Citation Nr: 20007601 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 11-18 586 DATE: January 29, 2020 ORDER Entitlement to an initial rating of 20 percent for residuals of a right thumb injury with degenerative joint disease (DJD) is granted. FINDING OF FACT During the period on appeal, the Veteran’s right thumb injury with DJD manifested with limited flexion and functional loss that is comparable to a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for an initial rating of 20 percent for residuals of a right thumb injury with DJD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Marine Corps from June 1972 to December 1972 and in the Navy from March 1977 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this issue in March 2014, when it remanded for further development. The Board again considered the issue in November 2014, when it denied a rating in excess of 10 percent for the service-connected right thumb disability. The Veteran appealed the November 2014 Board decision to the Court of Appeals for Veterans Claims (Court). In December 2015, the Court granted a Joint Motion for Partial Remand, vacating the November 2014 Board decision as to the right thumb and remanding for actions consistent with the Joint Motion for Partial Remand. The Board again considered the issue in April 2016, April 2017, December 2017, and June 2019, when it remanded for additional development. Finally, a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is raised by the record in an increased rating claim when the Veteran asserts unemployability due to the service-connected disability under consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted that he is unemployable due to his service-connected right thumb disability, and a TDIU is not raised by the record. As such, further consideration is not warranted. 1. Legal Standards Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 2. Analysis The Veteran contends that he is entitled to an increased rating for residuals of a right thumb injury with DJD of the first MCP joint. The April 2009 rating decision on appeal granted entitlement to service connection for the right thumb disability and rated it as 10 percent disabling under Diagnostic Code 5003-5228, effective December 26, 2007. The rating assignment has been continuously on appeal since that time. Accordingly, this is a claim for a higher initial rating for the right thumb disability. Under Diagnostic Code 5228, a rating of 20 percent is warranted where there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Alternatively, under Diagnostic Code 5224, a 20 percent rating is warranted for unfavorable ankylosis of the thumb. The parties to the Joint Motion for Partial Remand agreed that the Board failed to consider relevant evidence regarding functional loss or impairment. Specifically, the parties noted that the Board did not discuss evidence of additional functional loss documented in the July 2014 VA examination. Additionally, the Board notes that the Veteran has been afforded additional VA examinations since the time of the December 2015 Court remand, which are also for consideration at this time. The Veteran was provided VA examinations and/or opinions in March 2009, July 2014, June 2016, May 2017, March 2018, and March 2019. During the period on appeal, his right thumb flexion was limited at worst to 20 degrees at the MCP joint and to 10 degrees at the IP joint. See March 2019 VA examination. Additionally, the May 2017 VA examiner found that the Veteran’s MCP joint was ankylosed at 35 degrees. The Veteran had a gap between his thumb and index finger of 3 centimeters in May 2017 and 2 centimeters in March 2019, with no gap demonstrated at the other examinations. Accordingly, the Veteran did not demonstrate unfavorable ankylosis or a gap of 5.1 centimeters or more upon objective testing. During the period on appeal, he consistently demonstrated full extension of his thumb joints. However, the Veteran reported additional functional loss during flare-ups. He consistently reported that during flare-ups, his hand is incapacitated by pain for 12 hours or more, such that he cannot use his right hand to hold tools at work. The June 2016 and May 2017 VA examiners noted that the Veteran wore a protective glove to help protect against irritants that triggered flare-ups. Additionally, the Veteran has consistently showed decreased hand strength on testing, which the June 2016 and March 2019 VA examiners attributed to his service-connected right thumb disability. The Board acknowledges the March 2018 and March 2019 VA examiners’ opinions that the Veteran’s flare-ups did not result in additional functional loss during the period on appeal. However, the Board finds that the Veteran’s results on strength testing and consistent reports of incapacitating flare-ups, which are corroborated by his documented use of protective gear, show that his disability picture more closely approximates the functional loss represented by the 20 percent rating under Diagnostic Code 5228. Accordingly, the Board finds that an increased rating of 20 percent under Diagnostic Code 5228 is warranted. This is the highest rating possible under this diagnostic code. The Board has considered whether the Veteran is entitled to a separate or higher rating under other relevant diagnostic codes. Although the May 2017 VA examiner found ankylosis of the MCP joint at 35 degrees, such favorable ankylosis would only support a 10 percent rating under Diagnostic Code 5224. Furthermore, although functional loss further limits the Veteran’s use of the right hand, as described above, the evidence does not show that such functional loss is comparable to amputation. Rather, the Veteran has consistently reported that he is able to use his right hand when he is not experiencing a flare-up. Furthermore, the July 2014, June 2016, May 2017, and March 2019 VA examiners all opined that the Veteran does not functional loss of his right thumb equivalent to an amputation. The Board acknowledges the Veteran’s argument, advanced by his then representative in an August 2015 brief, that he should be rated separately for muscle weakness and bony deformity, suggesting Diagnostic Codes 8512, 8514, and/or 7899-7804. However, the complaints of pain and weakness have already been utilized to support the grant of a 20 percent rating under Diagnostic Code 5003-5228. Thus, higher or separate ratings under other diagnostic codes, to include Diagnostic Codes 8512, 8514, and 7899-7804, are not warranted. 38 C.F.R. § 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Accordingly, the Board has already applied the benefit of the doubt in granting a 20 percent initial rating under Diagnostic Code 5003-5228 for the residuals of a right thumb injury with DJD, and further application of the doctrine is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Frasch 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.