Citation Nr: 1754958 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-33 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the right thumb and hand prior to June 4, 2014, and in excess of 20 percent thereafter, to include the question of whether the reduction in the rating from 20 to 10 percent, effective from March 30, 2017, was proper. 2. Entitlement to an increased rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the left thumb and hand prior to June 4, 2014, and in excess of 20 percent thereafter, to include the question of whether the reduction in the rating from 20 to 10 percent, effective from March 30, 2017, was proper. REPRESENTATION Veteran represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to December 1968. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In an August 2017 rating decision, based on development related to the pending appeal, the RO decreased the rating for DJD of the bilateral thumbs and hands to 10 percent, effective as of March 30, 2017. Although the reduction is not specifically before the Board, the Board deems the issue of whether the reduction was proper to be part and parcel of the current appeal for an increased rating for DJD of the bilateral thumbs and hands because the increased rating claim covers the period prior to, during, and after the reduction. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Accordingly, the Board takes jurisdiction of the issue of whether the reduction was proper. The Veteran was granted a total rating based on individual unemployability (TDIU) from October 2012 to June 2014 in a March 2015 rating decision. In August 2015, the Board remanded the case for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACTS 1. In an August 2017 rating decision, the Veteran's disability rating of the bilateral thumb and hand was reduced from 20 percent to 10 percent. 2. Prior to this reduction, the Veteran was not provided a proposed rating reduction nor was he informed he had 30 days to request a hearing and 60 days to submit additional evidence. 3. For the appeal period prior to June 4, 2014, the Veteran's DJD of the bilateral thumbs and hands has been manifested by a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, there was no ankylosis. 4. For the appeal period after June 4, 2014, the Veteran's DJD of the bilateral thumb and hand has been manifested by a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Ankylosis has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DJD of the bilateral thumbs and hands, prior to June 4, 2014, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5010 (2016). 2. The criteria for a rating in excess of 10 percent DJD of the bilateral thumbs and hands, after June 4, 2014, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5010, 5228 (2014). 3. The criteria for reduction of a 20 percent rating to a 10 percent rating for DJD of the bilateral thumbs and hands have not been met; restoration is warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.124a, Diagnostic Code 5228 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, the Board finds that the August 2015 remand directives have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). II. Propriety of rating reduction The procedural facts in this case are not in dispute. Service connection for DJD has been in effect since August 2009, at which time a 10 percent disabling rating was assigned. Subsequently, the Veteran was assigned a 20 percent rating, effective, June 4, 2014. In an August 2017 rating decision, the RO decreased the rating from 20 to 10 percent, effective March 30, 2017, based on the findings of a March 30, 2017 examination. Prior to reducing a Veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level and 30 days to request a hearing. 38 C.F.R. § 3.105(e). In the present case, the record does not reflect that these procedural safeguards were afforded the Veteran. At the time of the August 2017 rating decision, the Veteran was in receipt of 100 percent total compensation and the reduction in benefits resulted in a 90 percent total compensation. the Veteran was not issued a rating decision proposing the reduction, nor was he allowed 60 days for presentation of additional evidence following a proposed reduction. In fact, the reduction was made retroactive to March 30, 2017. When an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). Further, while the law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case, the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the proper procedures for a rating reduction were not met, the Board finds that the August 2017 rating decision reducing the Veteran's DJD of the hand and thumb 20 percent to 10 percent from March 30, 2017, was improper. Accordingly, restoration of the 20 percent disability rating from March 30, 2017, is warranted. III. Increased Rating A. Legal Analysis VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321 (2016); see generally, 38 C.F.R. § Part IV (2016). 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 (2016). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016); see also 38 C.F.R. § 3.102 (2016). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). B. Merits of the Claim The RO granted service connection for the hand and thumb disability in the August 2009 rating decision and assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5010. In the October 2014 rating decision, during pendency of the claim, the RO assigned a 20 percent disability rating, effective June 4, 2014, under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5228. Arthritis due to trauma and substantiated by x-ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2016). Diagnostic Code 5010 instructs to rate under Diagnostic Code 5003 (degenerative arthritis). Under that diagnostic code, arthritis of a major joint or group of minor joints is to be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2015). For the purpose of rating disabilities due to arthritis, the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a group of minor joints, ratable on parity with major joints. See 38 C.F.R. § 4.45 (2016). Where limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2016). While the thumb is not a major joint, it is a collection of minor joints for the purposes of 38 C.F.R. § 4.45. Under Diagnostic Code 5228, a 10 percent rating 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. 38 C.F.R. § 4.71a, Diagnostic Code 5228. A 20 percent rating 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. Id. The Veteran submitted a claim for increased rating for DJD of the hand and thumb in November 2010. He has written that the deterioration of his thumbs and hands will result in the total loss of use the extremities. See July 2011 Statement in Support of Claim. The Veteran had a VA examination of his right hand in June 2009. Dexterity examination indicated no gap between the thumb pad and the right index fingertip with the thumb attempting to oppose the fingers. There was a gap between the fingertip and proximal transverse crease of the palm of less than 1 inch bilaterally. There was no objective evidence of thumb pain on any of these attempts or after three repetitions. His left hand grip strength was 4/5. Upon repetitive range of motion testing of the thumb, the examiner found joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. The examiner did not note any chronic flare-ups. At a December 2010 VA examination, the Veteran reported that he has chronic daily pain in his hands that he described as throbbing and aching. The Veteran reported locking occurring randomly several times a week. The Veteran noted difficulty grasping objects, especially smaller items such as a fork or a pen. On examination, there was no gap between the Veteran's bilateral thumb pad and fingers with the thumb attempting to oppose the fingers. The gap between the tip of the thumb and fingers was 4 inches bilaterally. There was a gap between the fingertip and proximal transverse crease of the palm of less than 1 inch bilaterally. X-ray evidence confirmed the presence of degenerative joint disease reported as being most prominent at the first carpometacarpal (CMC) joints. It was noted that the joints were painful on motion but that the range of motion or joint function was not additionally limited by pain, fatigue weakness incoordination, or lack of endurance following repetitive use. The examiners noted mild functional impairment due to subjective symptoms. Imaging revealed bone-on-bone thumb carpometacarpal joint (CMC) osteoarthritis. The Veteran complained of constant numbness and tingling. See February 2011 UCONN Health Center treatment note. In May 2011, Dr. C.R. of the New England Musculoskeletal Institute submitted a statement on the Veteran's behalf. Dr. C.R. noted the Veteran's thumbs are locking frequently and there is a spread of constant numbness in his fingers of both hands. The Veteran has a severe reduction concerning grasp and holding every day light and medium weight items such as single sheets of paper, eating utensils, garments, and hand tools. The Veteran was afforded another VA examination in June 2014. The Veteran reported flare-ups in the first and second metacarpophalangeal (MCP) joint bilaterally with flexing thumbs and index fingers. The Veteran stated the flare-ups occur several times per day, with associated stiffness, weakness, fatigue, and lack of endurance. The gap between the thumb pad and fingers was greater than 2 inches bilaterally, with objective evidence of painful motion. There was a gap between the fingertip and proximal transverse crease of the palm of less than 1 inch for the index finger and the little finger, with no objective evidence of painful motion. Upon repetitive motion of the thumb, the examiner indicated additional pain, fatigue, weakness, lack of endurance, or incoordination. The Veteran's West Haven VA treatment records note that in December 2015, he had decreasing use of both hands. In March 2017, the Veteran received another VA examination. The Veteran reported frequent bilateral thumb pain and muscle spasms in his thumbs twice per week. He reports flare-ups twice per month with pain lasting for 12 hours. Upon dexterity examination, the examiner did not document a gap between the thumb pad and fingers was greater than 2 inches bilaterally; however, the examiner observed objective evidence of painful motion. There was a gap between the fingertip and proximal transverse crease of 2 centimeters for the index finger and the long finger, with no objective evidence of painful motion. Examination of the thumb and fingers did not reveal ankylosis. Upon repetitive motion of the thumb, the examiner did not indicate additional pain, fatigue, weakness, lack of endurance, or incoordination. Bilateral hand x-rays show that the Veteran has bilateral thumb CMC joint degenerative arthritis. A. Prior to June 4, 2014 Prior to June 4, 2014, the Veteran's hand and thumb disability is rated as 10 percent disabling under Diagnostic Code 5010. Upon consideration of the evidence above, the Board finds that the competent evidence of record does not support a rating in excess of 10 percent for the time period prior to June 4, 2014. A higher 20 percent rating is not warranted under Diagnostic Code 5003 or 5010 for arthritis primarily because Diagnostic Code 5003 requires X-ray evidence of arthritis in two minor joint groups in order for a 20 percent rating to be assigned, and the thumb constitutes only one minor joint group. See 38 C.F.R. § 4.45. Further, evidence of incapacitating episodes based upon the Veteran's condition has not been demonstrated. Therefore, even with demonstrated arthritis, a higher disability rating cannot be assigned under Diagnostic Code 5003. The Board has considered a rating under Diagnostic Code 5228. As noted above, the evidence of record, including the June 2009 and December 2010 VA examination reports, shows that at no time has the Veteran demonstrated there are any gaps of one inch or more between the thumb pad and fingers, with the thumb attempting to oppose the fingers, or between the tips of the fingers to the proximal transverse creases. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Board has considered the application of the other potentially relevant diagnostic codes discussed above, but none are applicable in this instance. See Schafrath, 1 Vet. App. 589. For the purposes of Diagnostic Code 5224, governing ankylosis of the thumb, neither of the VA examiners nor any of the private treatment records indicate that the Veteran's bilateral thumb disability is manifested by ankylosis, with all of the records reflecting at least some range of motion. Id. The Veteran has also not indicated at any point that he cannot move either his left or right wrist. Further, there is no evidence of ankylosis of any type of multiple digits on the Veteran's left hand. 38 C.F.R. § 4.71a, Diagnostic Code 5216-5223. Finally, there is no medical or lay evidence that so little effective function remains in the Veteran's bilateral thumbs that he would be better served by amputation. 38 C.F.R. § 4.71a, Diagnostic Codes 5224, Note, 5152. The Board has also considered the provisions of 38 C.F.R. § 4.40 and 4.45 in accordance with the holdings in DeLuca pertaining to functional loss due to pain. Here, the examiners specifically found that repetition on the range of motion three times did not cause any additional limitation in degrees. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In sum, the Board finds that the Veteran's DJD of the bilateral thumbs and hands most closely approximates the criteria for a 10 percent rating under Diagnostic Code 5003-5010. See 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence is against the assignment of a higher rating prior to June 4, 2014. B. From June 4, 2014 From June 4, 2014, the Veteran's hand and thumb disability is rated as 20 percent disabling. Initially, the Board notes that the maximum rating under Diagnostic Code 5228 is 20 percent, which is warranted for limitation of motion of the thumb. Because the Veteran is already in receipt of the maximum rating from June 4, 2014, a higher schedular rating is not possible under DC 5228. Nor is a higher 20 percent rating warranted under Diagnostic 5003 for arthritis primarily because Diagnostic Code 5003 requires X-ray evidence of arthritis in two minor joint groups in order for a 20 percent rating to be assigned, and the thumb constitutes only one minor joint group. See 38 C.F.R. § 4.45. Additionally, the Veteran has been assigned a compensable rating based on limitation of motion. Further, evidence of incapacitating episodes based upon the Veteran's condition has not been demonstrated. Therefore, even with demonstrated arthritis, a higher disability rating cannot be assigned under Diagnostic Code 5003. Furthermore, no additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. For the purposes of Diagnostic Code 5224, governing ankylosis of the thumb, none of the VA examiners nor any of the private treatment records indicates that the Veteran's hand and thumb disability is manifested by ankylosis, with all of the records reflecting at least some range of motion. Id. The Veteran has also not indicated at any point that he cannot move either his left or right wrist. Further, there is no evidence of ankylosis of any type of multiple digits on the Veteran's hand. 38 C.F.R. § 4.71a, Diagnostic Code 5216-5223. Finally, there is no medical or lay evidence that so little effective function remains in the Veteran's thumb that he would be better served by amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5224, Note. In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, swelling, stiffness, loss of grip, weakness, and limitation of motion, all of which the Veteran is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Both the VA and private medical records reflect notations of pain and swelling that causes additional functional impairment. However, this additional impairment was taken into account by the measurements conducted by the VA examiners, and none of the other medical evidence indicates that the additional functional impairment results in a disability picture that more nearly approximates the level contemplated by a 20 percent rating for limitation of motion of the thumb. Therefore, the functional impact of these additional factors is fully considered by the Veteran's currently assigned 20 percent ratings for his bilateral thumbs. 38 C.F.R. §§ 4.40, 4.45, 4.59. 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). In sum, the Board finds that the Veteran's bilateral thumb and hand disability most closely approximates the criteria for a 20 percent rating under Diagnostic Code 5228. See 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence is against the assignment of a higher rating at any point during the period on appeal. ORDER The August 2017 disability rating reduction was improper; restoration of the 20 percent evaluation for DJD of the bilateral thumb and hand is granted. A rating in excess of 10 percent for DJD of the bilateral thumbs and hands prior to June 4, 2014, is denied. A rating in excess of 20 percent for DJD of the bilateral thumbs and hands after June 4, 2014, is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs