Citation Nr: 18156751 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 17-45 580 DATE: December 11, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for right hand arthritis (previously rated as traumatic arthritis of the right thumb) is denied. FINDING OF FACT The most probative medical evidence showed that the Veteran’s right hand has no favorable/unfavorable ankylosis, no limitation of motion of individual digits as manifested by no gap between the thumb pad and the fingers, no gap between the fingertip and the proximal transverse crease of the palm with extension limited by more than 30 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right hand arthritis (previously rated as traumatic arthritis of the right thumb) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5228-5010 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from September 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2015 rating decision, the RO granted service connection for right thumb arthritis and assigned a noncompensable evaluation, effective February 12, 2013, under DC 5228. The RO later increased the evaluation to 10 percent effective February 12, 2013, and recharacterized the disability to include right hand arthritis, rating the condition under DC 5228-5010. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to his claim. 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 a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. 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. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. In February 2013, the Veteran filed a claim for service connection for right thumb arthritis. The Veteran claims that his condition has gotten worse and that his right hand is tender to the touch, which causes him to lose grip, and he reports stiffness, locking, and severe pain in his right hand (which is his dominant hand). The Veteran’s service-connected right hand arthritis (previously rated as traumatic arthritis of right thumb) is currently evaluated as 10 percent disabling pursuant to DC 5228-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, DCs 5003, 5010 (2017). Moreover, arthritis due to trauma under DC 5010 substantiated by x-ray findings is rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Limitation of motion of the thumb is contemplated in 38 C.F.R. § 4.71a, DC 5228. DC 5228 assigns a 10 percent rating for 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. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. There is no differentiation between the ratings assigned for the major and minor hands under DC 5228. The Veteran underwent a VA examination in November 2014, during which he was diagnosed with degenerative or traumatic arthritis of the right thumb. He complained of pain and flare ups in cold winter. For the initial range of motion (ROM), the examiner noted the limitation of motion. However, there was no gap between thumb pad and fingers nor between fingertips and proximal transverse crease of the palm. After repetitive use testing, there were no additional functional loss or range of motion; no additional limitation in ROM of any fingers; no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis; and no functional impairment of an extremity. While the tenderness and pain on palpation was noted on the right thumb, the Veteran was found to have normal muscle strength (right hand grip strength was 5/5). No other joints of the right hand were documented to have degenerative or traumatic arthritis. As for the index/long finger, no limitation of extension or evidence of painful motion was found. See November 2014 VA examination. The Veteran again underwent a VA examination in September 2017. During the examination, the Veteran complained about flare-ups described as tender to the touch that can cause him to lose grip, weakness, stiffness, and locking and severe pain. Objective evidence of pain was noted (during passive motion on non-weight bearing testing of the right hand), which was found to cause some functional loss (finger flexion, finger extension, and opposition with thumb, difficulty gripping and holding objects, and loss of range of motion). For initial range of motion (ROM), abnormal/outside of normal range was indicated, but the ROM itself was found not to contribute to any functional loss. There was no indication of gap on initial ROM. Even after repeated use over time, no gap between the pad of the thumb and the fingers was found; nor was there a gap between finger and proximal transverse crease of the hand on maximal finger tension. Zero degrees flexion (that being fully extendable fingers) was documented for all fingers. However, with repeated use, the examiner did find pain and lack of endurance significantly limiting the Veteran’s functional ability. As for muscle strength testing of the right hand, normal muscle strength was documented. The examiner also found no muscle atrophy/deformity/ankylosis. While “less movement than normal due to ankylosis, adhesions, etc” was noted, this is not inconsistent with “no ankylosis” noted in the exam—because the former simply provides a list of all possible reasons as to why there is the less movement. There was no other functional impairment of the extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis in the right hand. The VA outpatient records do not contain findings any worse or different than those shown on the VA examinations discussed above.   Thus, based on the foregoing, the Board finds that an initial rating in excess of 10 percent for the Veteran’s right hand/thumb is not warranted under DC 5228-5010—as there is no evidence of record demonstrating limitation of the thumb related to this service-connected disability that results in a gap of more than 2 inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. In evaluating the Veteran’s increased rating claim, the Board must consider all applicable diagnostic codes, with an eye towards assigning the most favorable code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board declines to evaluate the Veteran’s service-connected disability under any of the diagnostic codes that pertain to favorable/unfavorable ankylosis (primarily, Diagnostic Codes 5216 through 5227), as there is no evidence of record demonstrating the presence of ankylosis in any finger. A higher rating also cannot be assigned for limitation of motion of index or ring finger (primarily, Diagnostic Codes 5229 through 5230)—as there is no evidence of record demonstrating such limitations. The Board also considered whether a higher rating could be assigned under DC 5003, which provides a 20 percent rating where the arthritis involves two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities is considered a group of minor joints, ratable as a major joint. 38 C.F.R. § 4.45. The 2017 VA examination showed arthritis in multiple joints of the right hand, which was a progression of the traumatic arthritis of the right thumb. However, this multiple involvement of the hand/finger joints is rated as a major joint, which warrants the 10 percent rating currently in place. Even if the Board could consider this multiple joint involvement as equivalent to arthritis affecting two or more minor joint groups, the Veteran still could not receive a 20 percent rating as the evidence does not show any incapacitating episodes. While he certainly has intermittent pain and other functional loss such as subjectively decreased strength or grip, there is no evidence suggesting he has been incapacitated due to these flare-ups. The Board must take into consideration the functional loss due to flare-ups of pain, fatigability, and weakness, and limitation of movement. The intent of the Rating Schedule is to “recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. The Board acknowledges the Veteran’s complaints of weakness, flare ups and loss of range of motion. There is objective evidence of pain on the right hand that caused some functional loss throughout the appeal period; the evidence is at least evenly balanced as to whether there is painful motion warranting at least a minimum compensable rating for the joint, which is a 10 percent rating under 38 C.F.R. § 4.59. However, the Board notes that the RO has considered the painful motion of the right hand/thumb and assigned a minimal compensable evaluation of 10 percent under DC 5228-5010, which is the rating that the Veteran currently has. The Veteran has no muscle atrophy in the hand, and demonstrates normal strength on clinical testing. In light of the above analysis, the Board finds no basis to raise the Veteran’s current 10 percent evaluation under Diagnostic Code 5228-5010, or award him another separate disability rating under any of the other applicable diagnostic codes for his right hand/thumb arthritis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel