Citation Nr: 20037085 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 15-35 073 DATE: June 1, 2020 ORDER Entitlement to a disability evaluation of 40 percent for postoperative fracture of the right thumb with carpometacarpal fusion and degenerative joint disease is granted. Entitlement to a disability evaluation of 50 percent for right radial nerve neuritis is granted. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to a right ankle disorder is remanded. Entitlement to a total disability evaluation due to individual unemployability (TDIU) prior to June 21, 2011 is remanded FINDINGS OF FACT 1. The Veteran’s right thumb disability has resulted in near total loss of ability to use the hand to perform occupational tasks. 2. The Veteran’s right radial nerve neuritis is manifested by severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 40 percent for postoperative fracture of the right thumb with carpometacarpal fusion and degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 5224-5152 (2019). 2. The criteria for entitlement to a disability evaluation of 50 percent for right radial nerve neuritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 8514 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to October 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in August 2019, at which time they were remanded for additional development. They have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. 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). 1. Entitlement to a disability evaluation in excess of 30 percent for postoperative fracture of the right thumb with carpometacarpal fusion and degenerative joint disease Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, 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. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). The Veteran’s right thumb disability has been evaluated under DC 5224, which applies to ankylosis of the thumb, with a maximum available rating of 20 percent for unfavorable ankylosis, but further directs the adjudicator to consider whether evaluation under DC 5152, which deals with amputation, is appropriate given the degree of limitation. In this case, the Veteran is in receipt of a 30 percent evaluation under DC 5152, which rating is assigned where the thumb has been amputated at the metacarpophalangeal joint or through the proximal phalanx. A 40 percent evaluation is the highest available under DC 5152, and is assigned for amputation with metacarpal resection. The Board notes that the Veteran’s right thumb has not been amputated; rather, his thumb disability has been evaluated under the code for amputation because of the overall degree of limitation conferred by his disability. The medical record reflects severe restriction in the Veteran’s capacity to use his right hand due to his thumb disability. VA medical records consistently note that the Veteran is essentially unable to use the right hand to perform any kind of occupational task. That assessment is supported by findings from the Veteran’s February 2020 VA examination, which identified difficulty holding and grasping objects, along with thumb pain on use, weakened movement of the right hand, tenderness to palpation, and decreased grip strength. The Veteran’s thumb was noted to be ankylosed in extension, and the examiner concluded the disability would be expected to “significantly impact [use of the right hand] due to…pain and fusion,” adding the Veteran “is using the left hand mostly instead.” The record does not suggest significant worsening of the Veteran’s condition over the course of the appeal period. In other words, the Veteran has been essentially unable to use his right hand in the performance of any kind of occupational task for the entirety of the appeal period. Thus, the Board finds that entitlement to the highest available rating under DC 5152 is appropriate by analogy. The functional capacity of the Veteran’s right hand does not appear to be significantly different than it might be had he undergone amputation with metacarpal resection. Accordingly, the Board finds that entitlement to a 40 percent evaluation under DC 5152, the highest available under that code, is warranted for the entire appeal period. 2. Entitlement to a disability evaluation in excess of 30 percent for right radial nerve neuritis The Veteran’s right radial nerve condition has been evaluated under DC 8514, which deals with diseases of the radial nerve. He is in receipt of a 30 percent evaluation, which denotes moderate incomplete paralysis of the radial nerve in the dominant extremity (the Veteran is right hand dominant). A 50 percent evaluation is warranted for severe incomplete paralysis of the dominant arm, and a 70 percent evaluation is warranted for complete paralysis of the dominant arm. The medical record reflects symptoms including numbness and paresthesias in the lower right arm and hand, along with loss of muscle strength and pain in the arm generally, (which symptom appears to be separate etiologically from the hand pain attributable to the Veteran’s thumb disability.) A VA examiner with whom the Veteran met in February 2020 confirmed the Veteran’s right radial neuritis confers several severe symptoms, including constant pain, severe paresthesias, severe numbness, and significant loss of muscle strength in the right arm. Nevertheless, the examiner characterized the Veteran’s disability as moderate incomplete paralysis of the right radial nerve. The Board finds justification for a higher rating warranted in this case. As noted, the evidence of record suggests constant and severely limiting symptoms, and the VA examiner himself confirmed the chief symptoms associated with this disability were severe. As such, the Board finds that entitlement to a 50 percent evaluation for severe incomplete paralysis is warranted. There is no basis for a higher rating. The 70 percent evaluation for complete paralysis is reserved for disability characterized by drop of hand and fingers due to complete paralysis of the radial nerve, wrist and fingers perpetually flexed, and other manifestations resulting in essentially complete loss of the ability to control the movements of the hand. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a 50 percent evaluation, but no higher, is warranted for right radial neuritis for the entire appeal period. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disorder is remanded. The Veteran received a VA examination to explore the etiology of his right ankle disability in February 2020, the examiner opining that his current right ankle disability was unrelated to service given the absence of complaints related to the ankle during service, and the latency between separation and first diagnosis of an ankle condition. However, the examiner also appears to have indicated that the Veteran had a right ankle disability which clearly and unmistakably existed prior to service, and which was clearly and unmistakably not aggravated beyond its normal progression by active duty service. It is not entirely apparent that this notation is a mere scrivener’s error, or an outright misunderstanding of the examination report form; the examiner indicates that there was no aggravation of the pre-existing condition in service, although there is no explanation of this conclusion beyond the restatement that there were no ankle-related complaints during the Veteran’s period of service. On remand, a new VA examination must be conducted, and clarity obtained as to the nature and etiology of the Veteran’s right ankle disability, to include whether an ankle condition predated service, and if so, whether there was aggravation of that condition. 2. Entitlement to service connection for a left ankle disorder, to include as secondary to a right ankle disorder is remanded. The Veteran has consistently argued that his left ankle condition is secondary to his right ankle condition. Because a remand is necessary to determine the etiology of the Veteran’s right ankle condition, the matter of service connection for a left ankle disorder must be remanded as well, as the matters are inextricably intertwined. 3. Entitlement to a TDIU prior to June 21, 2011 is remanded Because a decision on the above-enumerated service connection claims could significantly impact a decision on the issue of entitlement to a TDIU prior to June 21, 2011, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to explore the etiology of his ankle disorders. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Please identify by medical diagnosis any disorders afflicting the ankles. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the disorder began in service or is otherwise related to service. If it is determined that a right ankle disability clearly and unmistakably predated entry into active duty service, the examiner should state whether that condition was clearly and unmistakably not aggravated beyond its normal course of progression by any aspect of active duty service. With respect to the left ankle, the examiner should opine whether a left ankle condition has been caused or aggravated beyond its normal course of progression by a right ankle condition. 3. Readjudicate the issues remaining on appeal, including the issue of entitlement to a TDIU prior to June 21, 2011. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, Associate Counsel 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.