Citation Nr: 20004726 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-19 412 DATE: January 21, 2020 ORDER An initial 10 percent rating, but no higher, effective December 9, 2008 to January 26, 2010 for right thumb tendonitis is granted. From March 1, 2010, a rating in excess of 10 percent for right thumb ankylosis (previously rated as right thumb tendonitis) is denied. FINDINGS OF FACT 1. Prior to January 27, 2010, resolving reasonable doubt, the Veteran’s right thumb disability results in painful motion with functional impairment; however, a gap of more than two inches between the thumb pad and the fingers has not been shown. 2. From March 1, 2010, the Veteran has favorable ankylosis of the right thumb. CONCLUSIONS OF LAW 1. Effective December 9, 2008 to January 26, 2010, the criteria for an initial 10 percent rating, but no higher, for a right thumb disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 and 5024-5228. 2. From March 1, 2010, the Veteran has been in receipt of the maximum rating for favorable ankylosis of the right thumb. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5224. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. This matter was previously before the Board in June 2014, at which time the Board remanded the above issue of entitlement to an initial compensable rating for right thumb tendinitis for further development. The AOJ previously granted a temporary total rating from January 27, 2010 to February 28, 2010. As this is a complete grant for this period, the Board does not further review this time period. The Veteran testified at the March 2013 and August 2019 Travel Board hearings before two of the undersigned; transcripts of both hearings are of record. Pursuant to a holding by the United States Court of Appeals for Veterans Claims (Court), during the course of the August 2019 Board hearing, the Veteran specifically waived his right to a third hearing. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Therefore, in accordance with Arneson, an additional hearing is not required. At the outset, the Board finds that the Veteran does not have an associated neurologic disability related to the service-connected right thumb. During the appellate period, the Veteran at times asserted that he had radiating nerve pain of his right arm. However, the competent medical evidence during the pendency of this appeal, consistently reported that this nerve pain is not related to his right thumb disability. For example, an October 2010 VA plastic surgery outpatient note reported that the Veteran complained of pain in the right hand and arm. The clinician wrote that the Veteran likely had carpal tunnel syndrome. A June 2011 VA plastic surgery outpatient note reported that the Veteran’s complaints of pain radiating up his right arm were consistent with carpal tunnel pain. A November 2011 VA nerve conduction study supported the clinician’s assessment of a separate neurological disorder by finding mild median neuropathy at the right wrist to support a diagnosis of carpal tunnel syndrome and electrophysiological evidence to support a diagnosis of right ulnar neuropathy. A November 2011 VA plastic surgery outpatient note reported that the Veteran understood that his carpal tunnel syndrome was distinct from the arthritic condition at the right thumb metacarpophalangeal joint. Similarly, the September 2012 VA examination further explained that the Veteran’s complaints of nerve pain were due to right carpal tunnel and right ulnar nerve entrapment and were not related to right thumb tendonitis. Additionally, a November 2016 VA pain consult note further reported that the Veteran had paresthesia in the dorsal thumb and distal wrist. The clinician’s assessment was that this nerve pain was due to median neuropathy, ulnar neuropathy, and cervical radiculitis. Consequently, the etiological cause of this nerve pain was non-service-connected median neuropathy, ulnar neuropathy, and cervical radiculitis. The Board acknowledges the Veteran’s complaints in the record regarding neurological symptoms, but finds the record as a whole does not support a diagnosed objective neurological abnormality that is part and parcel of the Veteran’s right thumb disability. In reaching its decision, the Board has considered the evidence in the record regarding the Veteran’s lay reports of nerve pain and his belief that this is related to his right thumb disability. The Board acknowledges that the Veteran is competent to testify to the presence of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the etiological cause of neurologic pain is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Thus, the Veteran’s lay statements in this regard are not competent or probative evidence supporting this contention, and therefore the preponderance of evidence is against the assignment of a separate rating for objective neurological abnormalities. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Prior to January 27, 2010 The Veteran is in receipt of a noncompensable rating prior to January 27, 2010 for the right thumb tendonitis under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5024-5228. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires 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. DC 5024 is for tenosynovitis. Under this diagnostic code, the disability is rated on limitation of motion of the affected part, or as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Under DC 5228, for both the major and minor hands, a noncompensable rating is warranted when there is 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 10 percent rating is warranted, regardless of whether the afflicted thumb is on the major or minor hand, where there is 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. A 20 percent rating is warranted where the gap is more than two inches (5.1 cm.). 38 C.F.R. § 4.71a, DC 5228. VA treatment records note complaints of right thumb pain. Of note, an August 2009 VA orthopedic clinic note reported that right hand grip strength was fair, there was a loss of 5 to 10 degrees in extension, there was flexion to 60 to 70 degrees, there was 1+ instability of the ulnar collateral ligament of the thumb, and there was tenderness to palpation of the thumb and slight swelling in the metacarpophalangeal joint. The sensory and motor examination was normal for the right upper extremity. The clinician opined that the thumb “appears to be clinically down” in terms of inability to fully extend. The note further provided that X-rays of the thumb showed early squaring and degenerative changes. The impression was traumatic arthritis of the right thumb. The November 2009 VA examination found no gap between the thumb pad and fingers of the right hand. There was no objective evidence of pain found on range of motion testing of the right hand and no additional loss of motion after repetitive use testing. There was no ankylosis. It was the examiner’s ultimate opinion that there was no functional loss or functional impairment due to the right thumb disability. Based on a careful review of the subjective and medical evidence, and resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the minimum compensable rating of 10 percent is warranted for the Veteran’s service-connected right thumb disability. The evidence is in equipoise between the August 2019 VA treatment node and the November 2009 VA examination regarding the presence of arthritis and documented limitation of motion. 38 C.F.R. § 4.3. Therefore, the Board resolves reasonable doubt and finds that the right thumb disability was manifested by arthritis, limited range of motion, decreased strength, instability and swelling. Accordingly, a minimum 10 percent disability rating based on symptomatology affecting the right thumb is warranted. As the record reflects that the disability did not manifest by a gap of more than two inches, to include when considering functional impairment, a rating in excess of 10 is not warranted. Accordingly, prior to January 27, 2010, a 10 percent rating, but no higher, under DC 5228 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From March 1, 2010 The Veteran is in receipt of a 10 percent disability rating from March 1, 2010 for right thumb ankylosis under 38 C.F.R. § 4.71a, DC 5224 due to undergoing a surgical procedure to ankylose the thumb. Under DC 5224, for both the major and minor hands, a 10 percent rating is warranted for favorable ankylosis of the thumb, and a maximum 20 percent rating is warranted for unfavorable ankylosis of the thumb. 38 C.F.R. § 4.71a, DC 5224. A note to DC 5224 indicates that the rater shall also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. In doing so, in evaluating ankylosis of the thumb: (i) if both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate such as amputation at the metacarpophalangeal joint or through the proximal phalanx; (ii) if both the carpometacarpal and interphalangeal joints are ankylosed, evaluate such as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) if only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate such as unfavorable ankylosis; and (iv) if only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of two inches or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate such as favorable ankylosis. 38 C.F.R. § 4.71a. Since the Veteran has not claimed and the record does not support symptoms in multiple digits and the Veteran is only service-connected for one digit (the right thumb), and the evidence does not otherwise suggest involvement of other digits, the rating schedules for “Multiple Digits: Unfavorable Ankylosis” and “Multiple Digits: Favorable Ankylosis” are inapplicable. In addition, the October 2014 VA examination, which included radiographic imaging, demonstrates that there is no ankylosis of the carpometacarpal joint and thus the regulatory definition regarding unfavorable ankylosis is not satisfied. The October 2014 VA examination, the most favorable examination during this period in support of the appeal, reported that the Veteran experienced ankylosis in the metacarpophalangeal joint and the interphalangeal joint of the right thumb in extension. An October 2014 X-ray showed near complete fusion due to arthrodesis of the first metacarpophalangeal joint with stable position of the metallic wire. Range of motion testing indicated that there was no gap between the thumb pad and the fingers of the right hand. Based on the criteria set forth in 38 C.F.R. § 4.71a regarding ankylosis, the Board finds that this is favorable ankylosis of the right thumb. Accordingly, 10 percent is the maximum allowable rating. The Board has considered the holding of Sharp v. Shulkin, and observes that a higher rating is not warranted due to the Veteran’s reported flare-ups. 29 Vet. App. 26 (2017). Namely, at the September 2012 and October 2014 VA examinations the Veteran reported flare-ups as increased pain. The rating criteria are clear that no higher rating can be assigned in the absence of unfavorable ankylosis. Here, with no involvement of the carpometacarpal joint and no suggestion of unfavorable ankylosis in the record, there is no basis for a higher rating when considering flare-ups as reported. Similarly, documentation in the record regarding difficulty with tasks in the right hand that require full strength, prolonged whole hand gripping, and fine manipulation using the right thumb, does not warrant a higher rating. The 10 percent rating adequately compensates the Veteran for his right thumb symptomatology, to include these functional limitations, because it contemplates that ankylosis has fixed the thumb in one position. The Board has considered the lay statements in the record regarding the Veteran’s thumb disability, however, they do not support a basis for assignment of a higher rating. The Veteran is competent to report his observations, including reports of pain and decreased dexterity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such statements are consistent with the rating assigned. The Veteran is already in receipt of a compensable rating for limitation of motion due to favorable ankylosis, his lay complaints are fully contemplated by the current rating assigned. See 38 C.F.R. § 4.59. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of and ankylosed metacarpophalangeal joint that have been clinically observed and documented in the evidence of record. Pertinently, pain alone is not sufficient to warrant a higher rating; as pain, in itself, does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 40-41 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. The Board considered the DeLuca factors, however, as reflected above, when considering functional impairment, the record shows there was not more than a two inch gap prior to the finding of ankylosis or a finding of unfavorable ankylosis. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). To the extent that the Veteran and his representative have indicated symptomatology greater than that found on examination, the clinical findings of a trained medical professional are found to be of greater probative weight than their general lay assertions. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Similarly, while the Veteran contends that he believes he has unfavorable ankylosis, there is a specific regulatory definition set forth in 38 C.F.R. § 4.71a and the competent medical evidence of record demonstrates that he does not have the underlying pathology to satisfy this definition.   In sum, from March 1, 2010, the preponderance of evidence is against a rating in excess of 10 percent for favorable ankylosis of the right thumb under DC 5224. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Kristy Zadora Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AD The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.