Citation Nr: 22015361 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-15 275 DATE: March 17, 2022 ORDER Entitlement to a 10 percent rating, but not higher, for the appeal period prior to August 30, 2021, for right (major) volar plate avulsion residuals is granted. REMANDED Entitlement to a rating in excess of 10 percent as of August 30, 2021, for right (major) hand volar avulsion residuals is remanded FINDING OF FACT 1. Resolving reasonable doubt in favor of the Veteran, for the appeal period prior to August 30, 2021, there was a joint that became painful on use and subsequently, there was arthritis and limitation of motion a group of minor joints in the right hand. CONCLUSION OF LAW The criteria for entitlement to a rating of 10 percent, but not higher, for the appeal period prior to August 30, 2021, for right (major) hand volar avulsion residuals have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5003, 5010, 5228, 5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1977. In July 2021, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Diagnostic Code that corresponds with the service-connected hand disabilities are found in 38 C.F.R. § 4.71a, Diagnostic Code 5228 and 5229. Under Diagnostic Code 5228, a 0 percent rating is warranted for limitation of motion of the major thumb with a gap of less than 1 inch between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted under Diagnostic Code 5228 for limitation of motion of the major thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A maximum 20 percent rating under Diagnostic Code 5228 is warranted for limitation of motion of the major thumb with a gap of more than two inches between the thumb pad and the ringers, with the thumb attempting to oppose the fingers. In determining disability ratings, Diagnostic Code 5228 makes no differentiation between the major and minor hands. Diagnostic Code 5229 sets forth the rating criteria for limitation of motion of the index and long finger. Under Diagnostic Code 5229, a 0 percent rating is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum 10 percent rating is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When 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 major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is assigned with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is assigned with X ray evidence of involvement of two or more major joints or two or more minor joint groups. Ratings based on X-ray findings, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Entitlement to compensable rating prior to August 30, 2021, for right (major) volar plate avulsion residuals The Veteran asserts that service-connected volar plate avulsion injury (right hand disability) was worse than contemplated in the rating assigned prior to August 30, 2021. Medical records show that in May 2014, the Veteran reported constant pain in the right hand. A June 2014 occupational therapy note shows that a hand brace was prescribed. A December 2014 VA examination diagnosed right volar plate avulsion. The examiner also noted that imaging studies showed degenerative arthritis of the PIP (proximal interphalangeal) joint of the right third finger, the area of injury. The Veteran reported pain at the area, which was worse in cold weather. Pain with palpation and enlargement of the PIP joint was noted. There was full range of motion on initial testing and with repetitive use testing. There was no gap between any fingertips and the proximal transverse crease of the palm, no ankylosis of the thumb or fingers, and hand grip was normal. Prior to August 30, 2021, the Veteran's service-connected right hand disability was rated 0 percent under Diagnostic Code 5229 for limitation of motion of the index and long finger. Under Diagnostic Code 5229, a 0 percent rating is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum 10 percent rating is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. During the June 2019 Board hearing, the Veteran testified he had arthritis in the right hand which had worsened. He testified that the right hand disability caused pain, stiffness, limited mobility, and difficulty gripping. An April 2015 medical record shows that the Veteran reported right hand pain. In August 2016, the Veteran's doctor stated that the Veteran had right hand pain associated with the triggering. The doctor noted a history of fracture of the right long finger and arthritic changes in right hand including thumb. There was no notation regarding limited range of motion, grip, or gaps. A December 2019 VA examination diagnosed right volar plate avulsion injury and degenerative arthritis of the right hand. The Veteran reported pain and difficulty gripping. The examiner stated that previous X-rays showed arthritis in the area of the injury. There was full range of motion on initial testing and with repetitive use testing. There was no gap between any fingertips and the proximal transverse crease of the palm, no ankylosis of the thumb or fingers. An August 2021 X-ray showed advanced degenerative osteoarthritic changes throughout the right hand particularly at the thumb and thenar eminence. The Board finds that a compensable rating under Diagnostic Code 5228 is not warranted as limitation of motion of the major thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; limitation of motion of the major thumb with a gap of more than two inches between the thumb pad and the ringers, with the thumb attempting to oppose the fingers; ankylosis of any fingers or joints of the hand; amputation of any fingers or the hand; or loss of use of the hand, thumb, or any fingers such that the Veteran would be equally well served by amputation with prosthesis has not been shown. A compensable rating under Diagnostic Code 5229 is not warranted under the schedular criteria as the evidence does not show a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; extension limited by more than 30 degrees, for either the major or minor index or long finger; ankylosis of any fingers or joints of the hand; amputation of any fingers or the hand; or loss of use of the hand, thumb, or any fingers such that the Veteran would be equally well served by amputation with prosthesis. The Board finds that a compensable rating is warranted under Diagnostic Code 5229 and 38 C.F.R. § 4.59 as the evidence shows that the joint became painful on use and is therefore assigned the minimal compensable rating of 10 percent. Subsequently, the evidence shows X-ray evidence of arthritis with noncompensable limitation and would warrant a 10 percent rating under Diagnostic Code 5003-5229. However, traumatic arthritis has been shown and under Diagnostic Code 5010, and when 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. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence shows that prior to August 2, 2016, the joint became painful on motion and thus a 10 percent rating is warranted under Diagnostic Code 5229. 38 C.F.R. § 4.59. As of August 2, 2016, and prior to August 30, 2021, the right hand disability manifested as arthritis of the PIP joint of the third finger and the thumb which caused pain and functional impairment. Therefore, a 10 percent rating, but not higher, is warranted from August 2, 2016, and prior to August 30, 2021, under Diagnostic Code 5003-5229 for arthritis with noncompensable limitation of motion. Accordingly, the Board finds that a 10 percent rating, but not higher, for the appeal period prior to August 30, 2021, for a right hand disability, is warranted. The Board finds that the weight of the evidence is against the assignment of any higher rating. There is not reasonable doubt to resolve in favor of the Veteran, the evidence does not more nearly approximate the criteria for a higher rating, and the evidence is not in relative equipoise. Therefore, the claim for any higher rating must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent as of August 30, 2021, for right (major) hand volar avulsion residuals In July 2021, the Board noted that the December 2019 VA examiner did not identify the degree at which right long finger pain began. The Board remand instructions stated, in part, that the "degree at which any pain [wa]s exhibited should be specifically reported." The September 2021 VA examiner did not report the degree at which right long finger and thumb pain began. A remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that remand is necessary for a VA examination which notes the degree at which pain begins as the information will help to provide the Board with an accurate picture of the severity of the Veteran's right hand disability. The matter is remanded for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine severity of service-connected right (major) hand volar plate avulsion residuals. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Describe all functional impairment of the right hand and fingers and specifically identify which joints and fingers are involved with the volar plate avulsion residuals. The examiner should: (1) provide ranges of motion for the right fingers and hand; (2) state whether there is any additional limitation of function due to weakened motion, painful motion, excess motion, incoordination, fatigability, or on flare up; and (3) report the degree at which any pain is exhibited. (b.) State whether there is ankylosis of any of the fingers or any part of the hand. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has no effective function remaining of the hand or any fingers other than that which would be equally well served by amputation with use of a suitable prosthetic appliance. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.