Citation Nr: 18154656 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-27 594 DATE: November 30, 2018 ORDER New and material evidence having not been submitted, the claim to reopen entitlement to service connection for bilateral lower extremity frostbite is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an initial compensable rating for right thumb tendonitis, from August 8, 2013 to March 18, 2016, is denied Entitlement to a temporary total disability period longer than March 18, 2016 to August 1, 2016, for status post-fusion metacarpophalangeal joint of the right (dominant) thumb is denied. Entitlement to an increased rating above 20 percent for unfavorable ankylosis of the right thumb is denied. FINDINGS OF FACT 1. The June 15, 2005 rating decision is final. 2. Evidence submitted for a bilateral lower extremity cold injury was not previously submitted prior to the June 15, 2005 rating decision. 3. The new evidence submitted does not provide evidence of an in-service injury or a diagnosis for a bilateral lower extremity cold injury. 4. Symptoms for obstructive sleep apnea were not noted in service, and the current diagnosis for sleep apnea has not been shown to have been caused by service or manifested therefrom. 5. The Veteran’s in-service stressor has not been verified, nor is it a stressor covered by 38 C.F.R. § 3.304(f). 6. Prior to March 16, 2016 the Veteran’s right thumb tendonitis gave him some pain on motion that did not result in ankylosis, atrophy, or a loss of range of motion; nor were any other digits affected. 7. Medical records show that the Veteran’s right thumb surgery caused him to be out of work from March 18, 2016 to July 31, 2016. 8. Since August 1, 2016 the Veteran has experienced unfavorable ankylosis on extension of his right thumb; no other digits are affected. CONCLUSIONS OF LAW 1. The June 15, 2005 rating decision that denied service connection for a bilateral lower extremity cold injury is final. 38 U.S.C. § 7105(c) (2005); 38 C.F.R. § 3.104, 20.302, 20.1103 (2005). 2. New and material evidence having not been submitted, the criteria to reopen the claim for entitlement to service connection for a bilateral lower extremity cold injury have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 5. The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). 6. The criteria for entitlement to an initial compensable rating, for right thumb tendonitis, from August 8, 2013 to March 18, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228 (2017). 7. The criteria for entitlement to a longer period than March 18, 2016 to August 1, 2016, for temporary total disability for status post-fusion metacarpophalangeal joint of the right (dominant) thumb, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5224 (2017). 8. The criteria for entitlement to an increased rating above 20 percent for unfavorable ankylosis of the right thumb have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5224 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to September 1990 in the United States Army. This current appeal comes to the Board of Veterans’ Appeals (Board) from a March 11, 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. On June 15, 2005 the Veteran was denied service connection for his bilateral lower extremity cold injury. The disability was denied based upon a finding that there was no evidence of occurrence in service and no evidence that the claimed condition existed. He filed a notice of disagreement (NOD) to this on June 7, 2006. A statement of the case (SOC) was made on April 14, 2007 to which no substantive appeal was filed. The June 15, 2005 rating decision was therefore made final. The current appeal for the above-mentioned issues was received on August 8, 2013. Examinations were not provided for sleep apnea, PTSD, or bilateral lower extremity cold injuries, the reasoning for this is explained below. The substantive appeal was received on June 7, 2016 and no hearing was requested. Since that date, the Veteran nor his representative have indicated that a hearing is desired. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. I. New and Material Evidence Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Analysis New evidence was submitted with the NOD received on April 13, 2015; the Veteran pointed to his service treatment records (STRs) which do show issues with foot pain and ingrown toenails. On July 18, 2015 a friend of the Veteran submitted a letter. She states that she remembers the Veteran having foot issues during service. Additional new evidence came from outpatient records. On May 21, 2012 the Veteran reported issues with his toenails, but the physician said the feet seemed normal—he did not report any previous cold injuries. On May 24, 2012 the Veteran reported an increase in his foot pain over the past two days. A September 20, 2012 podiatry consult reported, Bilateral constant cramping pain of the feet. Pt. states he has had previous cold weather injury to both feet and has had many years of foot pains since 1988. Pt. current pain is plantar and distal on both feet. Pt. states he hurts most when he walks without shoes or on hard surfaces. Pt. hurts less pain with padded shoes and on carpet. Wearing integrity active orthosis without resolution of foot pain. The Veteran then discussed his cold injury on November 30, 2012. He explained how the cold injury happened and was noted as having foot pain and cramps for years. On September 26, 2014 a physician assistant said the Veteran may have gout. All this evidence is new as it was presented after the June 15, 2005 rating decision. However, it fails to be material as it does not show that a cold injury occurred during service, or even diagnose the Veteran with a foot disability that could be related to a cold injury from service. The information about toenails and foot pain was previously known by the RO. The Veteran’s lay statement and buddy statement add no materiality to this decision; nor do the additional medical records as they do not diagnose the Veteran with cold injury residuals. Given that the evidence presented is new but not material the claim to reopen entitlement to service connection for a bilateral lower extremity cold injury is denied. Since this issue is not reopened a remand for an examination is not warranted. II. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or 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). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-IV for claims certified for appeal before August 4, 2014, and DSM-5 for claims after that date, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). As with all claims for service connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order to receive entitlement to service connection for PTSD, the evidence must demonstrate a diagnosis in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 1. Tinnitus An audiology hearing evaluation was performed on January 28, 2013. It reported the Veteran had some hearing loss, and that his noise exposure was during service as an infantryman on the shooting range. The examiner found periodic bilateral tinnitus that was considered severe. The Veteran was educated on tinnitus management, and told to return if symptoms deteriorate further. The December 13, 2016 compensation and pension (C&P) exam diagnosed the Veteran with recurrent tinnitus. The Veteran reported a “solid pitch ringing that last for long periods in time then goes away.” He said he has experienced this since 1990/1991. However, the examiner did not find that tinnitus was service related because STRs were silent for any complaints, and there was no evidence of hearing loss during or shortly after service that would cause tinnitus. Analysis VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In evaluating service connection for tinnitus, the Veteran is competent to report a ringing in his ears. His service records also show that he was an infantryman for 5 years, and the January 2013 audiology exam notes this as noise exposure during service. Because of his military occupational specialty (MOS) and his competent reporting that tinnitus began in 1990/1991 the Board finds that the Veteran’s tinnitus is due to service. Even though the medical opinion denies tinnitus was onset during service it gives no other explanation for the diagnosis of tinnitus. Therefore, the Veteran is given the benefit of the doubt and service connection for tinnitus is established. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Sleep Apnea STRs do not show any complaints for fatigue, lethargy, sleep deprivation, snoring, or other symptoms of sleep apnea. He made one complaint for a sore throat on August 12, 1987, the examiner noted swollen tonsils. A second complaint for a sore throat was made on March 1, 1988. In his April 13, 2015 NOD the Veteran said that his STRs showed “plenty” of examples of him going to sick all for a sore throat. He stated this was a sign of sleep apnea. Once again, the Veteran provided a letter on July 18, 2015 from his friend. She recalls the Veteran snoring during service and also said he would stop breathing in his sleep. The Veteran told her that his throat hurt and that he was receiving medication for his throat from the Army Medical Clinic. He complained of being tired as well. A note from March 18, 2016 said the Veteran “has sleep apnea but does not use CPAP/BIPAP or sleep device.” The Veteran was informed of weight loss programs on April 7, 2016 due to his obesity but declined the assistance.   Analysis A few reports of a sore throat are not enough to show that sleep apnea was caused by or incurred during service. That single sore throat complaint was also medically diagnosed as a tonsil problem. Since service no evidence has linked the Veteran’s sleep apnea to his military service. STRs also do not show the Veteran made any complaints for the other symptoms that he and his friend have endorsed. The records do not show complaints for snoring, stoppage of breath, fatigue, or sleepiness; this despite several other medical complaints in the STRs ranging from a sore throat to a common cold. Medical records from April 2013 show that the Veteran struggled with obesity even before filing his claim for sleep apnea. Service connection requires a nexus between the diagnosed disability and service. 38 C.F.R. § 3.303. Here, there is no in-service cause for sleep apnea. The Veteran’s two complaints for a sore throat were never diagnosed as a symptom of sleep apnea, and there is not continued symptomatology from service that links a sore throat to sleep apnea. Despite the Veteran and his friend stating the etiology of the disease occurred in service, this cannot be given weight as the etiology of sleep apnea cannot be diagnosed by a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Since no competent medical evidence has been provided that links sleep apnea to service the claim here for service connection is denied. An examination is not necessary in this case. Even though there is a diagnosed disability there is no evidence establishing an in-service event or continued symptomatology from service to warrant a medical examiners nexus opinion. 38 U.S.C. § 5103A(d); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Until there is competent medical evidence establishing a link or an in-service event that caused sleep apnea there is no need for a VA examination. 3. PTSD STRs do not mention any treatment for a psychiatric condition during service. There is also nothing regarding an in-service stressor, and the Veteran is not a combat Veteran, nor did he serve in Southwest Asia. A psychological assessment was performed on March 28, 2013. He reported trauma related to training exercises, but his chief complaint was alcohol use. His drinking increased after his reported PTSD symptoms worsened, he said he drinks to fall asleep but would like to know how to control his drinking. He reported a PTSD diagnosis in 2011 or 2012, and said his symptoms included depression, sleep issues, drinking, nightmares, flashbacks, dislike of confinement (like traffic), avoidance, trust issues, and anger. He also did not like being around other people. At one point he does explain a bomb exploded inside the barracks and that he was frustrated the military tried to cover it up. While the Veteran stated that he had anger issues the examiner did not find him to be a threat to harm others. He was noted to be alert and attentive, groomed properly, cooperative, his affect was normal, speech was normal, he did not have hallucinations, his thought process was coherent and goal oriented, he did not have delusions or obsessions, he was not suicidal or homicidal, and he had fair insight and judgment. He told the examiner that his strengths are his ability to relax and that he is very kind to other people. He also said that receiving 100% disability so that he did not have to work and be around people would enhance his life. The Veteran was diagnosed with PTSD and given a GAF score of 60. A 45-minute therapy session was held on September 6, 2013. A month before this session the Veteran lost his job due to anger issues, but he was hoping to find another to help distract him from his PTSD symptoms. He reported social isolation, but he did say he liked watching sports with other people, particularly with other Veterans. Recently, he found out that a fellow soldier was able to obtain some medical records and this gave the Veteran hope about finding records about the explosion in his barracks. He said he could not remember much about the explosion, just that it may have been on a Sunday in the Spring. The Veteran had symptoms of irritated mood and sleep impairment; his thought content was good, speech was coherent, affect was appropriate, he did not show agitation or restlessness, and he did not have hallucinations, delusions, or suicidal thoughts or ideations. His GAF score was 52. On March 28, 2014 a psychiatry care note was taken. He was still having drinking problems, and reported more nightmares of himself being injured. Sometimes when he wakes up due to nightmares he will have a beer to calm down. He denied distress due to being laid off. VA received the Veteran’s stressor statement on May 30, 2014. The Veteran explained that he feared for his life after what was thought to be a “dud” shell from a tank exploded inside the barracks, and sent him flying against the wall. He and another infantryman began yelling and looking for others. He discussed helping one of the soldiers dress an open wound, and then he says he does not remember what happened next. He further states that this incident was covered up, those involved were never asked any questions, and the chain of command was immediately changed. Also on May 30, 2014, he submitted a buddy statement from a fellow soldier that says he also witnessed the stressor incident. The explanation of the event is almost the same, someone brought a “dud” round into the barracks, and while it was being tossed around it fell and exploded. Several men were injured, and very little was done about the incident. He does say he was interviewed and did not mention a change in command. On September 12, 2014 the Veteran had a 45-minute therapy session. Nightmares, irritability, and social isolation were noted as issues. He discussed getting angry at work if supervisors “tell me to do stupid things,” and he said he will take time from work when he is angry. He reported frustration with childhood friends who did not join the military and were doing well. His social life included visiting his grandchildren and talking with friends on the phone. The mental assessment found that his thought content was organized and goal directed, his speech was coherent, affect was appropriate, he was not agitated or restless, but his mood was mildly anxious and he was still having impaired sleep. He was not suicidal or homicidal, and hallucinations and delusions were absent. The November 11, 2014 Defense Personnel Records Information Retrieval System (DPRIS) report did not corroborate the Veteran’s stressor. It said, They were unable to locate copies of unit records submitted by the 4th Battalion, 23rd Infantry for January to December 1987 time period. Also, we coordinated our research with the US Army Combat Readiness/Safety Center. We were unable to locate documentation verifying that an explosion occurred in the 4th Battalion, 23rd Infantry barracks during the January-December 1987 time period. In addition, we researched the US Army casualty information available to this office. We were unable to locate documentation verifying [the Veteran] was listed as a casualty in 1987. A search in his medical records may indicate if he was medically treated in 1987 and the circumstances of his injury. The April 13, 2015 NOD stated that the Veteran has been going for mental health treatment for his nightmares, anxiety, and stress. He continued to state that the Army covered up the explosion in his barracks. A psychiatry note from March 25, 2016 notes the Veteran is “possible” for a diagnosis of PTSD. The Veteran’s drinking was discussed. The stressor he previously explained was mentioned but not detailed. Analysis To date, the in-service stressor not been verified by DPRIS, it is also not a stressor covered by 38 C.F.R. § 3.304(f). Since the Veteran was not a combat Veteran, his PTSD stressor must either be due to a personal in-service assault, or the fear or hostile terrorist or military activity. 38 C.F.R. § 3.304(f)(3) & (5). He has not mentioned an in-service assault; therefore, his stressor must be related to the latter. Because his stressor is one that involved an accident in the barracks and was not precipitated by a non-friendly, hostile force it is not a stressor for the purposes of service connection for PTSD. Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013) (the event/circumstance in service must have been perpetrated by either a member of an enemy military or by a terrorist). The stressor was essentially caused by friendly fire, and it therefore cannot satisfy the elements for service connection for PTSD. Furthermore, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). In Kays v. Snyder, 846 F.3d 1208 (Fed. Cir. 2017), the Federal Circuit affirmed a Court decision affirming the Board’s denial of service connection for PTSD due to the absence of credible supporting evidence of the claimed in-service stressor. The appellant argued that “a current medical diagnosis of PTSD” is evidence on its own that the claimed in-service stressor occurred. The Federal Circuit observed that this “misunderstands the ordinary role of a physician diagnosing PTSD. A physician is not expected to do a detailed investigation of a veteran’s claimed in-service stressors. And a physician’s diagnosis of PTSD does not necessarily identify what stressor caused it. Indeed, PTSD could result from an event not identified by the veteran. That is why the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred.” In its decision, the Federal Circuit held that CAVC had applied the correct standard of review, and had “correctly determined that the regulations require credible supporting evidence that the claimed in-service stressor occurred to the veteran” in considering 38 C.F.R. § 3.304 (f). Kays, 846 F.3d at 1210. Even though the Veteran has been diagnosed with PTSD, and is attending treatment, the diagnosis was made without a verified stressor--a stressor that remains unverified. For those reasons a remand for an examination is not necessary. The lay evidence was considered, but for the aforementioned reasons it was not enough to prove a stressor event considered by the regulations occurred. In conclusion, the diagnosis of PTSD was based on an unverified stressor and is therefore not valid for showing service connection. Entitlement to service connection for PTSD is denied. Additionally, a remand to see if a medically diagnosed psychiatric disability is related to service is also not necessary as there is no in-service event or incurrence that is stated to have caused a psychiatric disability such as anxiety or depression. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). III. Increased Rating Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information, lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The provisions of 38 C.F.R. §§4.40 and 4.45, regarding functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination and flare-ups have been considered and applied under 38 C.F.R. §4.59 and as laid out in DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 4. Compensable Rating for Right Thumb Tendonitis: from August 8, 2013 to March 18, 2016 The Veteran had a compensation and pension (C&P) examination on February 24, 2015 for his right thumb. He reported that he first injured his thumb during service after falling out of a moving vehicle. His current symptoms were pain and swelling. Flare-ups were noted; they caused pain, difficulty lifting things and twisting. The examiner diagnosed him with tendonitis. Range of motion (ROM) testing revealed the Veteran began experiencing pain at a gap of less than 1 inch. He did not suffer additional ROM loss after repetitive motion. Functional loss was reported as painful motion. The thumb had full strength with pain on palpation and no ankylosis. Flare-ups did cause pain, weakness, fatigability, or incoordination; with additional functional limitation which was described as increased pain affecting grip. Based on that examination the Veteran was granted service connection in the March 11, 2015 rating decision at 0 percent, effective August 8, 2013. The grant was based on painful motion under 38 C.F.R. § 4.59. For that initial period the thumb was properly granted a non-compensable evaluation. A 10 percent evaluation would be warranted for a gap of 1 to 2 inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71, Diagnostic Code 5228. A 20 percent rating is available with a gap of more than 2 inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Id. Other diagnostic codes are not applicable as there was no ankylosis at this time and the only digit with a diagnosed disability was the thumb. The Veteran’s thumb began experiencing pain at a gap of 1 inch, the thumb did not attempt to oppose the fingers. Consequently, the RO rated the Veteran for painful motion. 38 C.F.R. § 4.59. This rating was proper as the Veteran’s painful motion is not compensable under Diagnostic Code 5228, but his painful motion at the least warrants service connection at a non-compensable evaluation in accordance with 38 C.F.R. § 4.59. Without ankylosis, or further limited ROM a higher rating is not warranted for this time period. 5. Entitlement to a Longer Period for a Temporary Total Disability Rating Medical records of the surgery show the procedure took place on March 18, 2016. These records explained how the surgery was performed and said the post-surgery plan was to have a splint for 2 weeks, that the Veteran would experience a total of 6 weeks immobilization, and X-rays would be taken 6 weeks from surgery. On March 22, 2016 the Veteran asked for a temporary total disability rating after surgery on his right thumb. An additional statement the same day elaborated slightly more by saying the Veteran could not use his right hand for several months after the surgery. The Veteran submitted a note from April 26, 2016 that said he was not able to return to work until June 1, 2016. The May 3, 2016 rating decision gave the Veteran a 100 percent evaluation until April 30, 2016. Starting May 1, 2016, the Veteran’s non-compensable rating was restored. Another note from the VAMC Puget Sound from May 24, 2016 still did not clear the Veteran to return to work. A third note from June 14, 2016 said the Veteran would not be able to return to work until July 11, 2016. Based on the notes from the VAMC a July 21, 2016 rating decision extended the Veteran’s total temporary disability until July 31, 2016. No additional evidence has been submitted to show that the Veteran required an additional extension for his 100 percent temporary disability. His medical records showed that he required some additional extension for his inability to return to work. However, he was medically cleared to return to work as of July 11, 2016 and was allowed some carryover total disability until the end of July 2016. He was no longer totally disabled post-surgery on his right thumb as of July 11, 2016 and therefore his temporary total disability rating properly ended on July 31, 2016. An extension for that period is denied. 6. Right Thumb Rating Above 20 percent: from August 1, 2016 A C&P examination took place on January 17, 2017. The Veteran said he sometimes has such severe pain that he trembles. He did not report flare-ups. Ankylosis was seen on extension, this caused an inability to oppose the thumb and other fingers, and it impacted his grip. ROM was not tested because of the ankylosis. There was no pain noted on this exam, but there was localized tenderness. Pain, weakness, fatigability or incoordination did not occur with repeated use. Grip strength was not impaired, and there was no atrophy. Painful motion caused decreased ROM, and the Veteran had trouble with grip and his ability to torque his hand. A 20 percent evaluation was made effective on August 1, 2016 for unfavorable ankylosis of the right thumb. 38 C.F.R. § 4.71a, Diagnostic Code 5224. This is the highest evaluation available under this diagnostic code. Where, as in this case, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). An amputation is not warranted, and no other digits result in any limited motion. Additional diagnostic codes have been considered and are not applicable as only the thumb experiences a disability or limited motion. Since the right thumb is now receiving the highest possible evaluation for unfavorable ankylosis of the thumb alone it does not warrant a higher evaluation. Diagnostic Codes 5216 to 5223 would all award a rating of at least 30 percent if at least one other digit experienced ankylosis. 38 C.F.R. § 4.71a. In the Veteran’s case, only his thumb experiences ankylosis or any disability at all. Therefore, a rating of higher than 20 percent for ankylosis of multiple digits is not warranted, and a rating of higher than 20 percent for status post-fusion metacarpophalangeal joint of the right (dominant) thumb is denied. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel