Citation Nr: 21066406 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-61 418 DATE: October 29, 2021 ORDER Entitlement to an increased rating, in excess of 20 percent, for right thumb fracture residuals (right thumb disability) is denied. FINDING OF FACT The Veteran's thumb fracture residuals more closely approximate a disability with no gap between the pad of the thumb and fingers; no additional limitation of motion with flare-ups or on repeated use over time; nor any additional functional loss with flare-ups or on repeated use over time. CONCLUSION OF LAW The criteria for an increased rating, in excess of 20 percent, for a right thumb disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.71A, Diagnostic Codes (DCs) 5003, 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the VA Central Office. A transcript of this hearing is of record. In December 2019, the Board remanded the case to the VA Regional Office for further evidentiary development. Increased Rating for Right Thumb Disability Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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 (1994). Nevertheless, the Board acknowledges 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). The Veteran asserts entitlement to an increased rating for his service-connected right thumb disability. Thus, in evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran is currently assigned a 20 percent disability rating for right thumb fracture residuals, under DC 5003-5228. 38 C.F.R. § 4.71A, DC 5003, 5228. As applicable to this case, hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. Thus, in this matter, the first set of four digits, 5003, is the diagnostic code for degenerative arthritis (hypertrophic or osteoarthritis); whereas the second set of four digits after the hyphen, 5228, is the diagnostic code used to rate the residuals of limitation of motion of the thumb. Id; 38 C.F.R. § 4.71A. The Board clarifies that although the rating criteria for DC 5003 was recently amended, effective February 7, 2021, see 85 Fed. Reg. 76453 (Nov. 30, 2020), this amendment is not applicable to any evidence that was submitted prior to this February 7, 2021 effective date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). Thus, as all probative evidence, in support of this claim, are dated prior to February 7, 2021, this amendment is not applicable to this appeal. Therefore, the Board shall apply the previous criteria for DC 5003. Under this criteria, degenerative arthritis established by X-ray findings will be 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. When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings shall not be combined with ratings based on limitation of motion. Id. Under DC 5228, a maximum, 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. 38 C.F.R. § 4.71A , DC 5228. At the Central Office hearing, the Veteran testified that he is unable to use his thumb, and whenever he attempts to pick up something, he is unable to do so because he cannot bend his thumb. Additionally, he reported that he is unable to grasp objects; he can hardly write; and that he cannot lift or carry anything. See September 2019 Hearing Transcript. As the Veteran's right thumb disability is already rated at 20 percent disabling, however, this is the maximum rating available for limitation of flexion of the thumb, under DC 5003 or DC 5228. Nonetheless, in suggesting that he is entitled to a higher rating than 20 percent disabling, the Veteran asserts that the February 2020 VA examiner who rendered the most recent, updated VA examination of the thumb needed to include any additional functional loss and additional range of motion, and that "[it] is required for [an examiner] to comply if the Veteran is not experiencing any flare-ups at the time of the examination." However, the Veteran misstates the applicable, precise, pertinent regulation regarding consideration for any flare-up complaints, on examination. Specifically, an examiner must obtain information from the Veteran about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, only when the Veteran reports flare-ups, but at the same time, is not suffering from flare-ups during an examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In the February 2020 VA examination report, however, the VA examiner noted that the Veteran did not report having any flare-ups, and on testing for functional limitations, the VA examiner also noted that the Veteran was not suffering from any flare-ups during his physical examination. Thus, as the Veteran did not report having any flare-ups, there were no details for the VA examiner to obtain about flare-ups. Additionally, there was no evidence of additional functional loss and/or additional limitation of motion for the VA examiner to address. On testing for repetitive use with at least three repetitions, the VA examiner noted, in the February 2020 VA examination report, that there was no additional loss of function or range of motion after three repetitions. Additionally, the VA examiner indicated that there are no additional factors that contribute to the right thumb disability; on testing for muscle strength, hand grip was rated at a "5" out of a possible "5" rating; and on testing based on the criteria that the United States Court of Appeals for Veterans Claim established, in Correia v. McDonald, 28 Vet. App. 158, 169 170 (2016), there was no objective evidence of pain on non-weightbearing; and there was no objective evidence of pain on active or passive range of motion. Further, the VA examiner reported that on initial range of motion testing, which was abnormal or outside of normal range, there was no gap between the pad of the thumb and the fingers; there was no evidence of pain with use of the hand (i.e. no pain on weight-bearing); and that there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Thus, the Board finds that contrary to the Veteran's above-mentioned assertions, the February 2020 VA examiner complied with all applicable, pertinent, law and regulation with regard to an examination pertaining to a musculoskeletal disability, such as the Veteran's right thumb disability. In doing so, the examination findings, particularly with respect to hand grip and strength do not support the Veteran's assertions that the thumb disability results in issues gripping items and carrying items. In support of his increased rating claim for the thumb disability, the Veteran submitted an October 2019 private disability benefits questionnaire (DBQ). Although this October 2019 DQ indicates that there is a 2cm gap between the right fingertips and the proximal transverse crease of the palm, with finger flexed to the extent possible; and that there is additional limitation of motion in the right hand after repetitive-use testing, the Board finds that this October 2019 private DBQ is not adequate for evaluating this claim. As the Board previously found in the December 2019 remand, this DBQ is deficient. Also noted in the December 2019 remand, the Board determined that while the examiner found that the Veteran had ankylosis, which resulted in limitation of motion of other digits or interference with overall function of hand, the examiner did not provide a rationale for this finding. Furthermore, and particularly relevant to the Veteran's above-mentioned assertions, although the private examiner found that there is additional limitation of motion in the right hand after repetitive-use testing, she failed to provide the precise measurements for flexion of the carpometacarpal and interphalangeal joints, on initial range of motion testing, and on repetitive-use testing. Without these measurements, any consideration as to whether the Veteran has favorable or unfavorable ankylosis is not discernable, despite this examiner's finding that the Veteran has ankylosis of the right thumb (without any indication as to whether the Veteran has favorable or unfavorable ankylosis). See 38 C.F.R. § 4.71A, DCs 5216 to 5223, Note 4 (explaining, in relevant part, that "if only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of more than 2 inches (5.1cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, the disability should be evaluated as "unfavorable ankylosis"; and that if only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of 2 inches (5.1cm) or less between the thumb attempting to oppose the fingers, the disability should be evaluated as "favorable ankylosis."). Thus, the Board finds that this October 2019 private DBQ is not probative to the issue of an increased rating for the thumb disability. Also pertinent to the Veteran's above-mentioned assertions, and more specifically, the Board has specifically considered whether a rating, in excess of 20 percent, is warranted under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the criteria under DeLuca and Mitchell. Again, there is no evidence that the Veteran's right thumb disability manifests any additional limitation in range of motion, any additional functional loss, or any additional functional impairment, with any contributing factors that limit functional ability during flare-ups or on repeated use. Rather, the probative evidence, as discussed above, reflects contrary findings. Thus, the Board finds that an increased, higher rating, in excess of 20 percent, is not warranted, where 38 C.F.R. §§ 4.40, 4.45, 4.59, and the DeLuca and Mitchell criteria are considered. The Board has also considered whether separate, additional ratings are available for the Veteran's right thumb disability. In doing so, the Board finds that the probative medical evidence does not show that that the Veteran has ankylosis of the right thumb. Although the Veteran submitted an October 2019 DBQ, which indicates that the Veteran has ankylosis of the carpometacarpal joint and interphalangeal joint, and in which the examiner indicated that the ankylosis resulted in the limitation of motion of other digits or interference with overall function of the hand, the Board reiterates that the private examiner did not provide a rationale for this finding. In particular, the private examiner did not provide specific measurements, on testing for limitation of motion, to support her finding that the Veteran has ankylosis of the right thumb, nor did she indicate whether the Veteran has favorable or unfavorable ankylosis of the right thumb. More so, in a subsequent, February 2020 VA opinion, a VA examiner clarified that there was no evidence of ankylosis of the thumb, on examination. As the rationale for this finding, the VA examiner explained that on examination, the Veteran had reduced range of motion in the right thumb, and that per VA regulation, ankylosis cannot be diagnosed if there is any range of motion in the thumb. Thus, as there is no probative evidence of ankylosis of the right thumb, a separate additional rating is not warranted for the right thumb disability, under DC 5224. Furthermore, the probative evidence does not show that the Veteran has any other ratable impairments or disabilities that may be related to the service-connected right thumb disability. Thus, for the foregoing reasons and bases articulated, an increased rating, in excess of 20 percent, must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.