Citation Nr: 0001180 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-32 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for service- connected traumatic arthritis of the first carpal and metacarpal joints of the right hand, currently rated as 20 percent disabling. 2. Entitlement to an increased evaluation for service- connected partial amputations of the ring and little fingers of the right hand with scars of the palm, currently evaluated as 20 percent disabling. 3. Entitlement to an increased evaluation for service- connected arthritis of the right wrist, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The veteran had active service from April 1952 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in June 1994 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied increased ratings for all of the disabilities on appeal. The issues currently before the Board were remanded in March 1997 for additional development. Subsequently, the case was appealed to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision in November 1998, the Court noted that the Board had remanded these issues and therefore there were no final decisions for the Court to review. The case was returned to the Board in September 1999. In a statement received in December 1996, the veteran requested that a Board decision in April 1983 which denied service connection for hypertension be reviewed on the grounds of "clear and unmistakable error"(CUE). In a letter dated November 3, 1999, the veteran was advised by the Director of Administrative Services of the Board that in January 1999, VA published final CUE regulations, a copy of which was enclosed. The veteran was informed that the Board would wait 60 days before adjudicating his request. In a letter received on November 16, 1999, the veteran stated that he wished the Board to disregard his CUE claim at this time and requested the Board adjudicate his claims for increased ratings which were currently on appeal. In February 1996, the veteran claimed CUE in a rating decision of March 1971 that had denied service connection for an eye disorder. The March 1971 rating decision had been subsumed in a decision of the Board in July 1971. In September 1996, the RO deferred adjudication of this issue. Later that month, the veteran requested a Statement of the Case on this issue. It is referred to the RO for appropriate action. FINDINGS OF FACT 1. The service-connected traumatic arthritis of the first carpal and metacarpal joints of the right hand is manifested by complaints of pain on use, with clinical evidence principally of normal range of motion of the thumb, x-ray evidence of arthritis and pain and tenderness involving the thumb. 2. The veteran sustained amputation at the middle phalanges of the major 4th and 5th fingers. 3. Prior to May 8, 1999, the amputation stumps were asymptomatic; from May 8, 1999, the amputation stumps were exquisitely tender. 4. The palm scars of the right hand are asymptomatic and do not cause limitation on function of an affected part. 5. The right wrist disorder is primarily manifested by pain on use, x-ray evidence of arthritis and some limitation of supination without evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for service-connected residuals traumatic arthritis of the first carpal and metacarpal joints of the right hand are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5010-8712 (1999). 2. Prior to May 8, 1999, the criteria for a rating greater than 20 percent for service-connected partial amputations of the ring and little fingers of the right hand with scars of the palm were not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5219, 7803, 8804, 7805 (1999). 3. From May 8, 1999, the criteria for a rating of 30 percent, but no higher, for service-connected partial amputations of the ring and little fingers of the right hand with scars of the palm are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5219, 7804 (1999). 4. The criteria for a rating greater than 10 percent for service-connected residuals of the right wrist fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.71a, Diagnostic Codes 5010- 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background. The service medical records disclose that the veteran suffered a partial traumatic amputation of the right distal phalanx of the 4th finger and middle phalanx of the fifth finger when an enemy trip flare exploded. On a VA examination in June 1954, the diagnoses were: scars of laceration of the palmar surface of the right hand; absence, traumatic, distal phalanx right middle finger; distal and middle phalanges of the right little finger. The RO, by rating action in July 1954, granted service connection for the traumatic amputation, partial, ring and little fingers, right hand, and awarded a 20 percent rating from April 1954. A rating decision in October 1969 granted service connection for changes at the first carpal metacarpal junction of the right hand, evaluated as noncompensable from August 1969. A rating action by the RO in April 1970 continued the 20 percent rating for the traumatic amputations of the ring and little fingers under Diagnostic code 5219, and granted a 20 percent rating for traumatic arthritis of the first carpal- metacarpal joint, under Diagnostic Codes 5010-8712. This resulted in a combined 40 percent rating. A rating decision in November 1978 granted service connection for traumatic arthritis of the right wrist, evaluated as 10 percent disabling under Diagnostic Codes 5010-5215 from July 1977. The combined rating remained at 40 percent. A rating decision in May 1983 granted service connection for scars of the palm of the hand. The scars were rated as part of the service-connected amputation of the right ring and little fingers of the right hand. The rating for the amputation of the ring and little fingers remained at 20 percent. The veteran received a VA examination in April 1994. He complained of problems with both arms which he attributed to the police pulling on his arms on four different occasions from 1990-1992. He stated that his arms became numb and ached all of the time. The examiner reported a traumatic amputation of portions of the right 4th and 5th fingers in service. He stated that these wounds healed, leaving the veteran with the amputations but no other apparent problems. On examination, there was no evident neurovascular deficit in either hand. He had an amputation through the PIP joint of the 5th finger and the DIP of the 4th and 5th fingers of the right hand. He had full range of motion of the remaining joints of the fingers of the right hand. There was no evidence of neuroma or other complications as a result of the amputations. A pertinent clinical impression was healed partial amputations of the right 4th and 5th fingers (presently asymptomatic). The examiner commented that the veteran did not present with any measurable degree of physical impairment to either upper extremity as a result of any neurovascular or orthopedic problem of the arms or hands. He did have some degree of physical impairment with use of the right hand as a result of the traumatic amputation but he was in no need of definite orthopedic treatment or further diagnostic evaluation with regard to arm complaints. The veteran testified at a hearing at the RO in February 1995. He stated that in had pain in the right hand which went up to his shoulder. After he worked for a day, he needed to rest it for two weeks. He also complained of wrist pain. He testified that he had to quit barbering because he cut someone on the ear with clippers as a result of his hand condition. He complained that he had numbness of the palm of his right hand. He stated that he was losing strength of the hand. The veteran received a VA examination on May 8, 1999. He was described as right handed. The examiner stated the veteran had two surgeries to his right hand, one for debridement and the second for a skin graft. The veteran claimed that his multiple scars were painful. He stated that he had to give up jobs as a mechanic and barber because his right hand stiffened on him. He was currently working in a junk yard. He stated that when he used his right hand, the scars become painful and swollen. He had more pain in cold weather. He claimed that his 4th and 5th digits were very sensitive at the tips and that he had pain at the base of the thumb. He also claimed pain of the right wrist and that it swelled with activity. He did have a bump over the right wrist. He had pain around this area and he stated that he used his left hand for most activities. He denied numbness or tingling in his hand. He was able to use his hand although it became painful. He had pain when he first woke up and tried to use his hand. On examination, both amputations were described as well healed and skin grafted. They were incredibly sensitive to touch over the distal phalanx where the amputations were. The veteran did not have any tenting of the skin around the area. He had good motion about the metacarpal joints of all fingers. He was able to make a grip. He had some pain over the proximal interphalangeal joints of the other digits, including the second and third. Examination of the palm of the hand revealed a healed right thenar scar measuring 2.5 centimeters. The scar was hard but not irritated. He had a four centimeter scar over the mid-palm, at the base proximal to the metacarpal phalangeal joint of the long finger. This was well healed and it did not appeared to be irritated. He said the scars became irritated and painful when he used them quite a bit and rubbed them against material. He had pain over the metacarpal joints of the right thumb. He was exquisitely tender about the area. The veteran did not have any decreased range of motion of the metacarpophalangeal joint of the right thumb. The carpometacarpal joint was extremely tender to palpation at the base of the thumb. He also had tenderness over the radial styloid. Examination of the distal radial ulnar joint and wrist revealed that he had partial subluxation of the distal radial ulnar joint with the ulna subluxed dorsally. He had tenderness about the distal radial ulnar joint. He had full pronation of 90 degrees but supination was limited to 70 degrees. At the extreme of supination, he started having pain. He had tenderness over the ulnar aspect of the wrist. X-rays revealed evidence of arthritis with osteophyte and joint flaring at the proximal interphalangeal joint of the second, third and fourth metacarpals. He also had mild evidence of carpometacarpal arthritis of the right thumb. An x-ray of the right wrist revealed subluxation of the distal radial ulnar joint. He had arthritis at the distal radial ulnar joint with multiple osteophytes. The ulnar styloid appeared to be healed in a malunited position. There was likely a ligament joint injury as well. He had distal radial ulnar joint arthritis. The clinical impressions were: status post amputation of the fourth and fifth digits, as described above, with stumps; carpometacarpal arthritis of the right thumb with pain with limitation of motion; distal radial ulnar joint subluxation with pain at the distal radial ulnar joint with arthritis and limitation with supination. The examiner said that the palm scars were clearly nontender but it was conceivable if he used them and rubbed them against material, they would become tender and cause him pain. If he used gloves, this should decrease this problem. The arthritis that he had at the carpometacarpal joint, and especially at the distal radial joint because of subluxation that was probably the result of the initial injury, could cause pain on motion and use. He would have a hard time trying to use the right hand and would have stiffness and pain in his right hand when he tried to use it. He had evidence of arthritis that would cause pain with motion and which has limited his activity and he has had occupational changes because of it. Legal Analysis. The veteran has presented well-grounded claims for increased evaluations for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased evaluation is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The RO has associated service medical records with the file and has accorded the appellant examinations, and sufficient evidence for an equitable disposition of the appellant's claims is before the Board. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Increased rating for traumatic arthritis of the first carpal and metacarpal joints. Severe incomplete paralysis of the lower radicular group of peripheral nerves will be rated as 50 percent disabling in the major upper extremity. Moderate incomplete paralysis will be rated as 40 percent disabling in the major upper. Mild incomplete paralysis of either upper extremity will be rated as 20 percent disabling. 38 C.F.R. Part 4, Diagnostic Code 8512 (1999). Diagnostic Code 8712 is for neuralgia of the lower radicular group. Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis (Diagnostic Code 5003) on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5224 provides for a maximum rating of 20 percent for unfavorable ankylosis of the thumb. The veteran's service-connected traumatic arthritis of the first carpometacarpal joint of the right hand has been rated by the RO under Diagnostic Codes 5010-8712. On the recent VA examination, he did not have any decreased motion of the thumb. If evaluated on the basis of traumatic arthritis, the current 20 percent rating is the maximum allowed under Diagnostic Code 5224 for unfavorable ankylosis or for limited motion equivalent to unfavorable ankylosis of the thumb. See Note (3) preceeding Diagnostic code 5220 . If evaluated Diagnostic Code 8712 on the basis of neuralgia, on the VA examination in April 1994, the examiner stated that there was no evidence of any neurovascular deficit. Also, on the VA examination in May 1999, the veteran denied that he had numbness or tingling of the right hand. In addition, he had a good grip and good motion about the metacarpal joints of all the fingers of the hand. Furthermore, the examiner did not note any evidence of a neurological deficit as a result of the service-connected condition. The current medical evidence shows that pertinent manifestations of the thumb disability, insofar as rating the disability under Diagnostic Code 8712 are concerned, consist principally of pain and exquisite tenderness over the metacarpal joints of the thumb and extreme tenderness to palpation at the base of the thumb. In the Board's opinion, this symptomatology is equivalent to neuralgia resulting in no more than mild incomplete paralysis of the major upper extremity. Therefore, an increased rating under this diagnostic code is not warranted. Increased rating for partial amputations of ring and little fingers of the right hand with scars of the palm. The ratings for multiple finger amputations apply to amputations at the proximal interphalangeal joints or through proximal phalanges. Amputation through middle phalanges will be rated as prescribed for unfavorable ankylosis of the fingers. Amputations at distal joints, or through distal phalanges, other than negligible losses, will be rated as prescribed for favorable ankylosis of the fingers. Diagnostic Code 5151, 38 C.F.R. § 4.71(a)(1999). Unfavorable ankylosis of the ring and little fingers on the major hand warrants a 20 percent evaluation under Diagnostic Code 5219. Under Diagnostic Codes 7803, 7804 and 7805, superficial scars (other than burn scars or disfiguring scars of the head, face, or neck) warrant a 10 percent rating if they are poorly nourished, with repeated ulceration; or tender and painful on objective demonstration; or productive of limitation of function of the body part which it affects. The clinical record establishes that the veteran sustained amputation of the middle phalanges of the 4th and 5th digits of the right (major) hand. This disability is 20 percent disabling under Diagnostic Code 5219. When he underwent VA examination in 1994, there was no evidence of neuroma or other complications as a result of the amputations. However, when he underwent VA examination on May 8, 1999, the amputation stumps, for the first time, were "incredibly sensitive to touch". The Board is of the opinion that the amputations stumps, together, should be awarded an additional 10 percent on the basis that they are equivalent to an objectively tender and painful scar. Accordingly, from May 8, 1999, the combined rating for the partial amputations of the ring and little fingers with tender amputation stumps is 30 percent. As to the palm scars, the recent medical evidence shows that the scars were well healed and non- tender. They did not appear to be irritated, and the examiner indicated that any problems with irritation could be decreased by the use of gloves. The veteran's grip was good, and there is no evidence suggesting that these scars cause limitation on function of an affected part. Accordingly, a separate compensable rating is not warranted for any of the palm scars under any of the diagnostic codes for rating scars. Increased rating for arthritis of the right wrist. The veteran's right wrist disorder has been rated under Diagnostic Codes 5010- 5215 for arthritis of the wrist with limitation of motion. The current evidence shows complaints of pain and swelling, with clinical evidence principally of slight loss of supination. The current 10 percent rating is the maximum rating under Diagnostic Code 5215, limitation of motion of the wrist. A higher rating under Diagnostic Code 5214 contemplates ankylosis with a 30 percent rating for favorable ankylosis of the major extremity, but the veteran does not exhibit ankylosis of the wrist, and is, therefore, not entitled to a higher rating under Diagnostic Code 5214. The Board has considered rating the disability under other diagnostic codes. However, the veteran does not have bone fusion or limitation of pronation (Diagnostic Code 5213); or impairment of the radius with nonunion (Diagnostic Code 5212); or impairment of the ulna with nonunion (Diagnostic Code 5211). Because of the complaints of pain as a result of the right hand disabilities, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in which the Court held that, in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. However, in none of the issues on appeal does the Board find a basis for a higher rating under DeLuca. With respect to the right wrist arthritis, the veteran is currently in receipt of the highest rating for limitation of motion of the wrist, and has been awarded compensation for the symptomatic amputation stumps and the symptomatic right thumb. Therefore, increased ratings under DeLuca are not warranted. (CONTINUED ON NEXT PAGE) ORDER Increased rating for traumatic arthritis of the first carpal and metacarpal joints of the right hand is denied. Prior to May 8, 1998, increased rating for partial amputations of the ring and little fingers of the right hand with scars of the palm is denied. From May 8, 1999, an increased rating to 30 percent for partial amputations of the ring and little fingers of the right hand with scars of the palm is granted, subject to the criteria that govern the payment of monetary awards. Increased rating for arthritis of the right wrist is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals