Citation Nr: 21001648 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-45 369 DATE: January 11, 2021 ORDER Entitlement to an initial 10 percent evaluation, but no higher, for right thumb degenerative arthritis and tendonitis is granted. FINDINGS OF FACT 1. The Veteran’s right thumb degenerative arthritis and tendonitis is not productive of limitation of motion of the thumb with a gap or more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; unfavorable or favorable ankylosis of multiple digits of one hand; ankylosis of the thumb; or symptoms consistent with amputation of the fingers. 2. The Veteran has been shown to have degenerative arthritis of the right thumb and painful motion. CONCLUSION OF LAW The criteria for an initial 10 percent evaluation, but no higher, for right thumb degenerative arthritis and tendonitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to March 1983 and from July 2003 to September 2007. She had additional service in the District of Columbia Army National Guard, including the Active Guard Reserve (AGR), with verified periods of active duty for training from July 1995 to March 1997 and from July 1997 to July 1998 and inactive duty for training from March 1997 to July 1997. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision. In that rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for right thumb degenerative arthritis and tendonitis and assigned a noncompensable evaluation, effective from October 1, 2007. The Veteran appealed the initial noncompensable evaluation assigned for her service-connected right thumb disability. In January 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In June 2016 and July 2018, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s right thumb degenerative arthritis and tendonitis is currently assigned a noncompensable evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under Diagnostic Code 5228, pertaining to limitation of motion of the thumb, a 10 percent evaluation is assigned for a gap of one to two inches (2.5 to 5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent evaluation is warranted for a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Upon review, the Board finds that the Veteran’s right thumb does not exhibit the required limitation of motion for a 10 percent rating or higher. In fact, she was able to make a full fist during an August 2008 VA examination. She was also able to make a fist with no gap between the thumb pad and fingertips during July 2016 and August 2019 VA examinations. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. The August 2019 VA examiner further indicated that range of motion testing was the same for both active and passive testing and in weight-bearing and nonweight-bearing, and there was no additional functional loss or range of motion during repetitive-use testing. There was also no fatigue, weakness, lack or endurance, or incoordination noted during the physical examination. Nor did the Veteran report having any flare-ups. The Board has also considered whether a compensable rating is warranted under the other relevant finger codes, which require unfavorable or favorable ankylosis of multiple digits of one hand, ankylosis of the thumb, or symptoms consistent with amputation of the fingers. See Diagnostic Codes 5153 to 5156 and 5216 to 5227. However, the August 2008 VA examiner noted that the Veteran demonstrated MCP flexion from 0 to 90 degrees, PIP flexion from 0 to 100 degrees, and DIP flexion from 0 to 75 degrees. The July 2016 VA examiner reported that the Veteran had right thumb MCP flexion to 100 degrees and IP flexion to 90 degrees. Moreover, the July 2016 and August 2019 VA examiners noted that the Veteran had no ankylosis of the thumb and/or fingers of her right hand. Further, the July 2016 and August 2019 VA examiners each reported that the Veteran did not have functional impairment of the right hand such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. Nevertheless, the Board notes that the evidence shows that the Veteran has degenerative arthritis of the right thumb, and she has reported having constant pain that impacts her ability to write. See e.g. July 2016 and August 2019 VA examination reports. Although pain did not result in or cause functional loss, the August 2019 VA examiner indicated that pain was noted during the physical examination. Therefore, the Board finds that the Veteran meets the requirements for a minimum compensable evaluation under 38 C.F.R. § 4.59 for painful motion and degenerative arthritis under Diagnostic Code 5003. See also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (a minimum compensable rating pursuant to § 4.59 may be warranted where joint pain, alone, exists). Accordingly, the Board finds that a 10 percent evaluation for the Veteran’s service-connected right thumb disability is warranted. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.