Citation Nr: 21004419 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-35 329A DATE: January 27, 2021 ORDER An evaluation in excess of 20 percent from March 3, 2014 through November 30, 2016 for residuals of fracture midshaft 4th metatarsal (healed), probable healed proximal 5th metatarsal with nonunion, and 3rd metatarsal base, left foot, with deformity/malunion (“left foot disability”) is denied. An evaluation in excess of 20 percent from March 1, 2017 through January 15, 2019 for left foot disability is denied. An evaluation in excess of 20 percent from May 1, 2019 through August 23, 2019 for left foot disability is denied. An increased rating of 30 percent, but no higher, for left foot disability from August 23, 2019, is granted. An initial 10 percent rating for osteoarthritis of the first metacarpal phalangeal joint, left hand (“left hand disability”) under diagnostic code 5010-5228 is granted. An increased compensable rating for the fracture of the mid-shaft fifth metacarpal (healed) under diagnostic code 5230 is denied. FINDINGS OF FACT 1. The Veteran’s left foot disability for the period from March 3, 2014 through November 30, 2016 most closely approximates a moderately severe foot injury. 2. The Veteran’s left foot disability for the period from March 1, 2017 through January 15, 2019 most closely approximates a moderately severe foot injury. 3. The Veteran’s left foot disability for the period from May 1, 2019 to August 23, 2019 (Board Hearing date) most closely approximates a moderately severe foot injury, and from August 23, 2019 most closely approximates a severe foot injury. 4. The Veteran’s left foot disability for the period from February 20, 2020 most closely approximates a severe foot injury. 5. The most probative evidence reaches the level of equipoise as to whether the Veteran’s left hand disability manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left foot disability for the period from March 3, 2014 through November 30, 2016 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for a rating in excess of 20 percent for left foot disability for the period from March 1, 2017 through January 15, 2019 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, DC 5284. 3. The criteria for a rating in excess of 20 percent for left foot disability for the period from May 1, 2019 to August 23, 2019 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, DC 5284. 4. The criteria for a rating of 30 percent for left foot disability from August 23, 2019 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, DC 5284. 5. The criteria for a rating in excess of 30 percent for left foot disability for the period from February 20, 2020 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, DC 5284. 6. The criteria for an initial 10 percent rating for left hand disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5228. 7. The criteria for an initial compensable rating for the residuals of the fracture of the mid-shaft 5th metacarpal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 1975 to August 1979. In August 2019, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board notes that the two periods of appeal for which a 100 percent rating was granted for the left foot disability (from November 30, 2016, to February 28, 2017, and from January 15, 2019, to April 30, 2019) are not on appeal. A 100 percent rating is the maximum rating available; as such, these periods of time are not on appeal. The Board also notes that the Veteran appealed an issue of restoration of a grant of service connection for tinnitus, which was severed in a June 2018 rating decision. A Statement of the Case (SOC) was issued in September 2019, and the Veteran did not perfect an appeal of the issue by filing a substantive appeal (VA Form 9). As such, the claim is not before the Board. Increased Ratings If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, 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, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran’s level of disability from the time the increased rating claim was filed in October 2012. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. Increased Ratings for Left Foot Disability Diagnostic Code 5284 applies to other foot injuries. Under the code, a 10 percent evaluation is provided for a “moderate” foot injury. A 20 percent evaluation is provided for a “moderately severe” foot injury. A 30 percent evaluation is provided for a “severe” foot injury. A note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "mild," "moderate," "marked," "severe," and "pronounced" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension.” See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree.” See www.merriam-webster.com/dictionary/severe. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. “Loss of use of a foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Under 38 C.F.R. § 4.63, what constitutes loss of use of a foot includes extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop, equally well served by amputation. VA’s General Counsel has stated that (DC) 5284 is more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, the VA General Counsel concluded that, depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). See VAOPGCPREC 9-98. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. The Veteran’s left foot disability for the period from March 3, 2014 through November 30, 2016 has a disability rating of 20 percent, for moderately severe, under DC 5284. The Veteran contends that he is entitled to an evaluation in excess of 20 percent from March 3, 2014 through November 30, 2016. The earliest VA medical center records in the file date back to May 2013, when the Veteran visited the Albuquerque center for left foot pain. He told medical staff that he had pain throughout the day, and that he normally walked 1 to 1.5 miles in the morning. The Veteran had no special footwear and wanted to know what could be done for his foot pain. The center reviewed X-rays and noted that the Veteran had left foot, small inferior calcaneal enthesophyte, somewhat flat feet, healed fracture midshaft fourth metatarsal, probable healed fracture proximal third of fifth metatarsal, and possibly third metatarsal base. (The fractures were originally diagnosed while the Veteran was in service in August 1975, following an accident in bootcamp.) The Albuquerque center recommended a home program that included stretching hamstring and calf and strengthening eversion. Also, in the Albuquerque file, is a Disability Benefits Questionnaire (DBQ) dated October 8, 2013. Notably there is no hammer toe; no assistive device used (i.e., cane); examiner unable to estimate the additional loss of functionality during flare-ups. The Veteran reported he worked in culinary arts but the last time he worked was 3 years ago. He got laid off. His foot pain is worse with standing for more than an hour, going up and down stairs, and walking more than 3 miles. When it's cold his foot pain is worse. A VA medical center podiatry consult on 03/03/2014, reflects that the Veteran said he had been having foot pain for several years, takes Motrin for his foot pain, but it does not help, the foot pain wakes him in the middle of the night, and it prevents him from some daily living activities. The next VA examination in the file is from January 2015. When asked about functional loss during the January 2015 VA examination, the Veteran had this to say: “I usually walk up to 3 miles a day. I haven’t been able to do that for the last month or so because of my left foot pain. I can’t work in my garden. It’s hard to keep active.” The January 2015 VA examiner described the severity of the disability to the left side as moderate, that the left foot disability did not chronically compromise weight bearing ability, and that the condition requires supports, custom orthotic inserts or shoe modifications. During the 2015 examination, the examiner was able to confirm pain on weight-bearing, deformity, and disturbance of locomotion due to the left foot residuals. Also, the examiner was unable to measure functional loss due to flare-ups and when the foot is used repeatedly over a period, due to the short length of the examination. At the time of this examination the Veteran used a cane regularly to assist with normal mode of locomotion for left foot pain. Due to the Veteran's foot condition, functional impairment was not such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Based on March 2014 x-rays comparing left and right lower extremities, the examiner noted the deformities of the fourth and fifth metatarsals from healed fractures. Based on the 2015 VA examination, 2013 DBQ, and medical records from the Veteran’s visits to the Albuquerque VA medical during the timeframe, using DC 5284; the Board finds “moderately severe” best approximates the Veteran’s disability level for the period from March 3, 2014 (start date of initial compensable rating of 20%) to November 30, 2016 (1st foot operation), and finds an evaluation in excess of 20% disabling for the Veteran’s left foot disability is not warranted. There is no indication the condition was severe. While the Veteran reported pain, the examiner reviewed the file an examined the Veteran and concluded the condition was moderate in nature. Furthermore, it was not found to interfere with weight bearing during this period. 2. The Veteran’s left foot disability for the period from March 1, 2017 through January 15, 2019 has a disability rating of 20 percent, for moderately severe, under DC 5284. The Veteran contends that he is entitled to an evaluation in excess of 20 percent from March 1, 2017 through January 15, 2019. During the second period under consideration for an increased left foot disability rating, the Veteran had his most recent VA examination prior to the period’s start date, in January 2015. There is no new VA examination in this timeframe on which to base an increased rating. This period is between two hospitalizations, when the Veteran underwent corrective left foot surgeries, and received 100% disability. There are some VA medical center reports that give some indication of the Veteran’s left foot condition during this timeframe. In the December 2017 CAPRI file, it is noted that the Veteran was taken out of the hard foot cast on 3/2/17. He needed therapy for strengthening and gait recovery. In an April 2017 note, the Veteran states his last physical therapy session is today and that it has been going well. Veteran was told that he can now transition from his orthopedic boot to a normal shoe. He states that his foot is still painful but getting better. He still experiences some numbness to his 4th and 5th toes and along the top of his foot. He is reporting intermittent shooting pains. He relates that he will be going to California for 3 months starting Saturday and wants to know if he can discontinue wearing his orthopedic boot and start normal activity. Also, in April 2017, X-rays show healing process going well, orthopedic boot is no longer worn, and normal shoe gear is tolerated. No pain with palpation of left foot, and the Veteran can passively perform range of motion of the left ankle and able to stand with minimal discomfort. “Feels good with excellent relief of symptoms.” See CAPRI. 12/04/2017. In an August 2017 note, the Veteran reports taking 15-minute walks every day to recover from foot surgery. Id. The Veteran in November 2017, states that a felt pad was applied to his left custom orthotic, pain was diminished, he would like a custom orthotics with the modification, and no other complaints. Also, in November 2017, the Veteran says he has greatly reduced his activity due to foot pain. During this period the VA medical center continues to modify the Veteran’s orthotics to help relieve his foot pain. Id. There are not many additional notes reference the Veteran’s left foot between November 2017 and December 2018, when the Veteran’s condition takes a turn for the worse. Veteran reports pain in one of his left foot toes, which is subsequently diagnosed as Hammertoe. The Veteran seeks a second opinion from outside the VA. The Veteran tells the civilian doctor he underwent surgery in 2016 at the VA for presumed midfoot arthritis. The civilian doctor notes a bone graft from the distal medial-tibia, gastrocnemius recession, and fusion of the first metatarsal cuneiform joint, and multiple additional incisions for metatarsal type osteotomies. He notes hammertoes of the-Jesser digits, yet they're currently not painful. The Veteran points to the midfoot as the epicenter of his pain with most of his pain to the first metatarsal joint region. The Veteran reports progressive pain over the past year that has worsened such that it is limiting his ability to walk. He currently uses a custom brace, which helps significantly as well as proper shoe gear. See CAPRI 03/18/2019. Next the record shows the VA tells the Veteran he is eligible for Choice Services and has clearance for another corrective foot surgery on 01/15/2019. Id. Based on the file record, for most of this portion of the appeal period, the Veteran seemed to be recovering well from the first surgery. It is not until the month before his next surgery that the record shows things taking a turn for the worse. Despite things suddenly going poorly for the Veteran in the last months of this segment of the appeal period based on what is of record, the Board finds continuing the “moderately severe” 20% disability rating best approximates the Veteran’s left foot condition for the March 1, 2017 through January 15, 2019 under DC 5284. As noted above, the Veteran was reporting the surgery and orthotics seemed to help with symptoms during this period. The evidence does not reflect symptoms that more nearly approximate a severe foot condition. 3. The Veteran’s left foot disability for the period from May 1, 2019 through February 20, 2020 has a disability rating of 20 percent, for moderately severe, under DC 5284. The Veteran contends he is entitled to an evaluation in excess of 20 percent for his left foot disability from May 1, 2019 through February 20, 2020. During the third period under consideration for an increased left foot disability rating, the Veteran has had no new VA examination since January 2015 to inform a change in rating. This period starts after the Veteran’s last left foot corrective surgery and convalescence period where he received 100% disability. For the next appeals period, following the Veteran’s second corrective foot surgery in January 2019, again we look at the file for evidence of current disability. In July 2019 we find in another CAPRI record where the Veteran reports being in constant pain due to his foot injury and recent surgical repair six months earlier. He has a special ankle support and brace that he wears most of the time. The Veteran is prescribed acute pain medicines for the foot pain and is advised to wear his custom prosthetic inlay boots and use a cane as instructed. See CAPRI 08/08/2019. From non-VA treatment records where the Veteran had this last surgery, the surgeon team in March 2019 also report a successful surgery, and recovery plan moving along as hoped. Veteran is again fitted with Special orthotic boots to relieve pain and aid in recovery. See Medical Treatment Record – Non-Government Facility 08/19/2019. Veteran returns to civilian doctors for follow-up after four months in April 2019. He still has pain in his foot. The assessment is that hardware is in place with rectus alignment and incomplete bony consolidation, yet it is an increase from prior. The Veteran is progressing well and transition to regular shoe gear is tolerated. Id. In June 2019, the Veteran is informed of the risks, benefits, and alternatives discussed regarding injection treatment. Veteran opts for the injections and agrees to return in two to three weeks for an evaluation. Eighteen weeks after the surgery, the Veteran returns for follow-up. The doctor determines that surgery results are progressing well, pain well-controlled to the surgical site, notes no pain to this area, complaining of left medial ankle gutter pain over the past few weeks. Ankle pain has progressively worsened and is affecting the Veteran's ability to walk. Id. July 2019 is the Veteran’s last visit of record to the civilian doctor from his January 2019 foot surgery. The doctor says the Veteran, despite progressing well, will likely always require a left lower extremity brace, as he notes significant improvement with the bracing. Patchy areas of numbness to the distal forefoot, are also likely lifetime as they were present prior to his previous surgery more than two years ago. Doctor does not recommend another site injection as the Veteran is 50% improved. Id. The Board finds no evidence in the record warranting an increase in the Veteran’s disability rating prior to the Board hearing in August 2019. The Veteran requested and received a Board hearing in August 2019. At the hearing conference the Veteran was able to describe his foot disability to a Veteran’s Law Judge (VLJ) directly. A transcript of the hearing was made part of the record. The Veteran testified in the August 2019 Board hearing that he had a recent left foot surgery. Corresponding treatment records indicate that the Veteran had a left first metatarsal cuneiform fusion and revision on January 15, 2019. At the August 2019 hearing the Veteran said: I can't walk down a set of steps. I have to walk sideways like a crab because I have no feeling in my last three toes, so I --it's really hard for me to distinguish when I hit that last one, you know so I have to walk sideways. At least I know where I'm stepping because I'm keeping an eye on as I'm walking down the steps. Two, it always goes numb. Right now, it's going numb just talking to you now. You know, that's just how it is. I take arthritis pain medication. They gave me a new medication for pain, but not a narc, which is fine. The VA does a lot of good on that end. But as far as my foot, it's very limited. I use a walking stick for the rest of my life. They gave me a brace, which I'll have to use for the rest of my life, which is documented right here in the doctor's notes. I lost my feeling of my left three toes in 2016, which was (inaudible) when they did surgery, my second surgery, via the military. After that, two years later, the doctor said, after a year, year and a half, you should get your feelings back. They never came back. At the same hearing the Veteran testified that the doctors did another surgery on the same foot because when they put the plates in and corrected my foot, the plates broke, so they were slipping down the side. Then on this second surgery I had or the third surgery I just recently had, they corrected it, but they did nothing else. All they did was put bigger and stronger plates in there, so they corrected the foul-up from the second surgery. Since then, I've never had any feelings on my last three toes. So, it makes it hard to really move around and do things.” When asked how his foot disability impacts his ability to find and keep gainful employment, the Veteran said, I am a chef. We stand up, you know, every day. Every day, every minute of a cook's life, you're constantly standing. I can't stand for long periods of time. (Inaudible) safely with the hand when you're cooking, you have to be standing and chopping and slicing, dicing, whatever it takes to get the job done. I can no longer do that. I was a chef for 45 years. I stopped in 2011 when I signed up with the VA. I just couldn't handle it; you know the pressure on the hand and the foot. The Veteran also told the VLJ that the foot disability is causing other problems. By trying to lessen the foot pain, it is affecting his gait, which puts pressure on his right side, ankles and hip. He cannot stand for long or walk too far even with the cane and brace. Despite being careful, due to the foot numbness, the Veteran occasionally falls while walking. Based on the Veteran’s hearing testimony, the impact of his disability on daily living tasks, his inability to make a living as a chef, the limits the disability puts on his social interactions with his grandson and others, lack of mobility, and pain, the Board finds the impact of the disability is “severe,” 30% disabling (the rating AOJ grants from February 2020), effective from the date of the hearing, on 08/23/2020. 4. The Veteran’s left foot disability for the period starting February 20, 2020 has a disability rating of 30 percent, for “severe,” under DC 5284. The Veteran contends his left foot disability should get a higher rating from February 20, 2020. Prior to the last period, for which the Veteran requested an increased rating for his left foot disability, The Veteran had his most recent VA examination in February 2020 which could provide evidence of the Veteran’s change in disability. The AOJ used this last VA exam to increase the Veteran’s rating from 20% to 30% with effective date of the exam, February 20, 2020. Following the Veteran’s surgery and convalescence, during the first half of 2019, the Veteran was an out-patient at the VA medical center in Albuquerque. In the podiatry notes from March 2020, it says the Veteran “is doing fairly well.” Due to COVID-19 precautions, the Veteran was asked, and agreed to do telephone visits. The Veteran reports to the medical center in February 2020 that since surgery, he has had constant pain which waxes and wanes. He states that his pain is usually an 8 to 10/10. The Veteran denies taking any medication for the pain but does perform at-home exercises. According to the Veteran, his gait has been "off" due to the pain. The Veteran wears a custom ankle brace. He is requesting pain medication currently. The Veteran has tried topical lidocaine and Voltaren gel without relief. He also reports diffuse numbness to the foot. At the February 2020 VA examination, the Veteran makes essentially the same declarations as at the Board hearing a few months prior. Due to the pain, he is unable to walk for more than ten minutes, or stand longer than 10-15 minutes, without experiencing increased pain in his left foot. The Veteran uses a cane, a brace, and orthotics, and is in constant pain, “9 out of 10” on a 10-point scale. At the exam, the Veteran reported pain on weight-bearing, and non-weight-bearing, instability in station, disturbance in locomotion, interference with standing and lack of endurance. The examiner noted objective evidence of pain on active and passive ranges of motion, weight and non-weight bearing of the left foot. However, he also noted amputation and use of a prosthetic would not equally serve the Veteran. The only schedular rating above 30% for a foot disability under DC 5248 is 40%, which is only assigned for actual loss of use of the foot, which is not the case with the Veteran. Based on the evidence; therefore, the Board finds an increase in disability rating from 30% to 40% from 2/20/2020 unwarranted. 5. The Veteran’s left hand disability for the period prior to July 3, 2019 has a disability rating of 0 percent, or noncompensable, under Diagnostic Code 5010. The Veteran contends that he is entitled to a compensable evaluation prior to July 3, 2019 for his left hand disability. The Veteran has residuals of a broken pinky finger and osteoarthritis of his thumb; both on his dominant left hand. This condition was initially rated under Diagnostic Code 5010-5230. During the pendency of the appeal, the AOJ separated the two conditions and rated the residuals of a broken pinky finger under DC 5230 and rated the fracture of the thumb under Diagnostic Code 5010-5228. Diagnostic Code 5010 which determines a disability rating for arthritis due to trauma, substantiated by X-ray, which is the case for the Veteran’s thumb, defers to DC 5003, which rates disability based on limitation of motion under the appropriate diagnostic code. Under DC 5230 for the little finger, the little finger warrants a disability rating of 0% for having any limitation of motion. In fact, under DC 5227, unfavorable or favorable ankylosis of the little finger also warrants a noncompensable evaluation. Under the limitation of thumb motion provisions of DC 5228, a noncompensable rating is warranted if 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 when there is 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; and a 20 percent rating is warranted if 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. 38 C.F.R. § 4.71a , DC 5228. The 2015 VA examination reflected the Veteran reported he was left hand dominant. He indicated the whole hand hurt and he had to massage it. He explained he could not play sports with his grandchildren or work like he used to. Range of motion of the left hand was described as normal with little finger extension of the MCP, PIP and DIP to 0 degrees and flexion to 90 degrees MCP, 100 degrees PIP and 70 degrees DIP. The thumb had extension of the MCP and IP to 0 degrees and flexion of the MCP to 100 degrees and IP to 90 degrees. There was no gap between the pad of the thumb and the fingers. There was no ankylosis. During the 2017 VA examination the Veteran described a lump on the left hand over the 4th and 5th metacarpals. He indicated the arm and hand fall asleep, go numb and get cold. He reported pain at the palm under the 4th and 5th metacarpals. He described daily flare ups which were more like a jabbing or stabbing pain. Range of motion of the left hand was normal. The little finger had extension of the MCP, PIP and DIP to 0 degrees and flexion to 90 degrees MCP, 100 degrees PIP and 70 degrees DIP. The thumb had extension of the MCP and IP to 0 degrees and flexion of the MCP to 100 degrees and IP to 90 degrees. There was no gap between the pad of the thumb and the fingers and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was pain that caused functional loss, however there was no change in motion after repetitive testing. There was no ankylosis. During the most recent VA hand examination in July 2019, the Veteran told the examiner he has pain to the joints of his 1st metacarpal and at palm under the 4th and 5th metacarpals. The Veteran stated at times he has trouble lifting items and flare-ups of his left hand pain daily lasting 2 hours. The Veteran said that since last exam in January 2017 the condition has increased. He also stated he has had a lump on his to his 4th/5th metacarpals, and his hand and arm fall asleep and go numb. In the July 2019 exam, the Veteran reported on functional loss, by stating he has trouble lifting items with his dominant, left hand. When measured during the exam, the range of motion for all fingers was normal. The 2019 examiner, like all the previous examiner, noted he was unable to measure or opine as to functional loss during flare-ups but said the Veteran's statements describing functional loss during flare-ups is medically consistent with the examination. During the August 2019 Board hearing, the Veteran testified that: I been to surgery on my left elbow due to my left hand. I can't do what I used to do. I used to be a chef for 45 years. I can't hold a knife. I can't even dribble a ball. I can't do nothing with my grandson, so it prohibits me from doing a lot of things, you know. The hand still goes numb. I mean, I just can be sitting here talking right now, and it's going to fall asleep. You know it falls asleep and it gives me numbness and I can't use it. At the hearing he added: I'm left-handed. But it just --I can't even write my name properly. It looks like a bunch of chicken scratch, you know. It just --there's a lot of things wrong with the hand. They say because I can shake their hand, I'm okay. But this hand was broken back in the '70s doing my job in the Marine Corps, and it locks up when I drive; I was driving down here, and it locks it up. So, I'm limited in a lot of things on my left hand, you know. The biggest thing is being out there with my grandson doing things, and I can't even do that. He goes, what's wrong, grandpa? Well, I can't do that. During this part of the appeal period in February 2020, the Board remanded the case to the AOJ to conduct an examination to determine the relationship between the Veteran’s non-service connected left side carpel tunnel syndrome and his left hand disability, because it was unclear if the nerve disability is part of the hand disability, was aggravated by the hand, was caused by the hand, or is independent of the hand disability. The VA exam to determine the relationship between the Veteran’s left side neuropathy and his left hand disability resulted in two negative opinions. The medical examiner opined that the Veteran’s left side neuropathy was not aggravated by nor otherwise related to his left-hand disability. The examiner provided a rationale for his opinion: The claimant did not have carpal tunnel syndrome prior to the stated fracture of the midshaft 5th metacarpal and osteoarthritis of the 1st metacarpal phalangeal joint, left hand. The carpal tunnel symptomatically appeared years following. Further, it is this examiner’s opinion that there is no anatomical or physiological connection between the claimant’s service-connected condition and the development of left carpal tunnel syndrome. The Board notes that the record does not reflect any ankylosis of the little finger. Furthermore, while the Veteran has pain of the left ring finger and experiences some functional impairment, he is already in receipt of the maximum schedular rating under DC 5230. Thus, an increased rating in excess of the current noncompensable rating is not warranted. While as a general matter when painful motion is present the minimum compensable rating for the joint should be assigned, in this case there is no level of disability that warrants a compensable rating under DC 5230. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Therefore, a compensable rating for painful motion cannot be assigned in this case. See id; 38 C.F.R. § 4.59. However, as outlined above, the Veteran has reported significant pain on motion, flare-ups and lock ups of both fingers. The Board finds a liberal reading of Diagnostic Code 5003, which assigns a 10% rating for degenerative arthritis with X-ray evidence of involvement of 2 or more minor joint groups, when there is no limitation of motion of the specific joint or joints is proper. DC5228 provides for a minimum compensable 10 percent rating for certain limitation of motion. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Cf. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the ring and little finger). Here, in light of the pain and flare-ups of the thumb, the Board finds an increased 10 percent rating is warranted. This comports with the rule that, rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board finds the Veteran’s entitlement to left hand disability compensation is at least in equipoise, and as such warrants a minimum compensable rating of 10% based on the testimony given during the 2019 Board hearing, and 2019 VA examination. A higher rating is not warranted as the evidence does not demonstrate the thumb presents with a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers, nor does the evidence more nearly approximate unfavorable ankylosis of the thumb to warrant a rating under 5224 or favorable ankylosis of the thumb and the little finger to warrant a higher rating under DC 5223. The examinations and treatment records never reported a gap or ankylosis of either finger. Thus, an increased 10 percent rating, but no higher, is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.