Citation Nr: 21038129 Decision Date: 06/23/21 Archive Date: 06/23/21 DOCKET NO. 13-13 937 DATE: June 23, 2021 ORDER A disability rating greater than 40 percent for the traumatic amputation of digits two, three, four, and five of the left hand through the middle phalanges with excision of fingernail remnant and nail horn, fifth digit, and workable movement of all PIP joints (left hand disability), to include on an extraschedular basis, is denied. A separate disability rating of 20 percent, but no higher, for numbness, swelling, and sensory abnormalities associated with the left hand disability is granted, effective November 27, 2009. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran's service-connected left hand disability consists of traumatic amputations of the second through fifth fingers through the middle phalanges of the left hand. The Veteran's currently assigned rating of 40 percent is the maximum schedular rating available under the appropriate diagnostic code. 3. During the course of the claim, the Veteran displayed symptoms of numbness, swelling, and sensory abnormalities associated with her left hand disability. While these symptoms may not be contemplated by the diagnostic code used to assign her current 40 percent rating, they are contemplated elsewhere in the rating schedule. The Veteran's symptoms of numbness, swelling, and sensory abnormalities associated with her left hand disability are not representative of an exceptional disability picture. Rather, they are most analogous to moderate incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for a left hand disability, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Codes 5131, 5217; Long v. Wilkie, 33 Vet. App. 167 (2020). 2. The criteria for a separate disability rating of 20 percent, but no higher, for of numbness, swelling, and sensory abnormalities associated with her left hand disability are met, effective November 27, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8516; Long v. Wilkie, 33 Vet. App. 167 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction of the Veteran's claims file currently resides with the St. Petersburg, Florida RO. In May 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2016 and January 2019, the Board remanded the case for additional development. The case is once again before the Board for appellate review. Left Hand Disability As indicated above in the Conclusions of Law section, the Board declines to assign a rating greater than 40 percent, including on an extraschedular basis, for the Veteran's left hand disability under the currently-assigned diagnostic code. However, the Board finds that the assignment of a separate disability rating of 20 percent for symptoms of numbness, swelling, and sensory abnormalities associated with her left hand disability is warranted. Accordingly, to this extent, the Veteran's claim is granted. In support of this determination the Board first notes that, currently, the Veteran is in receipt of a 40 percent rating for service-connected traumatic amputation of digits two, three, four, and five of the left hand under 38 C.F.R. § 4.71a, Diagnostic Code 5217. Diagnostic Code 5217 is applicable to unfavorable ankylosis of four digits of one hand. The Board notes that this rating corresponds to binding pronouncements stated elsewhere in the rating schedule regarding amputations impacting upper extremities. See 38 C.F.R. § 4.71a. Diagnostic Codes 5126 through 5151 are applicable for multiple finger amputations. As four digits on the Veteran's left hand are service-connected for traumatic amputation, not including the left thumb, Diagnostic Code 5131 is relevant to the instant case. The rating schedule for multiple finger amputations contains six notes. Note (a) states that "[t]he ratings for multiple finger amputations apply to amputations at the proximal interphalangeal joints or through proximal phalanges." Note (b) states that "[a]mputation through middle phalanges will be rated as prescribed for unfavorable ankylosis of the fingers." Here, the record indicates that the Veteran's traumatic amputations are through the middle phalanges of the left hand. See August 2018 VA Hand and Fingers Conditions Examination Report; October 2017 VA Amputations Examination Report; May 1981 Service Treatment Record (STR). Accordingly, pursuant to Notes (a) and (b) to the rating schedule for multiple finger amputations, the Board may not apply Diagnostic Code 5131, but must treat the Veteran's service-connected left hand disability as unfavorable ankylosis of digits two, three, four, and five of the left handhence the current use of Diagnostic Code 5217. Under Diagnostic Code 5217, a 40 percent rating is assigned for unfavorable ankylosis of the index, long, ring, and little fingers of a nondominant hand. In this case, the Veteran's impacted left hand is her nondominant hand. See, e.g., October 2019 VA Hand and Finger Conditions Examination Report. Absent involvement of the left thumb, this is the maximum schedular rating the Veteran can receive for her traumatic amputations. Nevertheless, VA may award veterans who are assigned maximum schedular ratings for their disabilities even higher ratings on an extraschedular bases. Indeed, in January 2019, the Board remanded the Veteran's increased rating claim for referral to the Under Secretary for Benefits or the Director of the Compensation Service (Director) to determine whether an extraschedular rating is warranted. Following the Board's January 2019 remand, the Director found in December 2020 that an extraschedular rating was not warranted. However, the Board is not bound by the Director's adverse determination. See Wages v. McDonald, 27 Vet. App. 233 (2015). In determining whether an extraschedular rating is warranted, the Board notes that the Court of Appeals for Veterans Clams (Court) has established the following three-part test, based on 38 C.F.R. § 3.321(b)(1) for determining whether a claimant is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In applying the steps outlined above, the Board acknowledges that recently, in Long v. Wilkie, the Court clarified how VA is to apply the first Thun stepi.e., whether the established schedular criteria are inadequate to describe the severity and symptoms of the disability at issue. 33 Vet. App. 167 (2020). The Court first stated that Thun's first step is not a "mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the diagnostic code [at issue]." Id. at 173. The Court then specified that Thun is not a "more lenient, court-created, standard whereby anything not expressly listed in a diagnostic code is automatically deemed exceptional." With these foundational principles in mind, the Court held that Thun's first step centers on "whether the veteran's disability picture as a wholethat is, the full symptomatologypresents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance." Id. In providing a non-exhaustive list of guiding factors to address Thun's first step, the Court stated that determining whether a veteran's disability picture is exceptional "must be viewed in the context of all available rating tools and cannot be reduced to a mere comparison of a veteran's symptomatology with the language of a particular diagnostic code." Id. at 174 (citing Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018)). Applying Long to this case, the Board notes thatin addition to pain, limitations on gripping, and difficulty lifting with the left hand and typingthe Veteran has testified that she has experienced symptoms of numbness, swelling, and reduced sensation in her left upper extremity as a result of her service-connected left hand disability. See May 2016 Board Hearing Tr. at 11, 17-18. While neither these functional limitations nor symptoms are explicitly listed in or contemplated by Diagnostic Code 5217, the Board nonetheless finds that the Veteran's disability has not presented an exceptional picture as symptoms of numbness, swelling, and sensory abnormalities and the associated functional limitations may be addressed by other tools available in the rating schedule. Accordingly, the Board finds that entitlement to an extraschedular rating for a left hand disability is not warranted in this case. 38 C.F.R. § 3.321(b)(1). Despite the Board finding that an extraschedular rating is not warranted, it nevertheless finds that the symptoms of numbness, swelling, and reduced sensation in the left upper extremity must be evaluated by the assignment of a separate compensable rating. See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017) (holding that entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code). In this vein, the Board concludes that the above-mentioned symptoms may be analyzed under 38 C.F.R. § 4.124a, Diagnostic Code 8516 as they are analogous to symptoms displayed by a disability of the ulnar nerve. Under Diagnostic Code 8516, 10, 20, and 30 percent ratings are assignable for mild, moderate, and severe incomplete paralysis of the ulnar nerve of the non-dominant arm. See 38 C.F.R. § 4.124a. Comparatively, a 50 percent rating is assignable for complete paralysis of the ulnar nerve of the non-dominant arm. Diagnostic Code 8516 associates the following symptoms with complete paralysis: a "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 (or reverse), cannot adduct the thumb; flexion of wrist weakened. Id. Turning to the evidence in the instant case, the Board first notes that it has based its selection of Diagnostic Code 8516 upon the statement of an October 2017 VA hand and finger conditions examiner. Specifically, during that examination, the examiner indicated that symptoms from the left hand radiated most severely into a left ulnar nerve distribution, although the examiner remarked that an EMG was not performed. Separate from these remarks by the October 2017 VA examiner, the Veteran described left hand numbness and swelling during her May 2016 Board hearing. Hearing Tr. at 11. In addition, as documented in a May 2013 counseling records from VA Vocational Rehabilitation, the Veteran described feeling numbness and coldness in her left hand consistently, impacting her ability to perform routine tasks like gripping, grasping small items, typing efficiently on a keyboard, and lifting heavy objects. Separate from the Veteran's lay testimony of record, medical evidence associated with the Veteran's claims file documents objective neurological deficits of the left upper extremity associated with the Veteran's left hand disability. Specifically, in June 2013, the Veteran displayed weakness and muscle atrophy of the left forearm during a visit to Naval Hospital Jacksonville. Similarly, during an October 2013 VA physical medicine rehabilitation consultation, the Veteran displayed dysesthesia, a positive Tinel's sign, and decreased deep tendon reflexes of the bicep, brachioradialis, and triceps during testing of the left upper extremity. From this evidence of record, the Board concludes that the Veteran's disability picture is most analogous to moderate incomplete paralysis of the ulnar nerve. Under Diagnostic Code 8516, moderate incomplete paralysis of the non-dominant arm warrants the assignment of a 20 percent rating. See 38 C.F.R. § 4.124a. In granting a separate 20 percent rating, the Board also declines to assign the next higher rating of 30 percent. Specifically, at no point during the claim period did the Veteran display an absence of sensation or reflexes. Additionally, while the Veteran did report swelling during the claim period, swelling was not noted by a medical professional in any treatment records or examination reports during the claim period. Moreover, the evidence does not demonstrate that even with the presence of swelling, the Veteran experienced any limitations other than those already contemplated by the Board in assigning the separate 20 percent rating namely, limitations on gripping, and difficulty lifting with the left hand and typing. Accordingly, the Board concludes that a 20 percent rating, representative of moderate incomplete paralysis under Diagnostic Code 8516, is the most appropriate rating for the Veteran's symptoms not contemplated by Diagnostic Code 5217. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.