that regard, the VA examiner reviewed and incorporated the relevant evidence, relied on his own expertise, knowledge, and training to develop his opinions, and provided all pertinent assessments related to determining the Veteran's ROM. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the probative and competent evidence of record as discussed above, the Board finds that a higher, 10 percent rating is warranted throughout the appeal. The Board notes that for the purpose of rating a disability from arthritis, under Diagnostic Code 5003, multiple involvements of the interphalangeal joints (i.e. the distal interphalangeal joint, proximal interphalangeal joint, and carpometacarpal joint) are considered a group of minor joints, ratable on a parity with major joints. 38 C.FR. § 4.45(f) (2020). The September 2020 VA examiner pointed out that the March 2018 x-ray revealed degenerative changes at the proximal and distal inter-phalangeal joints of the ring finger, which constitute one minor joint group. Therefore, the criteria for a 10 percent disability rating under Diagnostic Code 5003, x-ray evidence of degenerative arthritis along with limitation of motion affecting a group of minor joints, have been met. Accordingly, a rating of 10 percent is warranted under Diagnostic Code 5003. As noted above, Diagnostic Code 5230 does not provide a compensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 418-29 (2015). Despite the Veteran's demonstrated limitation of motion, there is no authority for the Board to assign a higher rating under this code. Higher ratings are available for ankylosis or amputation of the ring and little fingers. However, no ankylosis has been shown, and the VA examiners specified that remaining function of the fingers would not be equally well-served by an amputation and prosthesis. Therefore, higher ratings for ankylosis or by analogy to amputation are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5219, 5223, 5155, 5156 (2020). (Continued on the next page) Finally, the Board notes that consideration has been given to assigning staged ratings. However, at no time during the period in question has the Veteran's right- hand disability warranted a higher schedular rating than that assigned in the herein decision. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, based on the foregoing, the Board finds that the Veteran is entitled to an initial compensable rating of 10 percent, but no higher, for his right hand disability. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5230 (2020). Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.