Citation Nr: 22016290 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-06 167A DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 10 percent prior to January 11, 2021, for a right ulnar nerve disability is denied. Entitlement to a rating in excess of 30 percent as of January 11, 2021, for a right ulnar nerve disability is denied. Entitlement to a rating in excess of 10 percent for limitation of motion of the right long finger is denied. Entitlement to a compensable rating for chronic Jersey finger of the right ring finger is denied. Entitlement to a compensable rating for limitation of motion of the right little finger is denied. FINDINGS OF FACT 1. Prior to January 11, 2021, the Veteran's ulnar nerve condition was manifested by mild incomplete paralysis of the major ulnar nerve; not moderate incomplete paralysis of the major ulnar nerve or worse. 2. Effective January 11, 2021, the Veteran's ulnar nerve condition was manifested by moderate incomplete paralysis of the major ulnar nerve; not severe incomplete paralysis of the major ulnar nerve or worse. 3. The Veteran's right long finger disability is assigned a 10 percent rating, which is the maximum rating possible under diagnostic code 5229 which rates limitation of motion of the long finger; there is no evidence of ankylosis or symptoms analogous to amputation. 4. The Veteran's right little finger disability is assigned a 0 percent rating, which is the maximum rating possible under diagnostic code 5230 which rates limitation of motion of the little finger; there is no evidence of ankylosis or symptoms analogous to amputation. 5. The Veteran's right ring finger disability is assigned a 0 percent rating, which is the maximum rating possible under diagnostic code 5230 which rates limitation of motion of the ring finger; there is no evidence of ankylosis or symptoms analogous to amputation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to January 11, 2021, for a right ulnar nerve disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8516. 2. The criteria for entitlement to a rating in excess of 30 percent as of January 11, 2021, for a right ulnar nerve disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8516. 3. The criteria for entitlement to a rating in excess of 10 percent for limitation of motion of the right long finger have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5229. 4. The criteria for entitlement to a compensable rating for limitation of motion of the right little finger have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5230. 5. The criteria for entitlement to a compensable rating for chronic Jersey finger of the right ring finger have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to October 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In August 2019 and July 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent prior to January 11, 2021, for a right ulnar nerve disability. 2. Entitlement to a rating in excess of 30 percent effective January 11, 2021, for a right ulnar nerve disability. The Board will consider any potentially applicable Diagnostic Code in its analysis. Disease of the peripheral nerves of the upper extremities are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8510 to 8719. The Veteran's service-connected ulnar nerve condition has been rated pursuant to Diagnostic Codes 8516. The evidence shows that the Veteran's right hand is his dominant hand. Therefore, the diagnostic criteria for the major extremity apply in this case. 38 C.F.R. § 4.69. Under Diagnostic Code 8516, a 10 percent rating is warranted for mild paralysis of the ulnar nerve in the major (dominant) upper extremity or minor (non-dominant) upper extremity. A 30 percent rating is warranted for moderate paralysis of the ulnar nerve in the major upper extremity; a 20 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve in the minor upper extremity. A 40 percent disability rating is warranted for severe incomplete paralysis of the ulnar nerve in a major upper extremity; 30 percent rating is warranted for severe incomplete paralysis of the ulnar nerve in a minor upper extremity. A 60 percent disability rating is warranted for complete paralysis of the ulnar nerve in the major upper extremity; a 50 percent rating is warranted for complete paralysis of the ulnar nerve in the minor upper extremity. 38 C.F.R. § 4.124a. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. This increased rating claim was received by VA on July 29, 2013. The ulnar nerve condition has been rated under Diagnostic Code 8516 as 10 percent, prior to January 11, 2021; and 30 percent disabling as of January 11, 2021. The Veteran contends that the ulnar nerve disability is more severe than represented by the assigned ratings. At a September 2013 VA examination, the Veteran complained of pain, numbness, weakness, and decreased range of motion in the right hand. The Veteran stated that the pain was worse in the morning, but there were some days where the pain and numbness were severe throughout the day. The Veteran was not found to have ankylosis or functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing found no acute bone pathology or degenerative changes. September 2017 diagnostic testing found no acute bone pathology or degenerative changes. January 2020 radiography found that lateral and oblique radiographs of the right hand found no evidence of an acutely displaced fracture, dislocation, or radiopaque foreign body. There was a subchondral cyst in the head of the third metacarpal. There was a mild deformity of the proximal and mid portion of the fifth metacarpal that suggested an old, healed fracture. The impression was subchondral cyst in the head of the third metacarpal, new; with mild deformity of the proximal and mid portion of the fifth metacarpal that suggested an old, healed fracture, unchanged. At a January 2021 VA peripheral nerves examination, the Veteran complained of numbness, decreased sensation, and tingling in the right ring finger. The Veteran was found to have mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. He also had 4/5 right side grip strength. The Veteran did not have muscle atrophy, decreased reflexes, decreased sensation, or trophic changes. Phalen's sign and Tinel's sign testing were negative. The Veteran was diagnosed with moderate incomplete paralysis of the right ulnar nerve. The Veteran was not found to have functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. At a November 2021 VA peripheral nerves examination, the Veteran complained of numbness and tingling in the right middle, ring, and little finger. The Veteran stated that he experienced moderate to severe burning, numbness, paresthesia, and sharp shooting pain in third to fifth right hand digits. He also had loss of dexterity, grip strength, and weakness. The Veteran was found to have moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. He also had 3/5 right sided grip and pinch strength. The Veteran did not have muscle atrophy, decreased reflexes, decreased sensation, or trophic changes. Phalen's sign and Tinel's sign testing were negative. The Veteran was diagnosed with moderate incomplete paralysis of the right ulnar nerve. The Veteran was not found to have functional impairment of any extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Prior to January 11, 2021, the Board finds that a higher rating is not warranted. Prior to January 11, 2021, the evidence of record does not demonstrate moderate incomplete paralysis of the ulnar nerve commensurate with an increased rating of 30 percent pursuant to Diagnostic Code 8516. The Board finds that the evidence did not show involvement more than wholly sensory, or sensory involvement of such severity as to be elevated to a moderate level of incomplete paralysis. That level of impairment is consistent with the currently assigned 10 percent rating under the applicable diagnostic codes. Effective January 11, 2021, the Board finds that a higher rating is not warranted. Effective January 11, 2021, the evidence of record does not demonstrate severe incomplete paralysis of the ulnar nerve commensurate with an increased rating of 40 percent pursuant to Diagnostic Code 8516. The evidence does not show trophic changes, and weakness with grip strength reduction and incoordination. The January 2021 and November 2021 examinations found that the involvement was moderate. That level of impairment is consistent with the currently assigned 30 percent rating under the applicable diagnostic codes. Accordingly, the Board finds that the weight of the evidence is against the assignment of a rating greater than 10 percent, prior to August 7, 2019; or a rating greater than 30 percent as of August 7, 2019, for an ulnar nerve disability. The Board finds that the evidence is not in relative equipoise, the criteria for the higher ratings are not more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a rating in excess of 10 percent for limitation of motion of the right long finger. The Veteran is currently assigned a 10 percent rating for limitation of motion of the right long finger pursuant to Diagnostic Code 5229. Diagnostic Code 5229 states that for limitation of motion of the index or long finger, a 0 percent rating is warranted when there is a gap of less than one inch between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension limited by no more than 30 degrees. A 10 percent rating is warranted when there is a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a (2018). Also relevant to consideration of the Veteran's right index finger disability is Diagnostic Code 5225. Under Diagnostic Code 5225, favorable or unfavorable ankylosis of the index finger of either the major or minor hand is rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5229. Whether an additional rating is warranted for resulting limitation of motion of other digits or interference with overall function of the hand should also be considered. This increased rating claim stems from an initial grant of service connection. The Veteran contends that the right long finger disability is more severe than represented by the assigned rating. At a September 2013 VA examination, the Veteran complained of pain, numbness, weakness, and decreased range of motion in the right hand. The Veteran stated that, during flare-ups, it was hard to write, use a mouse, and tie his shoes. Flexion of the right long finger was noted as resulting in, at worst, a gap less than 1 inch between the fingertip and proximal transverse crease of the palm. The Veteran was not found to have ankylosis or functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing revealed no acute bone pathology or degenerative changes. In support of the claim, the Veteran has submitted numerous statements, to include April 2019 hearing testimony, detailing current symptoms associated with the service-connected disability and how it impacted his life. During the April 2019 Board hearing, the Veteran indicated a worsening of the right hand disabilities since the most recent examination. Subsequently, the Veteran underwent VA hand and finger condition examination in January 2020. However, a July 2021 Board Remand found the January 2020 hand examination and November 2020 addendum to be incomplete and deficient. Therefore, the January 2020 VA hand and finger examination and November 2020 addendum are incomplete for rating purposes and will not be considered in adjudication of this claim. At a November 2021 VA examination, the Veteran complained of pain and numbness in the right hand. The Veteran was not found to have ankylosis or functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Effective July 29, 2013, the date of the grant service connection, the Veteran is assigned a 10 percent rating for a service-connected right long finger disability pursuant to Diagnostic Code 5229. A 10 percent rating is the maximum schedular rating assignable under Diagnostic Code 5229. Therefore, no higher schedular rating can be assigned. Additionally, Diagnostic Codes 5216 to 5227 are inapplicable because there is no evidence of ankylosis. The Board has also considered whether rating as amputation is warranted. However, to date, no examiner has found that the Veteran right hand and fingers would be equally well served by amputation. Therefore, the Board finds that the symptoms of the right finger disabilities are not equivalent to amputation of the fingers or loss of use of the right hand. Therefore, a rating pursuant to Diagnostic Codes 5126 to 5227 is not appropriate. Accordingly, the Board finds that the weight of the evidence is against the assignment of a rating greater than 10 percent, effective July 29, 2013, for a right long finger disability. The Board finds that the evidence is not in relative equipoise, the criteria for the higher ratings are not more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to a compensable rating for limitation of motion of the right little finger. 5. Entitlement to a compensable rating for chronic Jersey finger of the right ring finger. The Veteran is currently assigned a 0 percent rating for limitation of motion of the right little finger pursuant to Diagnostic Code 5230. The Veteran is also currently assigned a 0 percent rating for chronic jersey finger of the right ring finger pursuant to Diagnostic Code 5230. Under Diagnostic Code 5230, any limitation of motion of the little finger is assigned a 0 percent rating. 38 C.F.R. § § 4.71a. Also relevant to consideration of the Veteran's right ring and little finger disabilities is Diagnostic Code 5227. Diagnostic Code 5227 provides for a single 0 percent rating for ankylosis of the ring or little finger. A note following Diagnostic Code 5227 instructs that it should be considered whether rating as amputation is warranted and whether an additional rating is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. This increased rating claims stem from the initial grants of service connection. The Veteran contends that the right little and ring finger disabilities are more severe than represented by the assigned ratings. At a September 2013 VA examination, the Veteran complained of pain, numbness, weakness, and decreased range of motion in the right hand. The Veteran stated that during flare-ups it was hard to write, use a mouse, and tie his shoes. Flexion of the right ring finger was noted as resulting in, at worst, a gap 1 inch or more between the fingertip and proximal transverse crease of the palm. The Veteran was not found to have ankylosis or functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing found no acute bone pathology or degenerative changes. In support of the claim, the Veteran has submitted numerous statements, to include April 2019 hearing testimony, detailing current symptoms associated with the service-connected disability and how it impacted his life. During the April 2019 Board hearing, the Veteran indicated a worsening of the right hand disabilities since the most recent examination. Subsequently, the Veteran underwent VA hand and finger condition examination in January 2020. However, a July 2021 Board Remand found that January 2020 hand examination and November 2020 addendum to be incomplete and deficient. Therefore, the January 2020 VA hand and finger examination and November 2020 addendum reports are incomplete for rating purposes and will not be considered in adjudication of this claim. At a November 2021 VA examination, the Veteran complained of pain and numbness in the right hand. The Veteran was not found to have ankylosis or functional impairment of any extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Effective July 29, 2013, the effective date of service connection, the Veteran is assigned a 0 percent rating for a service-connected right ring finger disability pursuant to Diagnostic Code 5230. A 0 percent rating is the maximum schedular rating assignable under Diagnostic Code 5230, thus no higher rating can be assigned. The evidence does not show ankylosis, limitation of motion tantamount to ankylosis, or a condition such that the Veteran would be equally well served by amputation with prosthesis. Effective January 7, 2020, the effective date of service connection, the Veteran is assigned a 0 percent rating for a service-connected right little finger disability pursuant to Diagnostic Code 5230. A 0 percent rating is the maximum schedular rating assignable under Diagnostic Code 5230, thus no higher rating can be assigned. The evidence does not show ankylosis, limitation of motion tantamount to ankylosis, amputation, or a condition such that the Veteran would be equally well served by amputation with prosthesis. After reviewing of the evidence in light of the applicable legal criteria, the Board finds that a compensable disability rating for the right little finger or right ring finger is not warranted. Specifically, under the applicable diagnostic criteria, any limitation of motion or ankylosis of the right little finger and right ring finger is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Codes 5227, 5230. Although actual painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for limitation of motion of the joint, the Rating Schedule provides no compensable rating for limitation of motion or ankylosis of the little finger or ring finger. 38 C.F.R. § 4.59. Therefore, application of 38 C.F.R. § 4.59 unfortunately does not assist the Veteran in this case. Sowers v. McDonald, 27 Vet. App. 472 (2016). Thus, no compensable rating is available. Additionally, although the evidence indicates that the Veteran may have decreased ranges of motion of the right little and ring finger, there is no documentation of overall functional impairment of the right hand due to his service-connected finger disabilities. The Board has considered rating the Veteran's right little and ring finger disability as an amputation under 38 C.F.R. § 4.71a, Diagnostic Code 5156 to achieve a compensable rating but the record does not contain evidence to show functional impairment to a degree that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There is no indication of limitation of motion of the other digits or interference with the overall function of the hand caused by the right little and ring finger disabilities. Thus, the Board finds that the record does not provide a basis upon which to find that the Veteran's symptomatology is the equivalent to an amputation. Butts v. Brown, 5 Vet. App. 532 (1993). The Board finds that the right little and ring finger also do not warrant any rating in conjunction with the service-connected right long finger disability as ankylosis, amputation, or a condition tantamount to ankylosis or amputation is not shown in any of the three fingers. Accordingly, the Board finds that the weight of the evidence is against the claims. Therefore, a compensable rating for a right ring finger disability is not warranted and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, a compensable rating for a right little finger disability is not warranted and the claim is denied. The Board finds that the evidence is not in relative equipoise, the criteria for the higher ratings are not more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107 b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.