Citation Nr: 21062754 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-21 642 DATE: October 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for residuals of right thumb fracture is denied. FINDING OF FACT The Veteran's right thumb disability did not manifest in a gap of more than two inches between the thumb pad and opposing fingers, or any ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for residuals of a right thumb fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5216-5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that although the Veteran initiated an appeal of his claim of entitlement to service connection for hepatitis B in his November 2018 notice of disagreement (NOD), he indicated that he did not wish to appeal this claim on his May 2020 substantive appeal (VA Form 9). Accordingly, the issue is not before the Board. This matter was last before the Board in February 2021 and June 2021, when it was remanded for further development. The Veteran testified before the undersigned during a hearing in February 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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 these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Entitlement to an initial rating in excess of 10 percent for residuals of right thumb fracture. The Veteran asserts that his right thumb disability is worse than what the current rating reflects. The Veteran's right thumb disability is currently rated under DC 5228. Pursuant to DC 5228, as to both the dominant and non-dominant hand, for limitation of motion of the thumb, where there is 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 10 percent disability rating is assigned. Where that gap is more than two inches (5.1 centimeters), a maximum 20 percent disability rating is assigned. 38 C.F.R. § 4.71a, DC 5228. In addition, thumb disabilities can be rated under DC 5224. As to both the dominant and non-dominant hand, favorable ankylosis of the thumb is rated as 10 percent disabling, and unfavorable ankylosis of the thumb is rated as 20 percent disabling; a schedular rating higher than 20 percent is not available. A Note also advises that consideration should be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, DC 5224. Turning to the evidence of record, the Veteran filed a claim for service connection for residuals of a right thumb fracture in August 2018 and was afforded a VA examination in September 2018. The September 2018 examination noted the Veteran's reports of stiffness, cramping, weakness, and fatigue of the right thumb. The Veteran stated he used a stress ball for relief. The Veteran was shown to be right hand dominant, and to experience flare-ups in the form of achiness and cramps after prolonged use. On examination, there was a 3-centimeter gap between the right thumb pad and fingers. There was evidence of pain, and the limited range of motion was noted as contributing to functional loss in the form of stiffness and fatigue. The examiner was able to conduct repetitive use testing with no additional functional or range of motion loss. Moreover, there was no evidence of muscle atrophy or ankylosis, but the examiner noted the Veteran was not able to flex his thumb appropriately. The Veteran was granted service connection with a noncompensable rating in an October 2018 rating decision. The Veteran appealed the rating assigned to the Board and was provided another examination in March 2021. During this examination, the Veteran reported feeling pain in his thumb when using it repeatedly, as well as reduced grip strength. The Veteran further reported experiencing flare-ups daily, which were described as moderate to severe, depending on usage, that can last a day. The examiner noted there was no gap between the pad of the thumb and fingers, but noted there was objective evidence of localized tenderness/pain on palpation in the right thumb metacarpophalangeal (MCP) joint, which was characterized as mild. In addition, evidence of pain was noted in the right thumb upon active and passive motion, but that does not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. The examination report further showed that evidence procured by the Veteran suggests that pain significantly limits functional ability with repeated use over time. In addition, the examiner noted no change in range of motion during flare-ups. Hand grip strength was noted as a normal 5/5, with no ankylosis. In June 2021, the Board remanded the matter in order to obtain an addendum opinion regarding inconsistencies between the symptoms the Veteran reported during the March 2021 examination and the findings of the examination, particularly the lack of additional functional/range of motion loss based on pain from flare-ups and repeated use over time. A July 2021 addendum opinion stated that the March 2021 examination showed decreased active and passive range of motion, which was noted as the same range of motion for repetitive use or after repeated use over time and flare-ups. The examiner explained that the Veteran reported pain and weakness during flare-ups, and that pain and weakness do not always have an impact on the range of motion. In the Veteran's case, his flare-ups are associated with an increase in pain and weakness, not a change in range of motion. As such, although the March 2021 examination noted moderate to severe flare-ups, this reflects an increase in pain and weakness, without a change in range of motion. Based on the foregoing, the Board finds the Veteran is not entitled to a rating in excess of 10 percent for his right thumb disability during any point in the appeal period. As noted above, the VA examinations above show that the Veteran's right thumb did not exhibit a gap of more than 2 inches (5.1 centimeters) between the thumb pad and fingers, with the thumb attempting to oppose the fingers, and more clearly approximates a gap of one to two inches (2.5 to 5.1 centimeters), as is required by the currently assigned 10 percent rating. In addition, there is no ankylosis of the right thumb shown in any of the examinations. As such, the Board finds that the medical evidence does not support a rating in excess of 10 percent under DCs 5224 or 5228. See 38 C.F.R. § 4.71a. Moreover, although the examiner noted pain during active and passive motion, the Board finds the pain and functional loss due to this is consistent with the existing 10 percent rating, and the combination of such factors with the gap shown upon examination does not equate to a disability warranting a 20 percent evaluation. Finally, there are no private or VA treatment records during the appeal period that show the Veteran meets the criteria for a higher rating for his right thumb disability. The Board has considered whether any other DCs related to disabilities of the hand and fingers would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. The evidence does not show unfavorable or favorable ankylosis of any digits. Therefore, higher ratings under DCs 5216 through 5228 are not warranted. In sum, as there is no reasonable doubt to be resolved in the Veteran's favor, entitlement to a rating in excess of 10 percent for right thumb disability is denied. In reaching this determination, the Board finds that this case does not raise any additional issues, such as entitlement to a total disability rating based upon individual unemployability. Rather, the Board has resolved the sole issue on appeal in the above decision. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.