Citation Nr: 18159008 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-59 395 DATE: December 18, 2018 ORDER 1. Entitlement to a compensable rating of 10 percent but no higher for arthritis of the left thumb is granted. 2. Entitlement to a compensable rating of 10 percent but no higher for arthritis of the right thumb is granted. REMAND Entitlement to service connection for intervertebral disc syndrome (IVDS) of the lumbar spine is remanded. FINDINGS OF FACT 1. During the entire period on appeal, evidence shows that the Veteran’s arthritis of the left thumb was manifested by x-ray evidence with painful motion; and no evidence of ankylosis, or a gap between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 2. During the entire period on appeal, evidence shows that the Veteran’s arthritis of the right thumb was manifested by x-ray evidence with painful motion; and no evidence of ankylosis, or a gap between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, for arthritis of the left thumb have been met. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5228. 2. The criteria for entitlement to a 10 percent rating, but no higher, for arthritis of the left thumb have been met. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to May 1990; January 1991 to April 1991; August 2005 to January 2006; August 2010 to February 2011, and May 2012 to October 2012. This matter come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In her Form 9, the Veteran declined an optional Board hearing. No subsequent hearing requests have been received. Entitlement to a compensable rating for arthritis of the left thumb and arthritis of the right thumb. The Veteran was service connected for degenerative arthritis of the left thumb, and degenerative arthritis of the right thumb in January 2014 with noncompensable ratings under diagnostic code 5228. Rating Principles A disability rating is determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage rating contained in the Rating Schedule represents, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206. The Veteran’s right and left thumb disabilities are currently rated under diagnostic code 5228. To warrant a compensable rating of 10 percent under diagnostic code 5228 there must be evidence of a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A rating of 20 percent requires evidence of a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Analysis The Veteran’s arthritis of the left thumb and right thumb do not meet the criteria for a compensable rating under diagnostic code 5228. The Veteran was afforded an in-person VA examination in October 2015. Upon examination, the Veteran was noted to have no gap between the pad of the thumb and the fingers in either her right or left hand. See October 2015 C&P Exam at 3, 4. However, she was noted to have abnormal range of motion of the thumbs, with maximum extension to zero degrees in the right and left thumbs, maximum flexion of 40 degrees in the right and left MCP joints, maximum flexion to 55 degrees in the right IP joint, and maximum flexion to 60 degrees in the left IP joint. The examiner noted that the Veteran’s range of motion contributes to functional loss by impacting the Veteran’s grip. The examiner also noted pain with use of hand, tenderness to palpation of the MCP joints, mild thenar atrophy and a scar at the base of the left thumb measuring 3 centimeters long and 0.1 centimeters wide. Finally, the examiner noted that imaging studies of the hands revealed degenerative or traumatic arthritis bilaterally. Consistent with the examiner’s findings, in a November 2012 letter, the Veteran’s physician indicates that the Veteran has a diagnosis of arthritis to bilateral thumbs. See July 2015 STR- Reserve STR at 27. Although the Veteran does not meet the criteria for a compensable rating under diagnostic code 5228, in evaluating the Veteran’s musculoskeletal disability, the Board must consider whether pain could significantly limit functional ability during flare-ups or when the joints are used repeatedly over time, as well as pain on range of motion. The Veteran has reported flare ups and pain on range of motion. See October 2015 C&P Exam. Further, the examiner has opined that the Veteran’s reduced range of motion causes functional loss resulting in difficulty with gripping. As the evidence reflects the Veteran has painful motion of the thumb she is entitled to the minimum compensable rating for the joint, which is 10 percent. 38 C.F.R. §§ 4.59. Accordingly, a 10 percent rating is warranted for each thumb, but no higher. A higher rating is not appropriate as there is no evidence of ankylosis or a gap between the Veteran’s thumb and finger. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5224, 5228. REASONS FOR REMAND The Veteran contends that she was injured in 2000 when she twisted her back during a military exercise playing war. She reports that she subsequently required surgery in May 2002. See October 2015 C&P Exam at 1. The Veteran was noted to have a lumbar disc bulge as early as August 2001. See July 2015 STR-Reserve STR at 118. Treatment records also confirm that the Veteran underwent lumbar surgery in May 2002. See July 2015 STR-Reserve STR at 108. The Veteran served a period of active duty service from May 2012 through October 2012. October 2013 treatment records note that the Veteran required no therapy, follow up or treatment since 2010. Evidence further noted a history of displacement of lumbar intervertebral disc without myelopathy, treated in 2002 with microdiskectomy, with no recurrent problems, treatment or therapy since 2002. See July 2015 STR- Reserve STR at 7. Despite the October 2013 treatment records, in an October 2015 VA examination, the Veteran was noted to have IVDS and reported symptoms of flare ups. She also had abnormal range of motion with reduced extension, rotation and lateral flexion, pain on examination and tenderness to palpation. The examiner reported that imaging showed arthritis of the thoracolumbar spine and that the Veteran’s back disability limits her ability to work. See October 2015 C&P Exam. The examiner offers no opinion as to whether the Veteran’s IVDS was incurred in or aggravated by military service. The record contains a significant period during which the Veteran’s IVDS is asymptomatic and the Veteran was afforded a waiver to continue in the Airforce Reserve. See July 2015 STR-Reserve at 7, 27, 37, 48, 62. Nonetheless, because the Veteran had a period of active duty service from May 2012 to October 2012, and a subsequent 2015 VA Examination shows abnormal range of motion, pain and flare ups, the record raises a reasonable possibility that the IVDS may have been aggravated by her military service. In addition to the Veteran’s active duty service, the evidence shows that she served in the Air Force National Guard, with the enlistment exam occurring in May 1989. See July 2015 STR-Reserve STR at 177. A November 2016 certificate of release or discharge from active duty indicates that the Veteran retired from the Air Force in July 2015 with a total of 26 years of service including 8 years of prior Reserve service. While the record establishes that the Veteran has had both Reserve service and active duty service, the record does not establish whether the Veteran had any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), which may qualify as active duty service. Accordingly, all periods of ACDUTRA and INACDUTRA should be confirmed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records. Verify all periods of ACDUTRA and INACDUTRA between May 1989 and July 2015. Please note that the Veteran had a different last name during part of her service. 2. After all periods of ACDUTRA and INACDUTRA have been verified, obtain an addendum to the October 2015 VA examination regarding the Veteran’s back disability. The examiner should opine whether it is at least as likely as not that the Veteran’s back disability was aggravated beyond its normal progression during the period(s) of active duty service from August 2005 to January 2006, August 2010 to February 2011, or May 2012 to October 2012. Please consider the Veteran’s duties when providing an opinion. A complete rationale for the opinion is requested. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel