Citation Nr: 21064248 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 09-22 315 DATE: October 19, 2021 ORDER Entitlement to an initial disability rating of 10 percent for a left thumb and ring finger disability is granted. For the period prior to November 18, 2011, entitlement to an initial compensable disability rating for a right great toe disability is denied. FINDINGS OF FACT 1. The Veteran experienced painful motion of his thumb and ring finger which caused functional loss and had a gap of less than 2.5 centimeters between the thumb and the fingers. 2. Prior to November 18, 2011, the Veteran's right toe disability manifest in painful motion and did not manifest in severe symptoms equivalent to amputation of the great toe and had not been operated on. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent for a left thumb and ring finger disability are met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.103, 3.321, 4.1, 4.3, 4.7, 4.59, 4.130, DC 5010, 5228. 2. The criteria for an initial compensable rating prior to November 18, 2011 for a right great toe disability are met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.103, 3.321, 4.1, 4.3, 4.59, 4.7, 4.130, DC 5010, 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 2002. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in October 2015 and August 2017. In February 2019, the Board issued a decision denying these issues which was appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a January 2020 Order granting a Joint Motion for Partial Remand (JMPR), CAVC Vacated the February 2019 Board decision with respect to the issues listed above. 1. Entitlement to an initial disability rating of 10 percent for a left thumb and ring finger disability is granted Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In a July 2007 rating decision, the RO granted service connection for a left thumb, ring finger disability, along with a right great toe disability and a bilateral knee disability. The Veteran's left thumb and ring finger disabilities were rated together as one disability with the Veteran's right great toe disability and the bilateral knee disabilities under Diagnostic Code 5010. In May 2011, the RO issued a rating decision providing a separate compensable rating under Diagnostic Code 5257 for each knee but rated the left thumb and ring finger disability as noncompensable under Diagnostic Code 5230-5228 and the right great toe disability as noncompensable under 5299-5282. Diagnostic Code 5228 applies to limitation of motion of the thumb and assigns a 10 percent rating for a gap of 1 to 2 inches (2.5 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. There is no differentiation between the ratings assigned for the major and minor hands under Diagnostic Code 5228. Diagnostic Code 5010 is used to rate arthritis, due to trauma, substantiated by x-ray findings, and is rated under DC 5003 for degenerative arthritis. DC 5003 directs that degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. In this regard, DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, is to be combined, not added. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The term "incapacitating exacerbations" is not defined in Diagnostic Code 5003. For comparison purposes, the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes defines an "incapacitating episode" as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243 Note (1). Here, the Veteran has reported painful motion during an August 2018 VA examination, a March 2014 VA examination, a May 2009 VA examination. In addition, an August 2015 VA treatment records showed that the Veteran was having trouble grasping objects, and a February 2018 treatment record indicated that the Veteran reported splinting his ring finger and treatment with cortisone shots had been unsuccessful. The Veteran eventually underwent a trigger finger release on the left ring finger. The August 2018 VA examination, the Veteran had painful limited motion in the metacarpophalangeal (MCP), proximal interphalangeal, and distal interphalangeal joints of the left ring finger. In addition, there was limited flexion in the MCP and interphalangeal joints of the left thumb. While there was a 2 cm gap between the index and long fingers and the proximal transverse crease of the hand on maximal finger flexion, there was no gap between the pad of the thumb and the fingers. The May 2009 and March 2014 VA examinations did not note a gap between the Veteran's thumb pad and fingers. 38 C.F.R. § 4.71a, Note 5 states that if there is limitation of motion of two or more digits, each digit should be evaluated separately then the evaluations should be combined. Here, limitation of motion of the ring finger is noncompensable under Diagnostic Code 5230. 38 C.F.R. § 4.71a, DC 5230. Similarly, under Diagnostic Code 5228, limitation of motion of the thumb with a gap of less than one inch (2.5 cm) between the thumb pad and the fingers is also noncompensable. 38 C.F.R. § 4.71a, DC 5228. Thus, the limitation of motion of the Veteran's left thumb and ring finger is noncompensable under the respective diagnostic codes. However, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). Regarding the ring finger, although there is painful and limited motion of the ring finger, a compensable rating is not available under 38 C.F.R. § 4.59. Sowers v. McDonald, 27 Vet. App. 472, 482-81 (2015). Because there is no compensable rating under Diagnostic Code 5230, then any level of disability warrants a 0 percent rating, and the diagnostic code's specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger trumps the general intent in § 4.59 to compensate painful motion with at least the minimum compensable rating. Id. Therefore, as a noncompensable rating is the highest rating available for the Veteran's ring finger disability, a compensable rating under § 4.59 is not available for the ring finger. Id. Regarding the thumb, Diagnostic Code 5228 provides a minimum compensable rating of 10 percent. The Board finds that the evidence supports the assignment of a 10 percent rating arthritis of the thumb. There is demonstrable joint pathology on X-ray, and the joint is painful, and thus entitled to the minimum compensable rating, which is 10 percent under Diagnostic Code 5228. Combining the ratings for the thumb and ring finger pursuant to Note 5 provides a single rating of 10 percent for the thumb and ring finger. The Veteran also argues that he should be entitled to a 20 percent rating under Diagnostic Code 5223 for ankylosis of the thumb and ring finger or under Diagnostic Code 5224 for ankylosis of the thumb since the August 2018 examiner checked a box indicating that the Veteran had "Less movement than normal due to ankylosis, adhesions, etc." on the left hand. However, the August 2018 examiner did not record any ankylosis of any digit on the left hand. Furthermore, ankylosis, or the functional equivalent of ankylosis, is not shown on the May 2009 or March 2014 VA examinations or the Veteran's VA treatment records. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). Thus, a rating under Diagnostic Codes 5223 or 5224 is not available. 2. For the period prior to November 18, 2011, entitlement to a compensable disability rating for the Veteran's right great toe disability is granted. Prior to November 18, 2011, the Veteran had a noncompensable rating under Diagnostic Code 5280. Under Diagnostic Code 5280, severe unilateral hallux valgus equivalent to amputation of the great toe warrants a 10 percent rating. A 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 10 percent is the highest available rating available under DC 5280. During this period, the Veteran underwent a VA examination in May 2009. At the May 2009 VA examination, the Veteran reported no pain and no functional impairment due to this disability but did say he was limited to standing and walking to about 15 to 30 minutes. The Veteran did not report hospitalizations or surgeries for his right great toe condition. The Veteran reported no functional impairment due to this condition, but the examiner did find there was no active motion in the great right toe. The examiner noted tenderness in right foot but did not find the Veteran had no pes planus, pes cavus, hammer toes, hallux valgus, hallux rigidus, or Morton's Metatarsalgia found on examination. The VA examiner indicated that the right great toe arthritis was "resolved." There are reports of pain in his great toes in an August 2009, December 2010, March 2011, and September 2011 VA treatment records. There are no diagnostic codes specific to range of motion of the toes. However, the Veteran has been rated under Diagnostic Code 5280 due to later diagnoses of hallux valgus and hallux rigidus, and a November 2011 surgical procedure to remove excess bone from the great right toe. As discussed above, consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis. The Board also notes there is no other diagnostic code that provides for ratings for a great toe disability without amputation. See 38 C.F.R. § 4.71a, Diagnostic Code 5171 (toe, great, amputation of). Therefore, the Board finds that Diagnostic Code 5280 is the most appropriate code for rating the Veteran's residuals of his right great toe arthritis. As noted above, Diagnostic Code 5280 provides a minimum compensable rating of 10 percent. Here, the Veteran is shown to have painful motion of his right great toe within the meaning of 38 C.F.R. § 4.59 as evidenced by his repeated complaints of right great toe pain as well as the finding in the May 2009 VA examination of no active motion in the great right toe. Therefore, the Board finds that reading 38 C.F.R. § 4.59 and Diagnostic Code 5280 together, the Veteran's right great toe disability symptoms are entitled to the minimum compensable rating under Diagnostic Code 5280, which is 10 percent. Extraschedular Consideration The Board referred this claim for consideration of an extraschedular rating for these disabilities in an October 2015 remand. The Director of Compensation Service issued a November 2018 decision declining to award such a rating. The recent cases of Smith v. Wilkie, 32 Vet. App. 332 (2020), and Smiddy v. Wilkie, 32 Vet. App. 350 (2020), require the Board to inform appellants when considering reversing findings entered in a remand that a disability warranted referral for extraschedular consideration. However, the October 2015 remand did not make specific findings regarding whether the Veteran's symptoms were contemplated by the rating criteria, only noting that he diagnostic codes "do not appear" to consider pain and loss of strength in the left thumb and ring finger, and that "it is not clear" whether the Veteran's symptoms for his right great toe are contemplated by the rating criteria. Accordingly, the Board may proceed in analyzing the extraschedular rating elements. The VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a Veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321 (b)(1). There is a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's claims were sent to the Director of Compensation for an opinion as to whether the Veteran's disabilities warranted extraschedular consideration. In a November 2018 letter, the Director opined extraschedular increased ratings were not warranted for the Veteran's arthritis of the left thumb, left ring finger, or right great toe. The Director explained no unusual or exceptional disability pattern had been demonstrated that would render the application of the regular rating criteria as impractical. The Director also noted the Veteran's record did not demonstrate the symptomatology associated with the Veteran's conditions was not wholly contemplated by the rating criteria. The Board finds that the medical and lay evidence of record indicates that the Veteran has pain, discomfort, and difficulty walking, gripping, and grasping. However, such difficulties are contemplated by the schedular rating criteria and the Veteran's record does not indicate he suffers from symptoms not contemplated by the schedular rating. Additionally, the record does not show the Veteran suffers from an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. The Veteran's assigned ratings for his thumb and ring finger disability as well as his right great toe disability contemplate the painful motion of the joints which he has (Continued on the next page) reported. Therefore, increased ratings for the Veteran's left-hand disability and his right great toe disability on an extraschedular basis will be denied. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.