Citation Nr: 1751843 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-44 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable rating for residuals, right thumb fracture. 2. Entitlement to an initial compensable rating for left great toe with osteoarthritis status post surgery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from May 2001 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. At no point during the appeal period did the Veteran's residuals of a fracture of the right thumb manifest any gap between the thumb pad and opposing fingers or any ankylosis, with the thumb attempting to oppose the fingers. 2. The Veteran's left great toe osteoarthritis is manifested by pain and limits his ability to walk and stand, and more closely approximates a moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of a fracture of the right thumb have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5228 (2017). 2. The criteria for a 10 percent rating for left great toe osteoarthritis status post surgery have been met. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. § 4.59, 4.71a, Diagnostic Codes 5010, 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Veteran was provided pre-adjudication notice in December 2006 regarding how to substantiate his increased rating claims. The Veteran was also told how VA would assist him in obtaining additional relevant evidence and how VA determines the effective date and disability rating. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In the present case, the Board finds that the duty to assist has been fulfilled. The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. He has also been examined (in January 2007, June 2010, and August 2012). The reports of those examinations, taken together with other evidence of record, contain descriptions of impairment sufficient for the proper evaluation of his disability. There is no suggestion on the current record that there is any other evidence outstanding. As such, no further development action is required. II. Increased Rating Claims Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A. Residuals of Right Thumb Fracture The Veteran's service-connected residuals of a right thumb fracture are currently rated as noncompensable under Diagnostic Code 5228. Pursuant to Diagnostic Code 5228, as to both the dominant and non-dominant hand, for limitation of motion of the thumb, where there is a gap of less than one inch between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 0 percent rating is assigned; where there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 10 percent disability rating is assigned; where that gap is more than two inches, a maximum 20 percent disability rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5228. Pursuant to Diagnostic Code 5224, as to both the dominant and non-dominant hand, favorable ankylosis of the thumb is rated as 10 percent disabling, and unfavorable ankylosis of the thumb is rated as 20 percent disabling; a rating of higher than 20 percent is not available. A Note also advises that consideration should be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. §4.71a, Diagnostic Code 5224. In connection with his October 2006 claim, the Veteran underwent a VA examination in January 2007. He reported pain in his right thumb that occurred five times per week, lasting two hours. The pain made it difficult to pinch and grab. On physical examination, the Veteran could tie his shoelaces, fasten buttons, and pick up a piece of paper without difficulty. On examination of hand dexterity, the right hand fingertips could approximate the proximal transverse crease of the palm. The measurement between the tip of the right thumb was 0 centimeters as to the index finger, long finger, ring finger, and little finger. His right hand strength was within normal limits. All range of motion measurements for the right thumb were normal. There was no thumb ankylosis. The Veteran was afforded a VA examination in June 2010. He reported constant squeezing, aching, sharp, and cramping pain in his thumb, that was exacerbated by physical activity and stress. He treated the pain with rest and Ibuprofen. He said he had a decreased use of his right hand, hand stiffness, and cramps, as well as difficulty with writing, typing, making a grip, grasping, holding, or carrying objects. On examination, the Veteran could tie his shoelaces, fasten buttons, and pick up a piece of paper without difficulty. Hand dexterity examination revealed that the measurement between the tip of the right thumb was 0 centimeters as to the index finger, long finger, ring finger, and little finger. All range of motion measurements for the right thumb were normal. His right hand strength was within normal limits. There was no thumb ankylosis. The Veteran underwent another VA examination in August 2012. He described his current right thumb symptoms to include weakness and soreness, and he said he had flare-ups that manifested with pain and loss of grip. There was no limitation of motion of evidence of painful motion for any of the Veteran's fingers or thumbs, and the Veteran was able to perform repetitive-use testing with three repetitions without additional limitation of motion for any fingers post-test. There was no gap between the thumb and any fingers post-test. There was no functional loss or functional impairment of any of the fingers or thumbs, nor additional limitation in range of motion of any fingers or thumbs following repetitive-use testing. He had 5/5 muscle strength on both hands. There was no noted ankylosis of the thumb. Entitlement to a compensable evaluation for residuals of a fracture of the right thumb is not warranted. At no point during the period on appeal did the Veteran's residuals of a right thumb fracture manifest any gap between the thumb pad and opposing finger or any ankylosis. VA examinations in January 2007, June 2010, and August 2012 specifically noted no gap. Moreover, there is no functional loss, functional impairment, or limitation in range of motion following repetitive-use testing. Therefore, entitlement to a compensable evaluation for residuals of a fracture of the right thumb is denied. B. Left Great Toe The Veteran's service-connected left great toe disability is currently rated under Diagnostic Code 5282. He was awarded a temporary total rating following a surgery on his left toe from May 7, 2007 through June 30, 2007. The noncompensable rating was resumed from July 1, 2007. Under Diagnostic Code 5282, a noncompensable rating is warranted when only single toes are affected. When all toes, unilateral without claw foot, are affected, a 10 percent rating is assigned. In connection with his claim, the Veteran underwent a VA examination in January 2007. He stated that he suffered from constant sharp, achy pain located in his left big toe. The pain was elicited by stress and physical activity, and was relieved by rest. He said he used orthotics. Physical examination of the left foot revealed tenderness. There was no pes planus, pes cavus, hammer toes, hallux valgus, hallux rigidus, or Morton's metatarsalgia present. He did not have any limitation with standing or walking, but required foot supports. It was indicated that the Veteran had osteoarthritis of the left big toe. On VA examination in June 2010, the Veteran reported constant pain that was crushing, aching, sticking, and cramping. He said the pain came spontaneously and was relieved by rest and Ibuprofen. He said he had difficulty with walking and standing. Physical examination of the left foot revealed tenderness, but did not reveal painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion in the metatarsophalangeal joint of the left great toe. Palpation of the plantar surface of the left foot revealed no tenderness. There was no pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus present. He had limitations with standing and walking; walking was limited to a quarter of a mile. On VA examination in August 2012, it was indicated that the Veteran had current early osteoarthritis of the first metatarsophalangeal joint. He did not have: Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, bilateral weak foot, or any other foot injuries. A review of the record reveals that the Veteran does not meet the criteria for a compensable rating under Diagnostic Code 5282, as he does not have hammer toe affecting a single toe. However, the record shows that the Veteran has consistently reported pain in his left great toe, which affects his ability to walk and stand for long periods of time. Indeed, the June 2010 VA examiner specifically indicated that the Veteran's toe disability precluded him from walking more than a quarter of a mile. Accordingly, the Board finds that the Veteran's left great toe disability more closely approximates a moderate foot injury, rated under Diagnostic Code 5284. A higher rating is not warranted as examinations have not shown any symptoms that would indicate that he has a moderately severe or severe foot injury. As such, the Board concludes that a 10 percent rating is warranted under Diagnostic Code 5284 for moderate foot injury for the Veteran's service-connected left great toe with osteoarthritis post surgery. The term "moderately severe" as used in Diagnostic Code 5284 is not defined by regulation. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "moderate," "moderately severe," or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). In this regard, the Board notes that the overall regulatory scheme relating to rating disabilities of the feet and toes contemplates 20 percent ratings in cases where problems include such difficulties as dorsiflexion of all toes unilaterally and marked tenderness under the metatarsal heads. See 38 C.F.R. § 4.71a, Diagnostic Code 5278 (no more than 10 percent is warranted even if the great toe is dorsiflexed). A 20 percent rating may also be assigned when there is moderately severe malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. Here, the record does not suggest that the Veteran's disability approximates such a degree of severity. At the VA examinations, the Veteran did not indicate any symptoms other than foot pain. Clinical examinations did not reveal any other foot symptoms. There was no objective evidence of swelling, instability, weakness, or abnormal weight bearing. The Veteran has reported experiencing pain in his feet on walking and standing. In sum, the manifestations of the Veteran's bilateral foot disability include pain on weight bearing. The Board finds that the disability picture in this case is not congruent to the severity of having dorsiflexion of all toes unilaterally, marked tenderness involving the metatarsal foot head, or moderately severe malunion or nonunion of the tarsal or metatarsal bones that would warrant a 20 percent rating under other comparable diagnostic codes concerning foot disabilities. The Board has considered other Diagnostic Codes pertaining to the toes; however the evidence fails to show that he has flat foot, claw foot, weak foot, Morton's disease, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.72, Diagnostic Codes 5276-5283. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial compensable rating for residuals, right thumb fracture, is denied. An initial 10 percent rating for left great toe with osteoarthritis status post surgery is granted (excluding any period where a temporary total rating is in effect). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs