Citation Nr: 20021330 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-26 429 DATE: March 25, 2020 ORDER Entitlement to a disability evaluation in excess of 10 percent for service-connected residuals of right thumb fracture is denied. REMANDED Entitlement to service connection for a vestibular dysfunction disorder (also claimed as vestibular dysfunction, dizziness, loss of balance, wooziness, and instability) is remanded. Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s residuals of right thumb fracture have been manifested by painful motion with a gap of less than one inch (2.5 cm) between the thumb pad and fingers, with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for service-connected residuals of right thumb fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to September 1969. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Atlanta, Georgia. The Board previously remanded this matter in August 2019. Entitlement to a disability evaluation in excess of 10 percent for service-connected residuals of right thumb fracture is denied. As a preliminary matter, the Board notes that the RO granted the Veteran an initial disability evaluation of 10 percent for his service-connected residuals of right thumb fracture effective April 11, 2016, in a January 2020 rating decision. Therefore, entitlement to a compensable disability evaluation is no longer an issue before the Board. It is presumed he is seeking the highest possible rating or maximum benefits available under the law; thus, the issue of an increased rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss contemplated by the VA regulations applicable to the musculoskeletal system unless it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (citing 38 C.F.R. § 4.40). Diagnostic Code 5228 applies to limitation of motion of the thumbs. 38 C.F.R. § 4.71a. Under DC 5228, a 0 percent rating is assigned for limitation of motion of the thumb with 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 assigned when there is a gap of one to two inches (2.5 cm 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. Id. There is no differentiation in the ratings assigned for the major and minor hands under DC 5228. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis, established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See id. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned for such involvement. Id. Ratings based on x-ray findings of arthritis will not be combined with ratings based on limitation of motion. Id., Note (1). In application of DC 5003, “painful motion of a . . . joint . . . caused by degenerative arthritis, where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.” See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). When rating a disability from arthritis, multiple involvement of the interphalangeal, metacarpal, and carpal joints of the upper extremities, and the interphalangeal, metatarsal, and tarsal joints of the lower extremities, are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45(f). With any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). The intent ot the Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; but see Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (holding that section 4.59 does not provide an independent basis for a compensable rating; rather, there must be an applicable diagnostic code providing for a compensable rating for the joint involved). The Veteran was seen regarding his right hand in October 2016 due to pain. See October 2016 VA Plastic Surgery Outpatient Note. During this visit, the Veteran had radiographs taken of the hand, suggesting right thumb carpometacarpal (CMC) joint arthritis, at which time he elected to proceed with a steroid injection that day. Id. He was also examined twice during the period on appeal for his residuals of right thumb fracture: once in May 2016 and once in December 2019. At the May 2016 examination, the Veteran reported that he had intermittent pain since the in-service fracture and that his pain increased when he used his thumb to apply pressure to or push an object but that it was alleviated at rest. He stated that he has decreased motion and clicking in the thumb which affected his ability to play sports recreationally. On examination, the Veteran was found to have limited motion of the thumb. His maximum extension of right thumb to the metacarpophalangeal (MCP) joint was 5 degrees and to the interphalangeal (IP) joint was 5 degrees (with the normal range being 0 degrees) and his maximum flexion of the right thumb to the MCP joint was 50 degrees and to the IP joint was 40 degrees (with the normal range being 100 degrees and 90 degrees, respectively). The examiner found that there was a gap of 2 cm between the pad of the thumb and the fingers and there was pain on opposition, along with use of the hand. The Veteran exhibited mild tenderness to palpation of the first metacarpal secondary to his diagnosed condition. The Veteran’s range of motion did not decrease upon repetitive use testing. Additionally, his muscle strength was found to be slightly reduced but he exhibited no muscle atrophy or ankylosis. The examiner also concluded that the Veteran’s condition impacts his ability to work, as he has pain with gripping and use of the hand. During the December 2019 examination, the Veteran reported that his right thumb “has remained the same” however, his right middle finger’s deformity, which is not service connected, appeared in 2016, which also contributed to the Veteran’s issues with his right hand. He reported difficulty picking up items due to flexion contraction of the thumb and middle fingers, difficulty carrying, especially baiting fishing hooks, and gripping. He stated he only gets pain in the thumb when used to apply pressure or push an object. He also noted that he is right hand dominant and has difficulty gripping, buttoning a shirt, opening jars, picking up packages or a bottle of juice due to his thumb. He did not report any flare-ups of the hand, finger, or thumb joints. On examination, he was again found to have limited motion of the thumb. However, his range of motion had not changed since the May 2016 examination. It was noted that there was a gap of 2 cm between the pad of the thumb and fingers, but that there was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner concluded that the Veteran’s limited motion caused difficulty gripping. Nevertheless, there was no pain noted with use of the hand or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Also, the Veteran’s range of motion did not decrease on repetitive use testing nor did the examiner observe any additional functional loss. Because the Veteran denied experiencing flare-ups of his disorder, the examiner could not conclude that his condition worsened or that he exhibited any changes in range of motion or functional ability during such times. However, the examiner found that the deformity of the Veteran’s right thumb and middle fingers did contribute to his disability. The Veteran’s muscle strength was slightly reduced, but the examination reflected no muscle atrophy or ankylosis of the right hand. The examiner noted that the Veteran’s previous imaging (discussed above) notes that the right thumb has CMC joint flexion issues. The Veteran did not state that he used any assistive devices for his hands due to the residuals of his right thumb fracture. Finally, the examiner concluded that the residuals of right thumb fracture impacted the Veteran’s ability to work as he has difficulty gripping, buttoning a shift, fishing, opening jars, and picking up packages or even a bottle of juice. The Board finds that as of April 11, 2016, the date of the Veteran’s claim, there is probative evidence of painful motion of the thumb based on the Veteran’s lay statements, the May 2016 examination findings, and the Veteran’s October 2016 CAPRI records. Under section 4.59, actually painful joints due to healed injury are entitled to the minimal compensable rating for the joint. Diagnostic Code 5228 provides for a minimal compensable rating of 10 percent for the thumb based on limitation of motion. 38 C.F.R. § 4.71a. These findings support the currently assigned 10 percent rating for residuals of the right thumb fracture, pursuant to section 4.59, based on painful motion. See Sowers, 27 Vet. App. at 478. The Board also notes that the Veteran’s thumb is rated based on painful limitation of motion, and that a rating under DC 5003 based on x-ray findings of arthritis may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a. Consequently, a rating under DC 5003 for arthritis of the thumb may not be assigned as a matter of law. However, the criteria for a 20 percent rating under DC 5228 for residuals of right thumb fracture have not been met or more nearly approximated. 38 C.F.R. § 4.71a. The VA examination reports show that although there is limited motion, there is no gap greater than one inch, let alone two inches, between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, including after repetitive testing. Indeed, even when there is a gap, but it is less than one inch, between the thumb pad and the fingers, a 0 percent rating is assigned under DC 5228. As discussed above, the 10 percent rating under DC 5228 is based on the application of section 4.59, rather than the rating criteria under that diagnostic code. Accordingly, the criteria for a rating higher than 10 percent for the Veteran’s service-connected residuals of right thumb fracture under DC 5228 have not been met. Regarding the DeLuca criteria, the VA examination reports show that the Veteran does not have additional limitation of motion of the thumb after repetitive testing. Furthermore, the Veteran did not report flare-ups of the thumb during the December 2019 examination. Accordingly, the examination is compliant with Sharp v. Shulkin in that flare-up testing is not required where the Veteran does not report flare-ups. The VA examination reports show that the Veteran does not have ankylosis of the thumb, which has not otherwise been diagnosed in the treatment records. As such, a separate or higher rating is not warranted under DC 5224, which pertains to ankylosis of the thumbs. See 38 C.F.R. § 4.71a. In sum, a disability evaluation in excess of 10 percent for the Veteran’s service-connected residuals of right thumb fracture is not warranted. Because the preponderance of the evidence shows that the criteria for ratings higher than 10 percent have not been met, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a vestibular dysfunction disorder (also claimed as vestibular dysfunction, dizziness, loss of balance, wooziness, and instability) is remanded. Regarding the Veteran’s claim of service connection for a vestibular dysfunction disorder, the Board notes that the Veteran has reported to his medical providers that he experiences vestibular episodes when experiencing tinnitus, a condition for which service connection has been granted. See July 2017 VA Neurology Consult; September 2017 VA Cardiology Outpatient Consult; February 2018 VA Cardiology Outpatient Consult; May 2018 VA Cardiology Outpatient Note. Thus, the Board finds that an additional opinion is necessary to determine if the Veteran’s service-connected tinnitus causes or aggravates his vestibular condition. 2. Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss is remanded. As a preliminary matter, the Board notes that the RO granted service connected for left ear hearing loss in a January 2020 rating decision. Hence, the issue before the Board is whether the Veteran is entitled to a compensable disability evaluation for his service-connected bilateral hearing loss. The Board notes that the Veteran has submitted two private audiograms from Michigan Ear Institute: one from September 2015 and one from January 2016. The U.S. Court of Appeals for Veterans Claims (Court) has held that when a private examination report “reasonably appears” to contain information necessary to properly decide a claim but is “unclear” or “not suitable for rating purposes,” and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report; (2) request that the claimant obtain the necessary information or clarify the report; or (3) explain why such clarification is not needed. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). Here, clarification of the reports is required. Therefore, the Board finds that a remand is necessary to clarify the private audiograms. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the December 2019 vestibular conditions examination and request an addendum opinion. If this examiner is not available, forward the claims file to another examiner with the appropriate clinical expertise. If the examiner determines that an additional in-person examination would be beneficial, one is to be arranged. The entire claims file, including this remand, must be provided to the examiner, who must note its review. After a complete review of the record, the examiner is asked to answer the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed vestibular condition(s) is/are either (i) caused or (ii) aggravated by his service-connected tinnitus. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. If the examiner determines that the Veteran’s vestibular disorder(s) is/are less likely than not caused or aggravated by his service-connected tinnitus, the examiner should discuss what other factor(s) caused the disorder(s). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 2. Make arrangements for the examiner who tested the Veteran’s hearing at Michigan Ear Institute in September 2015 to review the September 2015 test results conducted and address the following: Whether (1) s/he is a state-licensed audiologist; (2) the speech discrimination scores reported (i.e., 92 percent in the right ear and 88 percent in the left ear) were the results of the Maryland CNC controlled speech discrimination test; and (3) a puretone audiometry test was conducted. (Continued on next page) 3. Make arrangements for the examiner who tested the Veteran’s hearing at Michigan Ear Institute in January 2016 to review the January 2016 test results conducted and address the following: Whether (1) s/he is a state-licensed audiologist; (2) the speech discrimination scores reported (i.e. 72 percent in the right ear and 84 percent in the left ear) were the results of the Maryland CNC controlled speech discrimination test; and (3) a puretone audiometry test was conducted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.