Citation Nr: 18149262 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 11-02 695A DATE: November 9, 2018 ORDER A 10 percent rating for status post right trigger thumb release is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran’s right thumb disability is manifested by pain that does not result in limitation of motion. CONCLUSION OF LAW The criteria for a 10 percent rating, but no greater, for status post right trigger thumb release have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1 – 4.7, 4.31, 4.59, 4.71, Diagnostic Codes 5024-5228 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service from September 2004 to December 2005, to include service in the Southwest Asis theater of operations, and a period of inactive duty service from June 2000 to August 2000. The Board remanded the Veteran’s above claims for additional development in October 2017. As the requested development has been completed the case may move forward without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a compensable rating for a right thumb disability 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 (2018). Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155 (2014). The evaluation of a service-connected disorder requires a review of a Veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2018). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2018); see 38 C.F.R. § 4.27 (“When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy”). Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, “[a]n analogous rating... may be assigned only where the service-connected condition is unlisted.’” Suttman v. Brown, 5 Vet. App. 127, 134 (1993). The Veteran’s right thumb disability has been assigned a noncompensable evaluation under DCs 5024-5228. She asserts that her right thumb disability has worsened and that an increased evaluation is warranted. Diagnostic Code 5024 instructs that diseases under DCs 5013 through 5024 will be rated on limitation of motion of affected parts. Under Diagnostic Code 5228, thumb limitation of motion with a gap of less than one inch (2.5cm.) between the thumb pad and the fingers with, with the thumb attempting to oppose the finger is evaluated at 0 percent. Thumb limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, warrants and evaluation of 10 percent. Thumb limitation of motion with a gap of more than two inches (5.1 cm.) between the thumb pas and the finger, with the thumb attempting to oppose the fingers warrants and evaluation of 20 percent. As an initial matter, the Board notes that the Veteran is right-handed. In a July 2006 C&P progress examination, the examiner noted no swelling, erythema, or deformity of the Veteran’s right thumb. He noted that the Veteran underwent a trigger thumb release during service, and that the surgery improved her range of motion and resolved the clicking in her right thumb. Right thumb incisional scars were not discernible. The examiner also noted no atrophy of the thenar eminence along with no tenderness, swelling, bogginess or nodules with palpation along the joints surfaces. He noted finger abduction with fingers spread apart 0 to 20 degrees with fist-fingers tight in fist. The Veteran was able to touch thumb to the index, long and ring fingers, and to the base of the little finger. She reported difficulty picking up bottles/jars with her right hand when at home, difficulty using a syringe when at work, and fatigue when taking notes during lectures at school. A noncompensable evaluation was granted effective from December 2005 as the Veteran’s right trigger thumb was diagnosed with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A January 2008 VA right thumb examination reveals mild tenderness with palpation of the metacarpal joint, but no swelling, or deformity of the right thumb. There was 65 degrees metacarpal joint flexion and 70 degrees interphalangeal joint flexion, with no additional function limitation following three repetitions of testing. A noncompensable evaluation was maintained as the Veteran’s right trigger thumb was diagnosed with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In an April 2009 Notice of Disagreement, the Veteran reported that during service she experienced excruciating right thumb pain and difficulty performing daily activities such as dressing, bathing, grooming, and eating. She also noted difficulty cleaning her military rifle. She stated that overuse of her right thumb has resulted in an enlarged joint and pain. In a June 2016 VA right thumb examination, the Veteran reported pain, swelling, and weakness. She stated that these symptoms interfered with her daily activities. Flare-ups consisted of “dull pain in a localized area in the joint and the length of the right thumb.” The examiner diagnosed the Veteran’s right thumb range of motion as normal with no gap between the pad of the thumb and the fingers. The examiner also noted no evidence of localized tenderness or pain on palpation of the joint or functional loss. The examiner noted the Veteran’s right-hand grip as 5 of 5 with no muscle atrophy or ankylosis. There was a 2.5 cm linear scar that was well-healed and non-tender. A noncompensable evaluation was maintained as the Veteran’s right trigger thumb was diagnosed with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In an April 2018 VA examination, the Veteran was diagnosed with right thumb trigger finger. She reported constant pain throughout the day and noted that the joint had increased in size. She reported that domestic and work activities were painful. Flare-ups consisted of acute pain when driving or cooking. She worked as a nurse and noted that her right thumb interfered with using a syringe, opening jars, typing, and writing. She regularly used a brace. The examination revealed the right-hand range of motion as normal. The examiner noted no gap between the pad of the thumb and fingers or the finger and proximal transverse crease of the hand on maximal finger flexion. Pain was reported on use of the hand. There was objective evidence of pain to the right thumb ventral surface at the 1st MCP. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss. The examiner was unable to report whether there was pain, weakness, fatigability, or incoordination which significantly limits functionality with repeated use over a period of time or during flare-ups without speculation. Muscle strength was reported with normal strength. There was no muscle atrophy, ankylosis or arthritis found. The examiner reported the passive range of motion testing equal to active range of motion testing without pain. The examiner did diagnose objective evidence of pain with weight bearing and non-weight-bearing. A noncompensable evaluation was maintained as the Veteran’s right trigger thumb was diagnosed with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In an April 2018 VA right thumb disability C&P addendum opinion, the examiner noted that the Veteran’s prior right thumb examinations revealed normal findings except for pain symptoms noted in both thumbs. He also noted that the Veteran’s MRI was normal. Turning now to an evaluation of the most appropriate rating for the Veteran’s right thumb disability, Diagnostic Code 5224, applicable to ankylosis of the thumb, does not apply because the Veteran has not demonstrated ankylosis of the right thumb at any time. See 38 C.F.R. § 4.71a (2016). Diagnostic Code 5228 provides for a 10 percent rating for a gap of one to two inches (2.5cm to 5.1cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers warrants a 10 percent disability rating. The Veteran’s range of motion in the thumb has repeatedly been normal and so her disability does not warrant a greater evaluation under these criteria. The Board has considered functional loss since the Veteran’s right thumb disability involves complaints of painful motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has described how her right thumb is limited by pain that results from forceful, repetitive, or prolonged use of the right hand. This functional limitation is especially problematic when performing the duties associated with her job as a nurse, such as using a syringe. Although surgery has improved her range of motion in her right thumb, she continues to have difficulty in picking up bottles or jars with her (dominant) right hand. The Board accepts the Veteran’s competent and credible assertions that her right thumb disability causes her to experience pain. To the extent that the schedular criteria indicate the Veteran’s painful motion is entitled to at least the minimum compensable rating for the joint, a 10 percent rating is assigned for the Veteran’s right thumb disability. See 38 C.F.R. § 4.59. In sum, the overall manifestations of the Veteran’s right thumb disability demonstrate a degree of functional loss most nearly approximating the criteria for a 10 percent rating. The Board has considered whether a separate compensable rating is warranted for a right thumb scar. Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1) states that a scar is unstable if, for any reason, there is frequent loss of covering skin over the scar. The June 2016 examiner noted that the Veteran does have a 2.5 cm linear scar on her right thumb, which is well-healed and non-tender. As the Veteran’s right scar is not unstable or painful, a 10 percent rating is not warranted. Finally, the Board has considered whether an extraschedular rating is warranted. There is a three-step inquiry to determine whether a claim should be referred for extraschedular consideration. First, the Board must determine whether the rating criteria reasonably describe a veteran’s disability level and symptomatology. Second, if the rating criteria do not reasonably describe the veteran’s disability level and symptomatology, then the Board must determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent hospitalization. Third, if such factors are present, then the case must be referred for extraschedular consideration to the Director, Compensation Services. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). (Continued on the next page)   In this case, the evidence fails to show anything unique or unusual about the Veteran’s disability that would render the schedular rating criteria inadequate. The symptomatology associated with the Veteran’s condition is fully addressed by the schedular rating criteria under which such disabilities are rated. The Board acknowledges that the Veteran uses a brace for her right thumb, but finds that the symptoms that cause her to use a brace are contemplated by the schedular rating criteria. The Veteran’s right thumb symptoms focus largely on pain and impairment of movement, which are addressed in the applicable rating criteria. Therefore, referral for consideration for an extraschedular rating is not warranted. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel