Citation Nr: 1326959 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-19 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to disability rating higher than 20 percent for the service-connected chronic low back strain. 2. Entitlement to an increased disability rating for the service-connected posttraumatic arthritis, first metacarpophalangeal (MCP) joint of the right thumb, evaluated as 10 percent disabling prior to November 13, 2009 and 20 percent disabling from January 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1999 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts in September 2005 and October 2006. A January 2012 rating decision by the Appeals Management Center (AMC) increased the ratings for the back and right thumb to 20 percent. The Board remanded this case to the RO via the (AMC) in September 2010 and December 2012. The additional development required by the Board's most recent remand has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AMC, in the January 2012 rating decision awarding increased and additional service-connected ratings for various disabilities, erroneously included a bilateral factor computation pursuant to 38 C.F.R. § 4.26. However, that regulation applies only where a partial disability exists of both arms. Here, all of the Veteran's arm disabilities involve the right arm. Thus, section 4.26 does not apply and the combined evaluation of 80 percent is clearly incorrect. 38 C.F.R. § 4.25. Thus, the matter of correcting the combined evaluation/bilateral factor error in the January 2012 rating is REFERRED to the RO for appropriate action. Additionally, the Board notes the RO is presently adjudicating a claim for a total disability rating based on individual unemployability due to multiple service connected disabilities. Such matter is REFERRED to the RO for continued processing. FINDINGS OF FACT 1. The Veteran's low back strain is manifested by flexion to 50 degrees or better prior to onset of pain and without associated neurological symptoms. 2. The Veteran is right-handed. 3. After resolving all doubt in the Veteran's favor, the Veteran's right thumb disability is manifested by a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers during the course of the appeal; his degree functional impairment does not approximate elective amputation of the thumb. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for chronic low back strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 2. From June 7, 2006, the criteria for a rating of 20 percent for posttraumatic arthritis, first MCP joint of the right thumb are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5003, 5224, 5228 (2012). 3. The criteria for a rating higher than 20 percent for posttraumatic arthritis, first MCP joint of the right thumb are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5224, 5228 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In letters dated in June 2005 and September 2010, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The 2010 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in May 2013. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has not pointed to any prejudice resulting from the timing or content of notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA has also made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the claims file includes service treatment records and relevant post-service treatment records and examination reports; the Veteran has not otherwise identified existing records that should be obtained. The Veteran has been afforded appropriate VA examinations in regard to the claims for higher rating, most recently in October 2010 (spine) and December 2011 (hand/fingers); the Veteran has not asserted, and the evidence of record does not suggest, that either disability has changed significantly since those examinations. The Veteran has been advised of his right to a hearing before the RO's Decision Review Officer and/or before the Board, but he has not requested such a hearing. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Applicable Legal Principles Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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 provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability on appeal. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Low back disability Under the current rating criteria, effective from September 26, 2003, lumbosacral spine disorders other than intervertebral disc syndrome (IVDS) are evaluated under the General Rating Formula for Rating Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242 (2012). IVDS is evaluated either under the general formula or based on incapacitating episodes, whichever method results in the higher evaluation. The Veteran in this case is not shown to have IVDS, so those rating criteria are not applicable. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A rating of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in the regulation. Fourth, each ROM should be rounded to the nearest 5 degrees. Fifth, for VA compensation purposes "unfavorable ankylosis" is a condition in which the entire cervical spine, entire thoracolumbar spine or entire spine is fixed in extension or in flexion and the ankylosis results in one or more of the following: difficulty walking because of the limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or, neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Veteran's claim for increased rating was received in March 2005. There is no medical evidence of record regarding symptoms during the period March 2004 to June 2006. The Veteran had a VA examination of the spine in June 2006 during which he complained of pain on a daily basis, currently 4/10 in severity. The Veteran stated he was employed as a municipal police officer and that pain could increase to 8-9/10 in severity if he had been required to stay on his feet for a long period. Increased pain was also associated with lifting heavy objects. Back pain was treated with over-the-counter medication, hot compresses and massage. The Veteran denied history of numbness or weakness or complaints relating to the bowel or bladder. The Veteran denied using any assistive devices or back brace. He stated he could stand and/or walk for 6-8 hours without immediate discomfort; resultant discomfort would begin after cessation of the activity. The Veteran reported being able to perform all activities of daily living (ADLs) and being currently employed. Examination showed the Veteran to walk with a symmetric gait. The pelves were level in bilateral stance. The Veteran had normal lordosis, which reversed with forward flexion to 80 degrees. Combined ROM was to 250 degrees with some increased discomfort at the upper end of the lordosis during motion. Straight leg raising (SLR) was positive at 30 degrees on the left and at 25 degrees on the right, with positive Lasegue's test. Repetitive motion caused no change in ROM or degree of discomfort. Neurologic examination showed deep tendon reflexes (DTRs) to be positive and symmetric; motor strength and sensory was intact. The examiner's diagnosis was chronic muscular strain of the lower back. The Veteran presented to the VA primary care clinic (PCC) in September 2006 complaining of persistent low back pain for the past six months; on approximately 3 days per week such pain would prevent him from sleeping. He denied any particular activity or position associated with this aggravation in pain. The increased pain was treated with over-the-counter medication. The Veteran denied any weakness or loss of sensitivity of the bowel or bladder. Clinical examination of the back showed no costovertebral angle (CVA) tenderness and no spinal or paraspinal tenderness. SLR was positive at 40 degrees, and neurological examination was grossly normal. The clinical impression was likely arthrosis, possible disc herniation but with no evidence of nerve root or spinal cord compression. The Veteran had a VA kinesiotherapy consult in November 2006 to follow-up his increased low back pain. The Veteran reported current pain level of 8/10. The Veteran's problem list consisted of weight gain, poor sleep, prolonged standing, pain fluctuation, occasional sharp pain and stair negotiation. The Veteran was noted to be independent in all ADLs. He was provided a regimen of exercises to improve his strength and flexibility, and he was advised on how to properly negotiate a flight of stairs. VA PCC notes in November 2006 and June 2007 state the Veteran's low back pain had improved after he started physical therapy. During the period from June 2007 to October 2010 the Veteran had extensive treatment at the VA outpatient and surgical clinics for various disorders, although these treatment notes are silent in regard to any complaint of low back pain. The Veteran had a VA examination of the spine in October 2010, performed by a physician who reviewed the claims file. The Veteran complained that his back pain had increased in severity since the last VA examination and was now an intermittent severe, sharp pain with strenuous activities. The pain was worse with bending, lifting or carrying, as he was required to do in his part-time job as a long-distance bus driver. There was no back pain associated with his sedentary job as a security guard, which involved sitting in front of a video monitor. Treatment was with ibuprofen (six per week) and heating pads, which reduced the pain by 60-70 percent. The Veteran denied radiating pain or weakness/numbness to the legs; he also denied bowel or bladder symptoms. The Veteran endorsed sleep dysfunction, partially due to back pain and partially due to his work schedule as a night security guard. He admitted to having been involved in two motor vehicle accidents (MVAs), one in January 2008 and the other in February 2010. Review of systems revealed no neurological complaints. The Veteran denied spasm but endorsed a history of fatigue, weakness, decreased motion, stiffness, and pain. The pain was characterized as intermittent, moderate-to-sharp, 1-6 days per week and 1-2 days per occurrence. The pain was not associated with radiation. The Veteran denied incapacitating episodes and denied assistive devices; he stated he could walk a quarter mile. Examination showed the Veteran to have normal gait and posture. The spine had normal curvature without lordosis, scoliosis or ankylosis. The thoracolumbar spinals did not show objective evidence of spasm or weakness but showed atrophy on the right and guarding, tenderness and pain with motion on the left and right; these symptoms were not severe enough to cause abnormal gait or abnormal spinal contour. ROM of the spine was flexion to 90 degrees with pain at 50 degrees; combined ROM was to 240 degrees. There was objective evidence of pain with motion and with repetitive motion, but repetitive motion did not cause additional limitation of function. Neurological examination was grossly normal for sensory, reflexes and motor function. X-ray showed no significant abnormality. The Veteran was noted to be employed fulltime as a special police officer; he reported having lost two weeks of work during the past year. The examiner diagnosed low back strain. Occupational impairment consisted of pain, weakness, fatigue, and difficulty with lifting, carrying and reaching. In terms of ADLs there was no impairment of feeding or grooming; mild impairment of bathing, dressing and toileting; moderate impairment of traveling and shopping; and, severe impairment of outdoor chores. Exercise, recreation and sports were prevented. The examiner noted that the Veteran's low back pain and limitation of function appeared to be related to extended use, since they were manifested when the Veteran did his part-time job as bus driver but not when he did his sedentary job as security guard. Also, the Veteran was able to drive weekly long-distance bus trips even after performing overnight security shifts. The examiner stated the Veteran's current X-ray of the back was, if not better, than at least not worse than the prior study in 2006. Review of the file shows that during the period under review the Veteran's thoracolumbar flexion has been to 50 degrees or better prior to onset of pain, which is squarely within the criteria for a rating of 20 percent under the General Rating Formula even with due consideration of the DeLuca factors. A higher rating of 40 percent is not warranted absent forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; however, the Veteran's disability demonstrably does not approximate either of these criteria. In addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners. However, the lay evidence does not show a disability picture more closely approximating the criteria for a higher schedular rating. The Veteran's complaints of severe low back pain and associated limitation of function have been accepted by various medical providers and examiners, but his the subjective symptoms and objective findings do not show a degree of limitation of function, even during flare-up, that approximates the disability level warranting a higher schedular rating. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his low back disability. In sum, the Board has found the criteria for a schedular rating higher than 20 percent are not shown under the applicable rating criteria. Further, because the criteria for rating higher than 20 percent were not shown during any distinct period on appeal, "staged" rating is not warranted. Hart, 21 Vet. App. 505. Additionally, the Veteran does not have a disc disorder associated with the service-connected low back disability and does not have neurological symptoms that would warrant consideration for separate rating. As a final matter, the Board notes that the Appeals Management Center (AMC) inexplicably assigned an effective date of December 10, 2000 for the increased 20 percent rating, in essence ignoring the finality of the July 2001 rating decision. See 38 C.F.R. § 3.104 (a decision of other agency of original jurisdiction shall be final and binding on all field offices of VA). The AMC's reasoning was that the Veteran had full range of motion and the findings on the 2001 examination were the same as currently. Confusingly, further discussion in that decision tends to suggest that the AMC actually intended to deny a higher rating. In the May 2013 supplemental statement of the case, the AMC indicated that a statement mentioning the historical effective date of the 10 percent rating of December 2000 placed the entire period on appeal. Such interpretation of that statement is erroneous, and the pertinent period on appeal was based on the March 2005 date of claim. To the extent the AMC erroneously extended that period, the Board is not bound by this erroneous conclusion, and considered only the period based on the Veteran's March 2005 date of claim in rendering this decision. See McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009) ("[T]he Board, as the final trier of fact, is not constrained by favorable determinations below."). In any event, nothing in the record suggests the Veteran's low back disability has ever warranted an evaluation in excess of 20 percent. In summary, the preponderance of the probative evidence is against the claim for a rating in excess of 20 percent for the Veteran's low back strain. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Right thumb disability Disabilities of the thumb are rated under 38 C.F.R. § 4.71a (schedule of ratings - musculoskeletal system). Degenerative arthritis is rated under Diagnostic Code 5003, which directs that the rating will be based on limitation of motion under the appropriate diagnostic code for the joint or joints involved, but that a minimum of 10 percent is to be assigned if the limitation of motion is noncompensable. Limitation of motion of the thumb is rated under the criteria of Diagnostic Code 5228, as follows. A noncompensable rating is warranted for a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A rating of 10 percent is warranted for a gap of one-to-two inches (2.5-to-5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A rating of 20 percent is assigned for a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The same criteria apply for the dominant and non-dominant hand. Also applicable is Diagnostic Code 5224 (ankylosis of the thumb). Under this code, a rating of 10 percent is awarded for favorable ankylosis and a rating of 20 percent is awarded for unfavorable ankylosis. The same criteria apply for the dominant and non-dominant hand. A note to Diagnostic Code 5224 states to also consider whether evaluation of amputation is warranted and whether additional evaluation is warranted for resulting limitation of motion or other digits or interference with overall functioning of the hand. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Amputation of the thumb is rated under the criteria of Diagnostic Code 5152, which distinguishes between the major (dominant) and minor (non-dominant) hand. The Veteran is right-handed, so the criteria for the major hand apply, as follows. A rating of 20 percent is warranted for amputation at the distal joint or through the distal phalanx. A rating of 30 percent is warranted for amputation at the MCP joint or through the proximal phalanx. A rating of 40 percent is warranted for amputation with metacarpal resection. The Board notes that the Veteran did not initially claim an increased rating for his right thumb disability. Rather, the VA spine examiner including findings pertinent to his right thumb disability in the examination in June 2008 and the RO readjudicated that issue accordingly. There is no medical evidence of record regarding symptoms during the period June 2005 to June 2006. The Board further notes that during the course of this appeal, the AMC awarded a temporary 100 percent rating based on surgical convalescence from November 13, 2009 to January 1, 2010. Thus, the pertinent period for consideration is during the period of the claim prior to November 13, 2009 and from January 1, 2010. In this regard, the Veteran's right thumb disability is rated as 10 percent disabling prior to November 13, 2009 and 20 percent disabling from January 1, 2010. Additionally, the AMC awarded a separate service-connected rating for surgical removal of the trapezium interval of the right wrist, assigning a 40 percent evaluation as analogous to ankylosis of his four fingers not including the thumb (although the examination cited as the basis of this evaluation does not appear to address the fingers). A separate 10 percent rating for the resultant scar was also assigned. The Veteran has not disagreed with this rating and the manifestations of this disability are not for consideration in evaluating the Veteran's thumb disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran had a VA examination of the thumb in June 2006 during which he stated the thumb was generally painless but was symptomatic with weather changes, becoming sore and cramping in the summer and actually becoming "stuck" in the first metacarpal phalangeal (MCP) joint in the winter (at which time he would have to reach over with the other hand and reduce the thumb back). The usual position for such occurrences was hyperextension of the first MCP joint; this had happened six or seven times since December 2000. Such episodes were accompanied by slight increase in local pain for a day or two but then return to baseline of no pain. The Veteran reported pain as high as 6-8/10 during rainy weather; such episodes of pain were treated with over-the-counter medications. Examination showed a well-healed scar over the dorsal aspect of the first MCP joint; the scar was not clinically significant. The MCP was somewhat tender to compression. The carpal-metacarpal (CMC) joint was reduced in motion, having abduction to only 20 degrees. Flexion of the MCP joint was to 80 degrees, with hyperextension to 70 degrees. Although the joint was tender to compression there were no palpable osteophytes. The interphalangeal (IP) joint of the right thumb extended to 0 degrees with further flexion to 60 degrees. X-ray showed degenerative arthritis of the first MCP joint as well as deformity of the first metacarpal that was compatible with old fractures. The examiner diagnosed posttraumatic arthritis of the first MCP, with reduced motion. The Veteran presented to the VA urgent care clinic in November 2007 complaining of pain in the right thumb for six weeks after suffering a fall. The Veteran complained of "cracking" when flexing the thumb; he denied resting thumb pain. Clinical examination showed the right hand to be neurovascularly intact and without any local swelling, tenderness, erythema, eccymosis, warmth or deformity of the thumb; muscular strength was 5/5. The Veteran nonetheless complained of proximal tenderness with full flexion. X-ray of the right hand was negative for fracture or dislocation. The clinical impression was possible tendon or ligament strain. Subsequently in November 2007 the Veteran presented to the VA occupational therapy clinic complaining of right thumb pain of 7.5/10 severity, increasing to 10/10 on a cold day. The Veteran was issued a right thumb splint to assist him in performing ADLs. The Veteran presented to the VA orthopedics/surgery clinic in December 2007 complaining of right thumb pain for three months status post fall that had not responded to conservative management. Clinical examination showed pain to palpation over the thenar eminence but the thumb was stable to varus and valgus stress at the MP/IP and had full ROM. The clinician agreed to the Veteran's request for magnetic resonance imaging (MRI) of the thumb, with follow-up at the VA hand clinic. A VA orthopedic/surgery clinic note in February 2008 states the Veteran had a recent MRI of the right thumb that showed no evidence of fracture or abnormality of the ligaments or tendons surrounding the thumb; however, MRI showed degenerative arthropathy of the CMC joint and possibly the MCP joint as well. There was also a blooming metallic artifact within the soft tissues of the first metacarpal. Hand X-rays also indicated arthritis at the CMC joint. Clinical examination of the right thumb was significant only for tenderness to palpation of the CMC joint. The impression was right first CMC arthritis. The Veteran received an injection of Kenalog and Bupivacaine into the area of the CMC joint. The Veteran presented to the VA PCC in March 2008 for evaluation of his right thumb pain. He complained that recent steroid injection into the MCP joint had not helped to reduce the pain. The clinician indicated follow-up to be performed at the VA hand clinic. The Veteran contacted the VA orthopedic/surgery clinic in May 2008 to report having had good pain relief for the past few months. He requested another injection, which was provided. Examination at the time showed the right thumb CMC to have full ROM but tenderness to palpation; there was also some skin discoloration from the previous injection. The Veteran was advised to continue wearing his splint at night, and a sleeve as required. The Veteran had a follow-up appointment at the VA orthopedic/surgery clinic in June 2008 in which he denied current pain or complaints. Examination of the thumb showed some pigment loss over the CMC in the area of the previous injection. There was baseline laxity in the CMC and the IP joints of both thumbs. There was no pain with CMC loading or palpation; ROM of the thumbs was equal bilaterally. There was no swelling, but tenderness to palpation over the CMC joint was noted. The clinician noted that pain was worse in the winter months and that surgery should be considered as a last resort, when pain was constant and unrelieved by steroids or conservative modalities. A VA orthopedic/surgery note in August 2008 states the Veteran complained of frequent pain only partially relieved by nonsteroidal medication. He did not currently wear a splint. Previous steroid injection in May had relieved his symptoms for a few weeks. Clinical examination of the right thumb showed full ROM although with CMC grind, reducible subluxation of the phalanx and relief with distraction of the CMC joint. The CMC joint was tender to palpation. Treatment plan was to continue nonsteroidal medication for the time being, and to consider surgical intervention, including possible fusion, at a later date. VA X-ray of the thumb in August 2008 showed an old healed fracture at the base of the first metacarpal, with minimal degenerative changes at the first CMC articulation. There was no hardware identified and no acute fracture or dislocation. Allowing for technical differences there was no significant interval change since the prior study in November 2007. In September 2008 the Veteran complained of right thumb pain currently 7/10, sometimes as high as 10/10 or as low as 2/10. The Veteran presented to the VA orthopedic/surgery clinic in October 2008 requesting CMC fusion. The Veteran was noted to have pain that was severe and activity-limiting. Clinical observations were as before. The physician administered a steroid injection and obtained the Veteran's consent to fusion surgery at a later date. The Veteran presented to the VA PCC in March 2009 for evaluation of right thumb pain. He stated he had not had fusion surgery as previously scheduled because he was starting a new job and could not afford a lengthy convalescence, but he was now willing to consider surgery because of recurring pain at 7/10 level. The Veteran presented to the VA orthopedic/surgery clinic in August 2009 requesting CMC fusion due to continued pain that had not improved with prior treatments. Clinical examination was as before (no swelling, full ROM and tenderness to palpation of the CMC joint). The Veteran was scheduled for fusion surgery, which was performed on November 13, 2009. VA X-ray of the right thumb in August 2009 showed an old healed fracture at the base of the first metacarpal, with a tiny calcification probably representing heterotopic calcification from the old trauma. There was no other abnormality. Allowing for technical differences, there had been no significant interval change since the previous study. The Veteran is rated at 100 percent disabled from November 13, 2009 to January 1, 2010, for post-surgical convalescence from right thumb surgery, with a 20 percent rating assigned as of January 1, 2010. The Veteran had post-surgical follow-up at the VA occupational therapy clinic in January 2010, 7.5 weeks after surgery. The Veteran reported his ROM was improving and pain was decreasing to a current level of 3-4/10 with motion and no pain at rest. The Veteran presented to the VA PCC in May 2010 for follow-up of various problems. In regard to the right thumb, status post CMC arthroplasty, the Veteran reported his grip strength was 85 percent of his best; he was able to do push-ups but felt insecure of his grip when lifting weights. The Veteran had a VA X-ray of the right thumb in October 2010 due to his complaint of weakness in the right hand and hypersensitivity in the surgical scar area. The study showed there had been an interval removal of the trapezium; there was also a small residual calcific body proximal to the base of the second metacarpal. The joint spaces and bony mineralization was preserved and there were no acute fractures or dislocations. The Veteran had a VA examination of the hands and fingers in December 2011, performed by an examiner who reviewed the claims file and noted the Veteran to be right-hand dominant. The Veteran complained that despite surgery in 2009 he continued to have progressively worsening right thumb pain. The pain was now constant and exacerbated by ROM. Flare-ups were associated with cold weather and repetitive ROM and lasted 2-3 hours. The Veteran endorsed occasionally using a thumb brace for lifting activities. Examination showed a gap of 1-2 inches (2.5-5.1 cm.) between the thumb pad and the fingers, with pain beginning at the extreme of motion; repetitive use increased limitation of ROM to a gap of more than 2 inches (more than 5.1 cm.). In addition to reduced motion, repetitive use resulted in increased weakness, fatigability, pain, deformity and atrophy of the thumb. Muscle strength testing showed grip strength of 3/5 in the right hand versus 5/5 in the left hand. The thumb was not ankylosed. There was no impairment of motion or function of the other fingers of the right hand, to include on repetitive use. The Veteran had surgical scars on the right thumb but these were not clinically significant. X-ray confirmed degenerative arthritis in the right hand, but not of multiple joints; current X-ray also showed interval removal of the trapezium. The examiner diagnosed right thumb traumatic arthritis and residuals of right thumb surgical joint arthroplasty. The examiner stated an opinion that the Veteran's disability was not to a degree that he would be equally well served by elective amputation of the thumb with suitable prosthesis. The examiner stated that the Veteran's flare-ups would result in functional loss of decreased right hand strength (for pushing, pulling and twisting) and decreased right hand dexterity (for twisting, probing, writing, touching and expression). Review of the evidence shows the Veteran's right thumb disability is manifested by a gap between thumb pad and fingers that equates to a 10 percent rating under Diagnostic Code 5228 when the Veteran is at rest, but equates to a 20 percent rating on repetitive use. Accordingly, the currently-assigned 20 percent rating provides appropriate compensation for limitation of function even with consideration of the DeLuca factors. The Board notes that the 2006 VA examination provided range of motion in degrees for the thumb, but did not provide information concerning the extent of the gap between the thumb and the fingers. Thus, based upon the complaints noted prior to his surgery and thereafter, as well as the lack of information pertinent to the rating criteria until the current examination, the Board will resolve all doubt and assign a 20 percent rating from June 7, 2006, the date of the VA examination that served as the informal claim for increase for the right thumb disability. For the reasons set forth above, the preponderance of the evidence is against a rating in excess of 20 percent at any time during the course of the appeal. Other considerations The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule. Indeed, the manifestations of the service-connected low back strain and arthritis of the right thumb are specifically contemplated by the schedular criteria as expanded by DeLuca. Thus, the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. The Board notes the RO is currently in the process of adjudicating a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. The Veteran submitted a formal application for TDIU in November 2012, citing unemployability due to multiple service-connected disabilities, not just those on appeal. To date, a final decision on that matter has not yet been made. The Board is cognizant of Rice v. Shinseki, 22 Vet. App. 447 (2009). However, there is no indication in the existing record that service-connected low back and right thumb disabilities on appeal render the Veteran unemployable. The Board accordingly finds that a claim for TDIU based solely on the disabilities presently on appeal is not raised by the record. The Board intimates no opinion as to the claim for TDIU based on the combined effects of his multiple service connected disabilities that is presently pending at the RO. Such matter has been referred to the RO for continued action. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for an increased rating for his back disability and in excess of 20 percent for his right thumb disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a rating higher than 20 percent for low back strain is denied. From June 7, 2006, entitlement to an evaluation of 20 percent for posttraumatic arthritis of the MCP joint, right thumb is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Entitlement to a rating higher than 20 percent for posttraumatic arthritis of the MCP joint, right thumb is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs