Citation Nr: 1124492 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 01-00 215 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to a rating in excess of 10 percent for the service-connected post operative trigger finger, left (non-dominant) thumb. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from March 1971 to May 1974. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a March 2000 rating decision by the RO. The claims file is now in the jurisdiction of the RO in Salt Lake City, Utah. In September 2004, the Board denied the claim for an increased rating for the service-connected left thumb disability. In June 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the September 2004 decision and remanded the matter to the Board for further proceedings consistent with the Court's order. In February 2007 and June 2009, the Board remanded the case to the RO for additional development of the record. FINDING OF FACT The service-connected left thumb disability (minor hand) currently is shown to be manifested by arthritis of the CMC joint and some functional loss due to pain; neither unfavorable ankylosis or any level of amputation of the thumb, nor a limitation of motion manifested by a gap of two inches when opposing the thumb to the fingers or a related loss of use of the hand is demonstrated. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left thumb disability (minor hand) have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Code (Code) 5224 (2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.71a including Codes 5224, 5228 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). The VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). The September 2003, March 2007, February 2008 and June 2009 letters provided the Veteran with notice of VA's duties to notify and assist him in the development of his claim consistent with the law and regulations outlined hereinabove. In this regard, the letters informed him of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, and the assistance that VA would provide to obtain information and evidence in support of his claim. He was also given general notice regarding how disability ratings are assigned, disability ratings, and effective dates of awards. Although complete notice was not provided prior to the initial adjudication of the claim, which constitutes a notice timing defect, the matter was readjudicated by a December 2010 Supplemental Statement of the Case (SSOC), which cured the defect. See 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006); see also See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records have been associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained and arranged for VA examinations. Legal Criteria and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2009). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might 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). Under 38 C.F.R. § 4.59, 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 the affected joints. The intent of the rating 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59 (2010). The service-connected left thumb disability is rated 10 percent under Code 5010-5224. See 38 C.F.R. § 4.27 (2010) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Code 5010, arthritis, due to trauma, substantiated by x- ray findings, is rated as degenerative arthritis. Under Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Code 5224 distinguishes between the major (dominant) and minor (non-dominant) arm. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the evidence (e.g., the December 1970 medical history report) show that the Veteran is right handed. Consequently, for rating purposes, the left thumb will be addressed as a digit of the hand of a minor extremity. For the entire period of the appeal, the criteria under Code 5224 provided a 10 percent rating for favorable ankylosis of a minor thumb and a 20 percent rating for unfavorable ankylosis of a minor thumb. See 38 C.F.R. § 4.71a. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). On August 26, 2002, VA enacted Diagnostic Code 5228, which also pertains to limitation of thumb motion. Under this section, a maximum evaluation of 20 percent for both the minor and major thumbs can now be assigned for limitation of motion of the thumb with a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A gap of one to two inches (2.5 to 5.1 cm.) between thumb pad and the fingers, with the thumb attempting to oppose the fingers, warrants a 10 percent evaluation for both the major and minor thumbs. A gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the attempting to oppose the fingers, warrants a noncompensable evaluation. See 38 C.F.R. § 4.71a. In addition, the notes to Diagnostic Codes 5224 through 5227 in 38 C.F.R. § 4.71a were amended to require consideration of "whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand." The new regulations became effective from August 26, 2002. See 67 Fed. Reg. 144, 48784-48787 (July 26, 2002). As the Veteran's claim for an increased rating for the service-connected left thumb disability was pending when the VA regulations pertaining to evaluating ankylosis and limitation of motion of digits of the hands were revised, he is entitled to application of the version of the law which is more favorable to him, although the new criteria are only applicable to the period of time after their effective date. Karnas v. Derwinski, 1 Vet. App. 308 (1990); VAOPGCPREC 3-2000. At a March 2000 VA examination, the Veteran denied having any flare-ups involving his left thumb and indicated that it was sore all of the time. He believed the left thumb was worsening to the point where it would be like his right thumb disability. The X-ray studies of the left thumb revealed no bony abnormality. His left hand strength with opposition was equal in all fingers and relatively strong. The left thumb extension was to 0 degrees and flexion was to 60 degrees. This represented an absence of 30 degrees of flexion of the distal interphalangeal joint. An April 2000 VA treatment record indicated that the Veteran's left thumb seemed to lock in position and was manually released. His grip was markedly diminished due to the absence of most of the use of his thumb. The assessment was that there was a recent decline in thumb function. In August 2000, the Veteran testified at a hearing at the RO regarding the severity of the service-connected left thumb disability. He reported having use of the left hand that was very limited due to thumb pain. A January 2001 clinic record noted that the Veteran had difficulty with many activities due to the bilateral thumb disability. Objectively, there was flattening of the thenar eminence, sluggishness in fine motor strength, and little grip strength when it came to his thumbs. He did have grip strength, but it was from the fingertips touching the base of the palms. He could not offer much resistance to pressure. His thumb sensation was intact. On March 2001 VA examination, the Veteran complained of having left thumb pain with activity. If he worked with his hands a lot during the day, they would become stiff and sore the next day. He left his job as a truck driver because he had a lot of problems with his hands. The left hand demonstrated a full range of motion of all joints. The X-ray studies of the hand were reported to be within normal limits. In January 2007, the Veteran's complaints included those of edematous fingers of both hands. He denied having locking of his joints. His symptoms were noted to be consistent for all his fingers. An April 2007 outpatient record indicated that the Veteran complained of left thenar eminence pain that was not associated with movement. The left thenar eminence was tender to palpation in the mid region, but there was no crepitus or pain with movement. There was also no evidence of edema or erythema. The pain was suspected to be associated with previous surgery, but he also had diffuse degenerative joint disease. A June 2007 VA surgical consultation noted the Veteran's continued complaints of left mid-thenar pain that markedly increased with hand activity and use and was also associated with weather changes. He utilized his left, non-dominant hand more than normal due to his right thumb disability. He had good motion without bow stringing of the left thumb; there were noted to be some trigger thumb release, normal sensation and increased pain. There was no popping or triggering noted, and pain was produced with palpation directly over the flexor tendon sheath. In February 2008, the Veteran reported a two-month history of some numbness and tingling in several fingers that included his left thumb. A June 2008 VA treatment record noted the Veteran's complaints of increasing loss of function and pain in the left thumb. At a January 2009 VA examination, the Veteran complained of increased discomfort in the area of the thenar eminence with any grasping activity of the left hand and activities such as shoveling show or using a hammer, which caused an ache for one or two days. His symptoms were worse in the winter and sometimes woke him at night. He also complained of a weakness of left hand grip. He denied having any flare-ups. The examiner noted that an EMG in December 2008 of the upper extremities was normal. The examination revealed a full range of motion of all joints of the left hand including the thumb without any complaints. There was no locking, swelling or tenderness in any aspect of the left thumb except in a pinpoint area of the thenar eminence. With direct pressure, there were complaints of a sharp, burning sensation; however, there were no complaints of pain with the range of motion of left thumb joints. The grip strength was 5/5 in the left hand, although some discomfort was reported in the thenar eminence with gripping. His sensation was intact in all aspects of the left hand. A March 2007 MRI study was noted to have revealed local mild to moderate degenerative changes of the CMC joint of the left thumb. At an October 2009 VA examination, the Veteran complained of having left thumb locking, pain and diminished range of motion. He could not use various tools due to poor strength of the left thumb. He complained of having numbness of three fingers on the left hand that included the thumb. There were no flare-ups. He could not do occupational functions using the left thumb. On examination, there was no objective evidence of ankylosis. The left thumb had a full range of flexion and extension without locking, swelling or tenderness. There was no gap between the tip of the thumb and the fingers, between the tip of the fingers and the proximal transverse crease of the palm, or between the thumb pad and the finger with the thumb attempting to oppose the fingers. His strength for pushing, pulling and twisting of the left thumb and hand was normal. The range of motion after repetitive motions did not produce pain, fatigue, weakness or lack of endurance. Left thumb abduction was to 70 degrees without pain. The Veteran indicated that he could not use his left hand due to fatigue. He could pull and push, do fine manipulation, and simple grasping using his left hand. He reported being able to drive, but could not use tools or hold objects with the left hand. There was no ankylosis of the left thumb. The examiner opined that the Veteran could perform lifting and manipulating with his left hand and that there was no additional functional loss due to pain, fatigue, weakness or lack of endurance on repetitive use. There was a full range of motion of the left hand including the thumb. On this record, the Board finds that the Veteran is not shown to experience ankylosis of the left thumb given the recorded range of motion results and specific findings of no ankylosis on the VA examination during the course of the appeal. While the VA clinical records dated in late 2000 and early 2001 documented the Veteran's subjective complaints of reduced thumb function, the VA examination in March 2001 noted that he had a full range of motion involving the joints of left hand. Moreover, he was noted to have normal sensation and full strength. Significantly, despite the delay in again having the Veteran examined, the subsequent examinations by VA do not show findings that would support the assignment of a rating higher than 10 percent in this case. Beginning on and after August 26, 2002, the evidence does not show a limitation of left thumb motion manifested by a gap of more than 2 inches between the thumb pad and the fingers, when opposing the thumb to the fingers. While the Veteran's complaints of locking, pain and limited motion were noted at the time of the October 2009 VA examination, there was no gap whatsoever or other limitation of motion, locking or pain to confirm his assertions of functional loss due to pain, loss of strength or fatigue. Significantly, the Veteran also denied having flare ups. The note added to Code 5224 requires consideration of whether the disability warrants evaluation as an amputation and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. However, given the findings of a full range of motion, normal sensation and strength, and normal maneuvering ability and fine manipulation skills, the alternative rating options suggested by the note to Code 5224 are not for consideration in this case. Certainly, findings approaching or even suggestive of loss of use of the hand are not shown. The Board also notes that, while the Veteran experienced some symptoms involving other fingers on the left hand, they are not shown to be caused by the service-connected left thumb disability. Significantly, he has been granted service connection and assigned a separate 10 percent rating for left carpal tunnel syndrome. Moreover, under the former and revised criteria, the Board finds that a higher rating is not assignable on the basis of functional loss due to pain addressed by 38 C.F.R. § 4.40 or functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint addressed by 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). While the service-connected left thumb disability is now rated on the basis of arthritis of the CMC joint and painful motion, the Veteran is not shown to be experiencing a functional loss that would equate with unfavorable anklyosis or any level of amputation of the left thumb or loss of use of the hand. There is no showing of an additional limitation of motion or functional loss to support the assignment of a rating higher than 10 percent in accordance with the established criteria. The most recent examination showed that the Veteran had full motion of the left thumb with normal strength for pushing, pulling and twisting. Hence, on this record, the service-connected left thumb disability is not shown to have warranted a rating higher than 10 percent at any time during the period of the appeal. The Board has also considered whether extraschedular evaluation is appropriate in this case. 38 C.F.R. § 3.321(a), (b) (2010). The Board also observes that, under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether the application an extraschedular rating is for application. However, there is no showing of an exceptional or unusual disability picture that would obviate the application of the regular rating criteria in this case. The level of impairment caused by the service-connected left thumb disability is found to be adequately addressed by established rating criteria. Thus, referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not required in this case. ORDER An increased rating in excess of 10 percent for the service-connected left thumb disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs