Citation Nr: 1724554 Decision Date: 06/28/17 Archive Date: 07/10/17 DOCKET NO. 10-18 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of a right thumb injury. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from October 1985 to January 1986 and active duty from July 1987 to November 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. A transcript of the hearing has been associated with the record. The Board previously remanded these issues in September 2016 for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's residuals of an injury to the right thumb are not manifested by either unfavorable ankylosis or a gap between the thumb pad and fingers with the thumb attempting to oppose the fingers. 2. The Veteran is service-connected for residuals of a right thumb injury, rated at 10 percent, residuals of a ganglion cyst of the right wrist, rated at 10 percent, and sinusitis with allergic rhinitis, rated at 10 percent, for a combined disability rating of 30 percent. 3. Service-connected disabilities do not preclude the Veteran from securing or following any form of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of right thumb injury have not been met. 38 U.S.C.A. 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1 - 4 .7, 4.10, 4.45, 4.71a, DCs 5299-5224 (2016). 2. The criteria for a finding of TDIU or referral of a claim for TDIU on an extraschedular basis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Compliance with Stegall As noted in the Introduction, the Board previously remanded these matters in September 2016. The Board's Remand instructed the RO to (1) schedule the Veteran for a VA examination to determine the current severity of his right thumb disability and (2) readjudicate the claims. The Veteran was scheduled for and attended an October 2016 VA thumb examination. The RO readjudicated the matter in a December 2016 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. VA's Duty to Notify and Assist VA's duty to notify was satisfied by an August 2007 letter and additional letters sent during the claim period. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records, identified private treatment records, and VA treatment records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or relevant social security medical records exist. A VA examination was most recently afforded in October 2016 for the Veteran's right thumb disability. The record does not suggest and the Veteran has not alleged that this examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, evidence received since the most recent October 2016 examination does not indicate that the Veteran's condition has changed such as to warrant the scheduling of new VA examination to reassess the symptoms and severity of his right thumb disability. In addition, the Board finds this examination to be compliant with the Court's finding in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Hence, this examination, along with the other evidence of record, is fully adequate for the purposes of determining the extent of the Veteran's right thumb disability in light of the applicable diagnostic criteria. See id. In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The record reflects that at this hearing the undersigned Veterans Law Judge clarified the issues and explained the concept of an increased evaluation for the Veteran's right thumb disability. The Veterans Law Judge set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions supplement VCAA and comply with 38 C.F.R. § 3.103. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. III. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C.A § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Board has determined that a staged rating is not appropriate here. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. 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. See 38 C.F.R. § 4.59. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran is service-connected for residuals of a right thumb injury (dominant), with a 10 percent evaluation under Diagnostic Codes 5299-5224. 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. The Veteran filed an increased rating claim in June 2007. Under Diagnostic Code 5224, governing ankylosis of the thumb, favorable ankylosis of the thumb warrants a 10 percent disability rating; unfavorable ankylosis of the thumb warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5224. In classifying the severity of ankylosis of the thumb, the following rules are set forth in 38 C.F.R. § 4.71a : (1) Ankylosis of both the carpometacarpal and interphalangeal joints, with either joint in extension or in full flexion or with rotation or angulation of a bone, is to be rated as amputation at metacarpophalangeal joint or through proximal phalanx; (2) Ankylosis of both the carpometacarpal and proximal interphalangeal joints, even though each is individually in favorable position, is to be rated as unfavorable ankylosis; (3) With only the carpometacarpal or interphalangeal joint of a thumb ankylosed, and there is a gap of more than 2 inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers, is to be rated as unfavorable ankylosis; and (4) With only the carpometacarpal or interphalangeal joint of a thumb ankylosed, and there is a gap of 2 inches or less between the thumb pad and fingers, with the thumb attempting to oppose the fingers, is to be rated as favorable ankylosis. 38 C.F.R. § 4.71a. The Board will also consider the Veteran's disability under Diagnostic Code 5228, regarding limitation of motion of the thumb. Under that Diagnostic Code, a 10 percent evaluation is warranted for limitation of motion of the thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers and a maximum 20 percent evaluation is warranted for limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. At the outset, the Board notes that the Veteran is also service-connected for residuals of ganglion cyst of the right wrist. To the extent that symptoms associated with the right wrist disability are distinguishable from the service-connected right thumb disability, they may not be considered in the evaluation of the right thumb. See 38 C.F.R. § 4.14. At a May 2008 VA examination, there was no ankylosis of one or more digits. There was deformity of the right thumb, described as joint fusion of the right thumb. There was a gap between the thumb pad and tips of fingers with attempted opposition of thumb to fingers of less than one inch. There was decreased strength for pushing, pulling, and twisting due to joint fusion of the right thumb with approximately 15 degrees of flexion. There was decreased dexterity for twisting, probing, writing, touching, and expression due to joint fusion of right thumb with approximately 15 degrees of flexion. The examiner noted metacarpophalangeal joint fusion with approximately 15 degrees of flexion and in the interphalangeal joint 90 degrees. There was no diffuse atrophy. The Veteran had decreased strength in the use of the thumb. In his October 2008 Notice of Disagreement, the Veteran reported that he had difficulty writing for a long period of time and could barely type. At a December 2015 VA examination, the Veteran reported flare-ups described as a "throbbing type of pain that feels like my heart beat in my thumb." Functional loss or impairment was reported. The maximum extension of the metacarpophalangeal joint was 0 degrees and the maximum flexion was 0 degrees. The maximum extension of the interphalangeal joint was 0 degrees and the maximum flexion was 82 degrees. Physical examination revealed a gap between the pad of the thumb and the fingers. As noted in the Board's September 2016 Remand, the examiner did not report the size of the gap. The examiner explained that the range of motion contributed to functional loss as "inability to flex the first MCPJ of the thumb decreas[ed] efficiency in performance of physical activities requiring full range of motion." There was no evidence of pain with use of the hand, but there was objective evidence of localized tenderness or pain on palpation. There was no additional functional loss or limitation of motion upon repetitive use testing. With respect to this examination, the Board notes that its September 2016 Remand found it to be noncompliant with the Court's finding in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). The Board will consider the findings of this examination accordingly. At the October 2016 VA examination, the Veteran reported flare-ups and described them as "throbbing." The Veteran reported functional loss and functional impairment of the joint, explaining that "it slows me down when I'm cooking and stirring things." The maximum extension of the metacarpophalangeal joint was 0 degrees and the maximum flexion was 0 degrees. The maximum extension of the interphalangeal joint was 0 degrees and the maximum flexion was 70 degrees. There was no gap between the pad of the thumb and the fingers. The examiner explained that there was a reduction of the normal excursion decreasing efficiency in performance of physical activities requiring full range of motion. There was no evidence of pain with use of the hand. There was localized tenderness or pain on palpation. The examiner explained that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. Repetitive use testing resulted in a reduced maximum flexion of the interphalangeal joint at 60 degrees. There was still no gap between the pad of the thumb and the fingers. Muscle strength testing revealed right grip strength as 4 out of 5, which the examiner noted was due to the diagnosed ankylosis. There was no muscle atrophy. There was ankylosis of the metacarpophalangeal joint with no rotation of a bone and no angulation of a bone. The interphalangeal joint was not ankylosed. The examiner reported that the ankylosis resulted in limitation of motion of other digits or interference with overall function of the hand, described as a "decrease in grip strength and stamina of grip noted with repetitive use." After a review of the medical and lay evidence of record, an evaluation in excess of 10 percent is not warranted. The medical evidence of record does not show the Veteran to have unfavorable ankylosis in accordance with the provisions of 38 C.F.R. § 4.71a. Medical evidence is clear that there is only ankylosis of the carpometacarpal joint, and not the interphalangeal joint. In addition, the evidence does not show that there is a gap of more than two inches between the thumb pad and the fingers, necessary for either a 20 rating for unfavorable ankylosis under Diagnostic Code 5224 or a 20 percent evaluation under Diagnostic Code 5228 for limitation of motion of the thumb. In addition, the Board finds that the Veteran's documented loss of grip strength (4/5), decreased range of motion, decreased strength and dexterity, lack of endurance, and pain does not represent a degree of additional functional impairment that more nearly approximates the criteria for the next higher (20 percent) level as envisioned by DeLuca. The Board recognizes that the Veteran experiences pain and reports flare-ups of pain. 38 C.F.R. §§ 4.40, 4.45. While the record establishes the presence of pain after use, , there is minimal limitation of motion after repetitive use at the October 2016 VA examination. Given these findings, the Board cannot find that the Veteran's symptoms more closely approximate amputation. The Board notes that the Veteran's service-connected right thumb disability also includes a related scar. However, the VA examination reports contain no indication that the scar results in any disability, including pain or tenderness. Thus, consideration of a scar as a separately ratable disability is not warranted. IV. TDIU The Veteran is currently in receipt of service connection for residuals of a right thumb injury, rated at 10 percent, residuals of a ganglion cyst of the right wrist, rated at 10 percent, and sinusitis with allergic rhinitis, rated at 10 percent. His combined rating is 30 percent. The Veteran, accordingly, does not meet the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (b) provides that when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16 (a), such case may be considered for extra-schedular consideration. The key determination, then, is whether the Veteran is unemployable. In the Veteran's September 2007 formal TDIU application, he reported that all of his service-connected disabilities prevented him securing or following any substantially gainful occupation. The Veteran reported that he last worked full-time in October 2003 as a car detailer, and became too disabled to work the same month. At the Veteran's most recent VA examination in October 2016, for his right thumb disability, the examiner reported that the disability would functionally impact his ability to perform any type of occupational task. The examiner explained that the functional limitations resulting from the right thumb disability would "prevent employment requiring prolonged, fine, and delicate movement." At a December 2015 VA examination to determine the severity of his service-connected sinusitis with allergic rhinitis, the examiner concluded that the disorder did not functionally impact the Veteran's ability to work. At a December 2015 VA examination regarding the Veteran's service-connected ganglion cyst and surgical scar, an examiner concluded that the Veteran has no functional limitations when considering the Veteran's right wrist and any residuals of the ganglion cyst. The Veteran is not shown to be unable of obtain and retain substantially gainful employment due to service-connected disabilities. While the service-connected right thumb disability may have some impact upon his earning capacity, accounted for by the Schedular evaluation assigned, he is not shown to be unable to secure and follow any employment. As noted, VA examinations did not reveal any functional limitations stemming from his other service-connected disabilities. His service-connected right thumb disorder does not by itself deprive the Veteran of functional occupational capacity, sufficient to obtain and retain gainful work. The Board may not consider his nonservice-connected stroke, as discussed at his April 2016 hearing, in making this determination. Moreover, while the Board acknowledges that his service-connected disabilities have some impact on his physical capability, they do not prevent him from working with or under the supervision of others, or from interacting with the public. The preponderance of evidence is against the claim; there is no doubt to be resolved. The Veteran is not unemployable due solely to service-connected disabilities, and hence referral for extraschedular TDIU under 38 C.F.R. § 4.16 (b), is not warranted. ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a right thumb injury is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs