Citation Nr: A21016552 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 210920-186360 DATE: October 12, 2021 ORDER An initial 10 percent rating for left wrist scaphotrapeziotrapezoidal (STT) joint arthritis is granted. An initial 10 percent rating for left thumb first carpometacarpal (CMC) joint arthritis is granted. FINDINGS OF FACT 1. The Veteran's left STT joint arthritis is manifest by painful motion but not ankylosis. 2. The Veteran's left first CMC joint arthritis is manifest by painful motion but not by 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. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but not higher, for left wrist STT joint arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215. 2. The criteria for an initial 10 percent rating, but not higher, for left thumb first CMC joint arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5228-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The rating decision on appeal was issued in September 2021 and the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Although the rating decision was issued as part of the implementation of a September 2021 Board decision granting service connection for the claims on appeal, the September 2021 rating decision was the first decision assigning an evaluation to the Veteran's disabilities and thus constitutes an initial decision. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Left Wrist STT Joint Arthritis The Veteran asserts he is entitled to a compensable rating for his left wrist disability. Limitation of motion of the major or minor wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with forearm is assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5215. When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38C.F.R. §4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court of Appeals for Veterans Claims (Court) noted that §4.59 "explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule." The provisions of §4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, §4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, §4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Here, while the Veteran's VA and private treatment records do not include any range of motion measurements indicating his wrist is limited to less than 15 degrees or has palmar flexion limited in line with forearm or that his wrist is ankylosed, his complaints of a painful left wrist are documented throughout the appeal period. See, e.g., July 2020 VA Treatment Record; March 2021 VA Treatment record. The regulations provide for higher ratings when there is ankylosis of the wrist pursuant to Diagnostic Code 5214. Here, the medical evidence does not document any evidence of ankylosis. While the Veteran has worn a splint on his left wrist since an injury in July 2020, as recently as May 2021 his wrist had full motion. See May 2021 Private Treatment Record. The Veteran has not reported that he experiences pain that results in a functional loss approximating ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. At 204-7. Therefore, the Veteran is entitled to the minimum 10 percent disability rating due to the painful motion of the left wrist STT joint, but not higher. 2. Left Thumb First CMC Joint Arthritis The Veteran further asserts he is entitled to a compensable rating for his left thumb disability, which is evaluated under Diagnostic Code 5228-5003. For limitation of the motion of the thumb, 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 warrants a noncompensable disability rating, whether on the major (dominant) or minor (non-dominant) hand. A gap of one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers warrants a 10 percent disability rating, whether on the major (dominant) or minor (non-dominant) hand. A 20 percent rating is warranted when the gap is more than two inches (5.1 cm), with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, as is the case here, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis of the left thumb first CMC joint has been established by x-ray imaging. See April 2021 Private Treatment Records. The Veteran's VA and private treatment records also indicate that the Veteran's thumb is painful on motion, there is some limitation of his range of motion, and he has an indication of palmar adduction contracture. See, e.g., March 2021 VA Treatment Records; May 2021 Private Treatment Records. However, there is no indication that he has a gap of more than two inches (5.1 cm) between the thumb pad and the fingers with the thumb with the thumb attempting to oppose the fingers. The regulations provide for higher ratings when there is ankylosis of the thumb pursuant to Diagnostic Code 5224. Here, the medical evidence does not document any evidence of ankylosis. While, as noted above, the record demonstrates some limitation of motion, there is no indication the Veteran's thumb is ankylosed, nor has the Veteran reported that he experienced pain resulting in functional loss that approximates ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. At 204-7. Therefore, the Veteran is entitled to the minimum 10 percent disability rating due to the painful motion of the left thumb first CMC joint pursuant to Diagnostic Code 5228-5003, but not higher. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mine, 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.