Citation Nr: 1339071 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-13 723A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a right ankle disorder. 2. Whether new and material evidence has been received to reopen service connection for a left ankle disorder. 3. Entitlement to an increased disability evaluation for the Veteran's service-connected thumb disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. New evidence has been added to the record since the most-recent supplemental statement of the case (SSOC) in May 2011, and has been considered pursuant to the representative's November 2013 waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 19.31, 20.1304(c) (2013). With regard to the Veteran's claim for an increased rating for a thumb disorder, the Board has considered addressing in the decision below two additional issues - a claim to a total rating based on individual unemployability (TDIU) which the Veteran asserts is warranted based on the disorder; and a claim to a temporary total disability rating which the Veteran asserted was warranted based on March 2007 right thumb surgery. 38 C.F.R. §§ 4.17, 4.30. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue will not be addressed here because the RO denied the claim to a TDIU in a February 2009 rating decision, which the Veteran did not appeal to the Board. 38 C.F.R. § 20.200. Moreover, the issue regarding a temporary total rating is not addressed here because, in March 2010, the RO granted a temporary total rating for a period exceeding three months. 38 C.F.R. § 4.30. FINDINGS OF FACT 1. In an October 2004 decision, the Board denied the Veteran's claim to service connection for a right ankle disability. The Veteran did not appeal. 2. The evidence received since October 2004 does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right ankle disability, or raise a reasonable possibility of substantiating the claim. 3. In an October 2004 decision, the Board denied the Veteran's claim to service connection for a left ankle disability. The Veteran did not appeal. 4. The evidence received since October 2004 does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disability, or raise a reasonable possibility of substantiating the claim. 5. The evidence of record indicates that, during the appeal period, the Veteran has had painful motion in his right hand which effectively renders him unable to oppose his right thumb to the fingers on his right hand. CONCLUSIONS OF LAW 1. The October 2004 Board decision denying service connection for a right ankle disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2004). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right ankle disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The October 2004 Board decision denying service connection for a left ankle disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2004). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a left ankle disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 5. From January 8, 2007, the criteria for a 20 percent rating, but not higher, for the Veteran's service-connected right thumb disability, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5152, 5224, 5228 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper notice applies to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). In this matter, the RO provided the Veteran with a notification letter in January 2008. The letter informed the Veteran of the evidence and information necessary to substantiate a claim to reopen service connection, a claim for service connection, and a claim for increased rating. The letter informed the Veteran regarding the previous denial of his claims to service connection, and the letter informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Moreover, the Veteran was provided with full notification prior to the April 2008 rating decision that decided his claims. Mayfield v. Nicholson, 19 Vet.App. 103 (2005). In sum, VA has satisfied its duty to notify. With regard to VA's duty to assist, the record indicates that the RO requested from the Veteran information regarding medical evidence pertaining to his claims. The record shows that the RO included in the claims file the Veteran's service treatment records (STRs), relevant private and VA treatment records and reports, and relevant medical information from the Social Security Administration (SSA). The Veteran underwent VA compensation examinations into his claim in January 2008, February 2010, February 2011, and July 2011. Reports of the examinations are of record. In the reports, the VA examiners detailed the nature and severity of the Veteran's ankle and right thumb disorders, and entered findings based on the Veteran's lay statements, on the evidence of record, and on the examinations of the Veteran. The findings are supported by data and reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). When considered together, along with the detailed private, SSA, and VA treatment records in the claims file, the VA examination reports are sufficient to enable the Board in deciding the Veteran's claims to reopen and his claims to an increased rating. In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. The Claims to Reopen Claims of Service Connection The Veteran claims that he incurred a bilateral ankle disorder during service. His claims were originally denied in a February 2002 rating decision. The Veteran appealed the decision to the Board which denied the claims in an October 2004 decision. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to chronic diseases found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.309(a), arthritis is considered a chronic disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 38 C.F.R. § 3.159. Although the Veteran appealed the February 2002 rating decision that denied his original claims to service connection for ankle disorders, he did not appeal the Board's October 2004 decision which denied his claims. 38 U.S.C.A. §§ 7104, 7266. The Board decision is therefore a prior final denial of the Veteran's claims. In that decision, the Board considered the Veteran's STRs, which indicate complaints related to bilateral ankle pain. The Board considered the December 1982 separation examination which did not note an ankle disorder, and which noted normal lower extremities on evaluation. The Board considered a March 2004 VA compensation examination report - which was negative for a right ankle disorder, but which did evidence a diagnosis of a left ankle disorder. Moreover, the Board considered the March 2004 examiner's opinion that the left ankle disorder during service did not persist in the 20 years following his service. Board decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 20.1100. The Veteran had the right to appeal the Board's October 2004 decision to the U.S. Court of Appeals for Veterans Claims but did not do so. 38 U.S.C.A. § 7266. As such, that decision is final and the Board's current analysis is constrained by those conclusions. No further communication regarding the claims of entitlement to service connection for ankle disorders was received until January 2008, when VA received the Veteran's application to reopen service connection for ankle disorders. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Since the October 2004 Board decision, additional evidence has been submitted into the record, to include, the Veteran's general claim that he incurred chronic ankle disorders during service, VA and private medical evidence, and evidence from SSA, noting his complaints of ankle pain, and a February 2010 VA compensation examination report and opinion which notes that the Veteran has no right ankle disorder, and that he has a chronic left ankle sprain which is likely unrelated to service. The examiner based the negative opinion on the evidence of record which indicated that the Veteran did not have an ankle disorder for approximately 20 years following service. The Board concludes that the evidence received since the prior final denial in October 2004 is new in that it was not previously of record. However, the Board finds none of the new evidence to be material evidence. With regard to the right ankle, the evidence continues to indicate, as it did in October 2004, that the Veteran does not have a current right ankle disorder. The March 2004 and February 2010 examiners came to the same conclusion based on their examination of the Veteran, based on their reviews of the claims file, and based on the Veteran's own statements. The Board moreover notes that other evidence of record buttresses the February 2010 examiner's finding of no right ankle disorder. VA treatment records dated between 2005 and 2012 consistently note complaints of left ankle pain, but not of right ankle pain, the exception being an October 2009 treatment record noting "bilateral ankle pain." And in a January 2011 statement of record, the Veteran expressed an interest in pursuing his claim for a left ankle disorder while omitting mention of the right ankle. As in October 2004, the record continues to indicate that the Veteran has no right ankle disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." With regard to the left ankle, the evidence before and since the October 2004 Board decision shows a disability. However, the new evidence merely shows what the evidence showed in October 2004 - that the Veteran had in-service complaints of a left ankle disorder, that he did not experience problems with a left ankle disorder for approximately 20 years following service, that he began experiencing a chronic left ankle sprain in the mid 2000s which was again noted in February 2010, and that he has asserted a service connection claim for the current disorder. The nature of the evidence of record today mirrors that of record in October 2004. In sum, none of the new evidence relates to an unestablished fact necessary to substantiate the Veteran's claims - i.e., none of the new evidence indicates either that the Veteran has a current right ankle disorder, or that his current left ankle disorder is related to his complaints of ankle pain during service that ended in 1983. The new evidence - medical and lay evidence - is effectively the same evidence the Board considered in October 2004. Hence, it cannot be stated that the newly received evidence raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, the claims to reopen service connection for ankle disorders are denied. III. The Claim for Increased Rating The Veteran fractured his right thumb during active service in 1979. In September 2001, he filed an original claim of service connection for residuals of the injury. In a May 2004 rating decision, the RO granted service connection for a right thumb disability. The disorder was rated as 10 percent disabled effective the date of the Veteran's claim to service connection on September 11, 2001. As indicated earlier, a temporary total rating of 100 percent was assigned for convalescence related to thumb surgery, effective the date of surgery on March 17, 2007 until July 1, 2007, when the 10 percent rating was again assigned. In January 2008, the Veteran filed a claim for increased rating. In the April 2008 rating decision on appeal, the RO continued the assigned rating of 10 percent. In this matter, the Board will consider whether a higher rating has been warranted from January 8, 2007 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA 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). The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Indeed, in this matter, the pain and limitation associated with the disorder at issue, a thumb disability, are observable matters upon which the Veteran is competent to testify. See Layno, supra. Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012). Where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2013). Disability of the thumb may be rated under Diagnostic Code (DC) 5152, DC 5224, or DC 5228 of 38 C.F.R. § 4.71a. Evaluations of 10, 20, 30, and 40 percent are authorized for disorders such as amputation, favorable ankylosis, unfavorable ankylosis, and limitation of motion. As the Veteran's disorder has been rated as 10 percent disabled during the length of the appeal period, the Board will limit its analysis of the rating criteria to whether a 20, 30, or 40 percent rating would be authorized under these DCs. See also 38 C.F.R. § 4.71a, DCs 5003, 5010 (2013) (a 10 percent rating may be assigned for traumatic arthritis of a major joint where limitation of motion of the joint is noncompensable under the relevant rating code). In the event a thumb is amputated, or is to be rated as amputated, DC 5152 provides (for the major hand) a 40 percent rating with a metacarpal resection, a 30 percent rating with a resection at metacarpophalangeal joint or through proximal phalanx, and a 20 percent rating with a resection at the distal joint or through the distal phalanx. 38 C.F.R. § 4.71a, DC 5152. The evidence detailed below will demonstrate that the Veteran's service-connected thumb disability is on his major hand, and will demonstrate that that thumb has not been amputated. Nevertheless, for reasons explained below, an amputation rating of 30 percent may be warranted here if a certain degree of ankylosis is found in the Veteran's right thumb. Ankylosis in the thumb is evaluated under DC 5224, which distinguishes between favorable and unfavorable ankylosis. Ankylosis is the "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary). A 20 percent rating is warranted for findings of unfavorable ankylosis. Under DC 5224, it is provided that, in cases involving certain degrees of unfavorable ankylosis, rating a thumb disorder as amputated may be warranted. The code provides the following guidance when determining whether a thumb should be deemed unfavorably ankylosed, and/or should be rated as effectively amputated due to the severity of the ankylosis: (i) If both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation at metacarpophalangeal joint or through proximal phalanx; (ii) If both the carpometacarpal and interphalangeal joints are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is 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, evaluate as unfavorable ankylosis; (iv) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as favorable ankylosis. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand. Under DC 5228, limitation of motion of the thumb is evaluated. A 20 percent rating is warranted for findings of limited thumb motion of a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. The Board further notes that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of 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. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In sum, the relevant DCs authorize ratings of 10, 20, 30, and 40 percent here. The Veteran has already been rated as 10 percent disabled during the appeal period, so the Board will not address the criteria pertaining to 10 percent evaluations. Moreover, a 40 percent rating is warranted under DC 5152 for actual metacarpal resection, which is not present here. So the Board will not further address the criteria for a 40 percent evaluation. The question before the Board is whether a 20 percent or 30 percent rating would be warranted at any time during the appeal period - i.e., a 20 percent rating for unfavorable ankylosis or for an inability to oppose the thumb to the fingers; or a 30 percent rating for ankylosed carpometacarpal and interphalangeal joints, in extension or full flexion, or where there is rotation or angulation of a bone. Evidence The evidence of record consists of private and VA treatment records dated from January 2007, lay statements from the Veteran, his spouse and a former employer, and VA examination reports dated in March 2007, May 2007, January 2008, February 2011, and July 2011. As will be discussed fully below, the Board finds that the next-highest rating of 20 percent has been warranted during the appeal period because pain has caused functional impairment of the Veteran's ability to oppose his right thumb to the fingers on the right hand. The VA treatment records, dated between January 2007 and April 2012, repeatedly note the Veteran's right hand pain. Beginning in January 2007, the Veteran's VA orthopedic surgeon discusses the Veteran's "chronic unstable gatekeeper's thumb" and his desire for surgery to have the thumb joints "fused." A March 17, 2007 VA operation report notes a pre- and post-operative diagnosis of degenerative joint disease, right metacarpophalangeal (MCP) joint, and the surgical procedure of fusion of the right MCP joint. The report noted resection of "approximately 3 to 4 millimeters of cartilage from the proximal phalanx." The report also noted, after insertion of pins and wires, "excellent bone apposition and the position of the thumb was also good ... and would allow apposition with all 4 fingers." A March 29, 2007 clinic note indicates "no pain with movement of thumb ... [and] good alignment." An x-ray report of the same date noted "internal fusion of the metacarpal phalangeal joint" but "no acute bony abnormality." The March 2007 VA examiner noted the Veteran's claims of pain, of popping, that he used a brace for his right hand and wrist. He reported frequently "dropping things" and reported that he missed work 40 to 50 days annually from his full-time job in golf course maintenance. The examiner noted edema near the thumb, pain on palpation, normal sensation, full and normal pulses, and "[f]inger strength is 5-/5 in all digits except he has difficulty opposing the thumb to the fifth finger, and that strength is 4/5." The examiner noted an inability to "bring his fingers to the transverse crease." The examiner noted pain-free flexion of the thumb to 45 degrees, and pain-free hyperextension to 30 degrees. The examiner diagnosed the Veteran with traumatic arthritis, and noted no additional limitations on repetitive use. In an addendum report, dated in May 2007, the examiner stated that she did "examine whether or not [the Veteran] could appose his thumb to the other fingers" and cited the findings regarding hand strength to mean that the Veteran "could appose his thumb to all fingers on that hand." A July 2007 clinical note by a VA surgeon states that the Veteran had full and stable motion in his right thumb and that "the MP joint is solidly fused." The examiner noted contrary x-rays findings however. Indeed, several reports of record of VA x-ray examinations of the right thumb, dated between May 2007 and May 2008, indicate a lack of bony union despite the attempted surgical fusion in March 2007. A November 2007 VA clinical record noted the Veteran's "constant pain" and "minimal movement" in the right thumb. Moreover, a May 2008 VA x-ray report noted progressive narrowing of the MCP joint, and that bony margins were "somewhat sclerotic." In April and August 2007 lay statements from the Veteran's spouse, she attests to the Veteran's pain since his surgery, the ineffectiveness of pain medication, and the limited usefulness of his right thumb with everyday activities such as dressing and opening jars. An April 2007 statement from the Veteran's former employer indicates that the Veteran had been unable to work since the surgery. The January 2008 VA examiner noted the Veteran's medical history to include the fact that he had recent thumb surgery in March 2007. The report detailed the Veteran's reports of constant pain, use of pain relievers, his inability to grab or grip, tie his shoes, and his use of a "cockup splint." The Veteran indicated that he was recently terminated from his job at the golf course because "he was unable to use equipment or grip or lift items." The examiner noted tenderness and an inability to "appose the thumb to the second, third, fourth, and fifth digit without pain." But the examiner noted grip strength of 5/5, and observed no significant atrophy around the thumb. The examiner noted a December 2007 x-ray report which indicated "attempted fusion at the first metacarpophalangeal joint with no boney union." The examiner further characterized the attempted surgical fusion as "not successful" with consequent "significant pain and disability." In closing, the examiner noted no additional limitations from repetitive use. An emergency room report dated in April 2008 noted the Veteran's difficulty opposing his thumb to his fingers. Further, a June 2008 VA x-ray report indicated that "complete fusion does not appear to have occurred." A June 2008 clinical note by the Veteran's VA surgeon noted pain on palpation and a painful cyst on the right thumb, which was removed by that surgeon in July 2008. August 2008 assessment by the surgeon did not indicate ankylosis findings or limitation of motion findings, but continued to note the Veteran's complaints of right thumb pain. An October 2008 treatment note by the surgeon noted the well healed thumb, but noted also an effusion at the MCP joint. In May 2009, the surgeon noted the Veteran's hypersensitivity in the right thumb area, and expressed confusion regarding the level of pain, and noted x-ray evidence indicating "solid fusion" from the March 2007 surgery. The surgeon also noted "good range of motion" in the right hand. August 2009, August 2010, and August 2011 treatment records addressing whether the Veteran has rheumatoid arthritis notes the Veteran's complaints of thumb pain, in which he indicated that movement of his thumb caused the pain to worsen. Testing noted in the reports indicated negative results for an autoimmune disorder or a connective tissue disorder, and suggested previous injury to the hand as the reason for the pain. These reports list the May 2009 x-ray report indicating bony ankylosis in the MCP joint. An October 2009 VA treatment note completed by one of the Veteran's VA treating orthopedists again raises confusion as to the "sensitivity" in the Veteran's right hand, characterizing his pain as hyperesthesia, and speculating whether he has a rheumatologic problem, or complex regional pain syndrome. The physician noted the Veteran's right arm weakness, but noted an ability to adduct and abduct the thumb. The physician also noted "solid fusion" at the MCP joint. This physician entered no findings regarding ankylosis. In an August 2010 VA treatment note regarding potential plastic surgery treatment, the plastic surgeon stated that the Veteran's right thumb pain "is out of proportion to his exam and does not fit an anatomical pattern consistent with any particular diagnosis." The physician noted July 2010 MRI findings of record which indicated "mild" degenerative arthritis and findings from the surgery. This physician also suggested the possible presence of a pain syndrome. A December 2010 letter from the Veteran's occupational therapist noted the Veteran's continuing complaints of pain and functional limitations despite significant increases in his right hand grip strength. The February 2011 VA examiner noted the Veteran's complaints of constant, sharp, and severe pain, and that he experiences functional difficulties such as dropping things, using a button, zipper, jars, opening doors, using hand tools, writing, typing, or doing repetitive hand actions. He stated that he had not worked since his March 2007 surgery because of an inability to handle equipment. The examiner did note "obvious" muscle atrophy throughout the right hand, wrist, and fingers, and noted reduced grip strength of 2/5. But the examiner also noted increased sensation to light touch, full and normal reflexes, no pitting edema, and that the Veteran could oppose the right thumb to each of the fingers "without any gapping" and could oppose fingers 1 through 4 to the transverse crease "without any gapping." The examiner did not note pain on motion during hand testing, or that repetitive testing additionally limited the Veteran's use of the right hand. The examiner finally noted February 2011 x-ray evidence noting "bony ankylosis of the first MCP joint, unchanged from prior exam." In the July 2011 VA report, the examiner stated that he did not evaluate the Veteran personally. His report and opinion addressed the effect of the thumb disorder on the Veteran's employability. The examiner indicated that, based on a review of the claims file, the Veteran's right thumb disorder was "very severe at this point" which involves significant pain and atrophy in the right hand, among other disorders that have been separately service connected for the upper right extremity. The examiner stated that the Veteran was unable to use hand tools, type, or write. As the Veteran is "right hand dominant," the examiner stated "that there would be very few job opportunities available for the patient with his current medical problems and his current activity limitations." Analysis To be sure, the evidence of record dated since January 2007 documents severe disability with the lower half of the Veteran's right upper extremity. Indeed, in a rating decision that is not on appeal, dated in May 2011, service connection for muscular atrophy in the right wrist, hand, and fingers was granted. Even when considering solely the right hand, it is clear that the Veteran has experienced adverse symptomatology during the entire appeal period. The question before the Board is whether the manifested adverse symptomatology justifies a rating increase at any time since January 2007. In answering this question, the Board will first address DC 5228. As detailed earlier, DC 5228 compensates limitation of motion of the thumb. A 20 percent rating is warranted for findings of limited thumb motion of a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. At first glance, the evidence appears to indicate that these criteria are not approximated here. Since 2007, the preponderance of the evidence has consistently indicated that the Veteran has been able to oppose his thumb to each of the other fingers on his hand. This range of motion has been repeated by the Veteran's treating VA physicians and by most of the VA compensation examination reports. Nevertheless, the Board finds equipoise in the record with regard to this issue. That is because, in assessing the Veteran's range of motion, the Board must also consider the level of pain and weakness he experiences while moving his thumb and fingers. 38 C.F.R. §§ 4.40, 4.45. The lay evidence of record, in addition to many medical findings of record, strongly indicate that, though the Veteran can oppose his thumb to his fingers, in doing so he is impaired by weakness and experiences significant pain. In making this assessment, the Board finds probative value in the January 2008 VA examiner's findings, which were issued around the time that the Veteran's treating physicians indicated normal range of motion. The January 2008 VA examiner found the Veteran unable to "appose the thumb to the second, third, fourth, and fifth digit without pain." Consistent with multiple radiological reports of record, and in contrast to findings made by the Veteran's treating physician and orthopedic surgeon, this VA examiner characterized the attempted surgical fusion as "not successful." He indicated that the "significant pain and disability" was due to the failed union. DeLuca. Hence, with regard to the issue of whether the Veteran's pain has rendered him functionally unable to oppose his right thumb to his other fingers, the Board finds application of the doctrine of reasonable doubt warranted here. As such, the criteria for a 20 percent rating under DC 5228 has been met during the appeal period. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert and Alemany, both supra. The Board will next address the issues of ankylosis under DC 5224 and amputation under DC 5152. As indicated earlier, the maximum rating for ankylosis under DC 5224 is 20 percent. As the Veteran will now be rated as 20 percent during the appeal period, the Board will not address whether a 20 percent rating would have been warranted for unfavorable ankylosis under DC 5224. The Board will limit its remaining analysis to whether a 30 percent rating would be warranted under DCs 5224 and 5152 based on disability in an ankylosed joint that is tantamount to amputation. To review, a 30 percent rating is warranted for effective amputation where both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone. If these criteria are approximated, the Board must evaluate the thumb disability as an amputation at the metacarpophalangeal joint or through proximal phalanx, and thereby assign a 30 percent rating. 38 C.F.R. § 4.71a, DCs 5152, 5224, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, note (i). References to "ankylosis" in the claims file are found in the May 2009 x-ray report noting "bony ankylosis" and in the February 2011 VA report noting a February 2011 x-ray finding of bony ankylosis. No other evidence notes the word "ankylosis." Indeed, the record indicates that the express findings of bony ankylosis refer not to a disease process in the thumb joint, but to the joint fusion that was intended, but may or may not have resulted, in the March 2007 surgery. Nevertheless, the question regarding a 30 percent rating remains before the Board. In the convalescent period following the March 2007 surgery, the period during which a 100 percent evaluation was assigned, the Veteran's right thumb had limited range of motion. But soon thereafter, an ability to move the thumb joint was demonstrated. The Veteran's surgeon noted in July 2007 full and stable motion. The January 2008 VA examiner found an ability to appose the thumb to the second, third, fourth, and fifth digits, and found full grip strength albeit with pain. In May 2009, the VA surgeon noted "good range of motion" in the right hand and noted an ability to adduct and abduct the thumb. Occupational therapy notes in December 2010 indicate significant increases in his right hand grip strength. Although the February 2011 VA examiner noted reduced hand strength, the examiner still found an ability to oppose the right thumb to each of the fingers "without any gapping" and found an ability to oppose fingers 1 through 4 to the transverse crease "without any gapping." Though painful motion has been documented, movement and flexibility of the thumb has been documented as well. Hence, though the evidence of record indicates significant disability, the evidence does not support an evaluation of 30 percent for effective amputation due to severe ankylosis. The surgeon who performed the March 2007 surgery may have succeeded in fixing the MCP joint in the Veteran's right thumb, as he intended to do, and as he repeatedly claimed to have done during the appeal period (in contrast to findings that the union was not successful). But the evidence has not shown ankylosis in both the carpometacarpal and interphalangeal joints. The evidence has not shown fixation of the thumb in extension or full flexion. And the evidence has not shown rotation or angulation of a bone. 38 C.F.R. § 4.71a, DC 5152; Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, subparagraph (i). Indeed, given the amount of movement in the right hand documented during the appeal period, the Board finds evaluation based on amputation entirely unwarranted here. Furthermore, to find a 30 percent rating warranted here, would be to find that the intended result of the March 2007 surgery - fusion to fix gatekeeper's thumb - has effectively rendered the Veteran's thumb so disabled that its uselessness is tantamount to amputation. Such a construction of the code is unwarranted. As such, a rating of 20 percent has been warranted during the appeal period for limitation of motion associated with the Veteran's right thumb disability. However, a higher rating of 30 percent has been unwarranted. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's thumb disorder is appropriately contemplated by the rating schedule. Specifically, the Veteran has had thumb pain with limited range of motion, with associated impaired function in the right hand. Those symptoms are directly contemplated by the schedular criteria. As indicated in the analysis above, were the record to indicate worse symptoms for the disorder, then the rating schedule would warrant a higher rating. Although the VA examiner in July 2011 indicated that the Veteran's disability impacts his ability to do some work, the Board notes that the schedule was created to compensate for a decrease in occupational ability due to service-connected disabilities. Thus, the Board finds that to the extent that the Veteran's thumb disability affects his ability to work, it is already contemplated by the higher rating assigned in this decision. In short, as the Veteran's symptoms are contemplated by the schedule, referral for consideration of an extraschedular evaluation is not warranted here. Thun. ORDER New and material evidence has not been received to reopen service connection for a right ankle disorder, so the appeal is denied. New and material evidence has not been received to reopen service connection for a left ankle disorder, so the appeal is denied. From January 8, 2007, entitlement to a 20 percent rating for the service-connected right thumb disorder is granted, subject to laws and regulations governing the payment of monetary awards. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs