Citation Nr: 21070753 Decision Date: 11/26/21 Archive Date: 11/25/21 DOCKET NO. 15-46 920 DATE: November 26, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for right thumb fracture with degenerative arthritis (right thumb disability) is granted. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for the March 12, 2021 right hand surgery is granted. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right thumb disability has been manifested by painful limitation of motion with a gap of more than two inches between the thumb pad and the fingers but without ankylosis. 2. The March 12, 2021 right hand surgery resulted in severe postoperative residuals and immobilization of a major joint. 3. The Veteran's back disability was not incurred during active duty and is not otherwise related to military service; degenerative arthritis did not manifest to a compensable degree within one year of separation from service, and continuity of symptomatology is not established. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for right thumb disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.45, 4.71a, DC 5003-5228. 2. The criteria for a temporary total rating with respect to the March 12, 2021 right hand surgery, to include right thumb arthrodesis and right wrist de Quervain's tenosynovitis release, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30. 3. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1983 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned. In February 2019 and November 2020, the Board remanded these matters for additional development. In August 2021, the RO awarded secondary service connection for right wrist de Quervain's syndrome, right elbow strain, right shoulder arthritis and a right upper extremity nerve disability. 1. Entitlement to an initial rating of 20 percent, but no higher, for right thumb disability is granted. The Veteran asserts that his right thumb disability warrants a rating in excess of 10 percent. See April 2015 Notice of Disagreement (NOD). The Board agrees. 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). The Veteran's right thumb disability is rated under 38 C.F.R. § 4.71a, DCs 5003-5228. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5003-5228 reflects that the Veteran's right thumb disability is described as degenerative arthritis, other than post-traumatic under DC 5003 and that the rating assigned is based on limitation of motion of the thumb under DC 5228. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. DC 5003 was not significantly amended by the regulatory changes and was simply retitled. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. The applicable diagnostic codes assigned for the thumb, DC 5224 and 5228, were not affected by the February 7, 2021 revisions to the musculoskeletal criteria. DC 5224 addresses ankylosis of the thumb. As the Veteran has never asserted and the evidence does not reflect that his thumb has been ankylosed, DC 5224 is not for application. Under DC 5228, a 10 percent disability evaluation is assigned for 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. A maximum 20 percent disability evaluation is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. In determining disability ratings, DC 5228 makes no differentiation between the major and minor hands. Throughout the appeal period, the Veteran submitted to VA examinations in March 2014, March 2015, December 2019, and January 2021. At the March 2014 VA examination, the Veteran was diagnosed with a thumb fracture. He denied experiencing flare-ups; however, he did endorse experiencing reduced range of motion after repeated use. In this regard, the March 2014 VA examination is inadequate and of limited probative value. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once the VA undertakes the effort to provide an examination, it must provide an adequate one). The March 2014 VA examiner recorded normal range of motion in the hand and fingers without objective evidence of pain during range of motion testing. There was no additional loss in range of motion reported during repetitive use testing and no gap was detected between the thumb pad and the fingers. The March 2014 VA examiner noted the Veteran's thumb displayed less movement than normal resulting in functional loss and that his right thumb was tender to palpation. The March 2014 VA examiner found the Veteran's strength to be normal and noted there to be no other pertinent physical findings, complications, or symptoms related to the Veteran's right thumb than those delineated above. The March 2015 VA examiner diagnosed the Veteran with resolved right thumb fracture. The Veteran denied pain or tenderness in his right thumb, denied experiencing flare-ups, reported no current treatment, and that he had a full range of motion. The March 2015 VA examiner found no loss in the Veteran's range of motion, no evidence of painful motion, and no gap present between the thumb pad and the fingers during opposition. The March 2015 VA examiner recorded no additional loss in range of motion during repetitive use testing and no gap between the thumb pad and fingers during opposition and concluded the Veteran had no functional loss or no functional impairment of any of his fingers or thumbs. The Veteran demonstrated normal strength and there was no ankylosis detected. The March 2015 VA examiner reviewed x-rays and concluded that the imaging revealed a normal right hand. The December 2019 VA examiner continued the diagnosis of right thumb fracture. The Veteran reported experiencing flare-ups that present as pain in stiffness in his right thumb. Initial range of motion testing revealed the Veteran's right thumb metacarpophalangeal joint (MCP joint) had normal extension with flexion limited to 100 degrees. His right thumb interphalangeal joint (IP joint) demonstrated normal extension and flexion was limited to 70 degrees. The examiner found no gap between the Veteran's right thumb and his fingers during opposition testing. The December 2019 VA examiner witnessed no objective evidence of painful motion and no tenderness to palpation was detected. The December 2019 VA examiner found no additional loss in range of motion or functional loss during repetitive use testing. The December 2019 VA examiner opined that repeated use over time would result in additional pain, fatigue, weakness, and lack of endurance in the Veteran's the right thumb along with MCP joint flexion limited to 100 degrees with normal extension. The IP joint was predicted to be limited 70 degrees of flexion with normal extension. The examiner concluded that repeated use over time would not result in a gap during opposition of the thumb to the fingers. The December 2019 VA examiner predicted the losses during flare-ups to be the same as during repeated use over time. The Veteran's right thumb disability was noted to result in weakened movement and an objective loss in strength, though no ankylosis was reported by the Veteran or detected by the examiner. The examiner noted no objective evidence of pain or additional loss in range of motion during non-weight bearing and passive range of motion testing. The January 2021 VA examiner diagnosed the Veteran with right thumb arthritis with the residuals of traumatic deformity with de Quervain's tenosynovitis. The Veteran reported experiencing flare-ups that present as worsening symptoms and an inability to use his right hand. He also reported that his right thumb disability made it hard for him to grip things, difficult to write, and is impairing his ability use fine motor skills (buttoning clothes). Initial range of motion testing revealed the Veteran's right thumb metacarpophalangeal joint (MCP joint) had normal extension with flexion limited to 65 degrees. His right thumb interphalangeal joint (IP joint) demonstrated normal extension and flexion was limited to 50 degrees. The July 2021 examiner found no gap between the thumb pad the fingers on opposition, though there was evidence of painful motion of the thumb that the examiner attributed to the Veteran's healed fracture. There was no additional loss in range of motion during repetitive use testing. The January 2021 VA examiner opined that repeated use over time would result in additional pain, fatigue, weakness, lack of endurance, and incoordination of his right thumb. The right thumb disability during repeated use over time was predicted to result in the MCP joint flexion being limited to 60 degrees with normal extension. The IP joint was predicted to be limited 45 degrees of flexion with normal extension. The January 2021 VA examiner opined that during flare-ups, the Veteran's right thumb MCP flexion would be limited to 55 degree with normal extension. The examiner opined that his right thumb IP joint's flexion would be limited to 40 degrees with normal extension. The examiner did not find that flare-ups would result in a gap between the thumb pad and fingers. The Veteran's right thumb disability was notably deformed and accompanied by swelling and weakness that impairs his fine motor skills. The examiner noted an objective loss of strength, though no ankylosis was reported by the Veteran or observed by the examiner. X-ray imaging confirmed deformity at the base of the first metacarpal of the thumb, attributed to the fracture, with mild degenerative arthritis. In addition to the VA examinations, the Veteran's VA treatment records reveal substantial and recent treatment for his right thumb disability. In this regard, the Veteran reported right thumb pain that was worsening and accompanied by swelling lasting two months that was also preventing him from closing his thumb against the side of his hand. See October 2017 VA treatment records. The October 2017 VA treatment provider noted light swelling locally with weakness in abduction and adduction of his right thumb. Id. The Veteran also reported that he had difficulty buttoning his clothes, zipping pants, putting on and taking off shoes, and attending to his toileting needs. Id. In August 2018, a VA treatment provider noted the Veteran had an obvious deformity of the right thumb and an inability to oppose his right thumb to other fingers. In April 2019, the Veteran was prescribed a flexible neoprene support to reduce pain. See April 2019 VA treatment records. In June 2019 the Veteran was administered a corticosteroid injection that was noted to have immediate pain relief. See June 2019 VA treatment records. In September 2020, a VA provider noted that the Veteran could not fully close his right thumb. In October 2020, a VA treatment provider noted the Veteran had a decreased ability to pinch his thumb and index finger, though he was able to make the "OK" sign. Due to his thumb pain and lack of function becoming unmanageable, the Veteran elected to proceed with surgery scheduled for March 2021. See December 2020 VA treatment records. On March 12, 2021, the Veteran underwent a right thumb MCP fusion (arthrodesis) and a right de Quervain's tenosynovitis release. See March 2021 VA treatment records. The surgery was outpatient, and the Veteran was discharged home without restriction other than no weight bearing with his right arm. Id. At the time of his discharge, his surgical wounds were sutured, and his arm wrapped in an Ace bandage. At his first post-operative visit approximately 10 days later, the Veteran's surgical wounds were checked for drainage and infection. See March 2021 VA treatment records. Once the wounds were verified as stable, a short arm thumb spica cast was applied, thereby immobilizing his wrist. The VA treatment provider noted that the cast would remain in place from 6 to 8 weeks and advised the Veteran that he could not drive due to safety concerns regarding his post-operative residuals. Id. At his second post-operative visit, a VA examiner noted the wound was not infected or draining and the Veteran was immobilized and compliant with his right arm cast. On May 4, 2021, the right arm spica cast was removed and a spica splint was applied. See May 2021 VA treatment records. In July 2021, the VA surgeon conducted the Veteran's fifth post-operative visit and noted that while the Veteran was progressing well, that his return to work should be delayed until November 2021. At the October 2018 Board Hearing, the Veteran provided demonstrative evidence of his inability to oppose his thumb with his other fingers. See Board Hearing Transcript at 9. The Veteran also testified that he has trouble gripping objects, operating zippers, and attending to his toileting needs. Id. at 2-3. The Veteran reported experiencing flare-ups approximately three times per month. Id. at 5. The Veteran's right-hand disability is currently rated 10 percent for painful, limited motion under 38 C.F.R. § 4.59. Based on the above discussed evidence and for the following reasons, an initial rating of 20 percent is warranted. The Veteran was found unable to close his thumb against the side of his hand in October 2017 when seeking treatment at the VA for his right thumb. He also demonstrated at the October 2018 Board Hearing and during an August 2018 VA medical visit that he could not oppose his thumb and fingers. Based on the reported symptomatology of the Veteran's limitation of motion, and his demonstrated inability to oppose his thumb and fingers during flare-ups, and the consistently reported functional impairment (difficulty buttoning clothes, zipping pants, putting on and taking off shoes, and attending to toileting needs), the Board finds that an initial 20 percent disability rating is warranted for the Veteran's service-connected right thumb disability. 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.71a, DC 5228. Regarding the Veteran's reports of swollen and painful thenar eminence, radiating pain from the right thumb into the right wrist, peripheral nerve injury and right wrist pain addressed in the November 2020 Board remand, the Veteran was service connected in an August 2021 rating decision for right hand degenerative arthritis, right wrist de Quervain's syndrome, right elbow strain, a right shoulder disability, and a right upper extremity ulnar and radial nerve disability. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). 2. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for the March 12, 2021 right hand surgery, to include right thumb arthrodesis and right wrist de Quervain's tenosynovitis release, is granted. As noted above, the Veteran underwent right thumb arthrodesis with right wrist ulnar nerve release on March 12, 2021. While the Veteran did not claim entitlement to a temporary total rating for his right thumb and right wrist disabilities, the Board finds that entitlement to the same has been raised by the record. Morgan v. Wilkie, 31 Vet. App. 162 (2019). A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted based on the criteria being met. 38 C.F.R. § 4.30. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.30 if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Available VA treatment records document that the Veteran underwent a right thumb arthrodesis with right wrist De Quervain's release on March 12, 2021. See March 2021 VA treatment records. The Veteran is service connected for right thumb and right wrist disabilities. The Veteran's right wrist was immobilized by a short arm spica cast. Id. Convalescent ratings are specifically authorized for the therapeutic immobilization of a major joint. 38 C.F.R. § 4.30(a)(2). Additionally, VA regulations denote that the wrist is considered a major joint. 38 C.F.R. § 4.45(f). Thus, on this basis alone, a temporary total rating is warranted. In July 2021, the VA surgeon concluded that the Veteran's return to work should be delayed until November 2021, though it was also noted the Veteran's right thumb and wrist were progressing appropriately. Accordingly, as the criteria under 38 C.F.R. § 4.30(a)(2) are met, entitlement to a temporary total rating is granted. To avoid prejudice to the Veteran, the Board will allow the AOJ to assign an effective date and duration in the first instance. If the Veteran disagrees with the AOJ decision, he may file a request for review on the appropriate VA-promulgated form. 3. Entitlement to service connection for a back disability is denied. The Veteran asserts that his back disability had its onset during active-duty service or is otherwise related to his active-duty service, to include as a result of the cumulative impact of his military occupation specialty (MOS) as a Machinist's Mate and repeatedly failing down ladders on the ship where he served. See August 2013 VA Form 21-526EZ; October 2018 Board Hearing Transcript at 14. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the evidence of a current back disability is not in dispute, as the Veteran is diagnosed with degenerative disc disease with thoracic strain. See August 2021 VA examination report. Therefore, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses of a back disability. However, the Veteran's STRs do document an instance where the Veteran sustained a laceration to his lip when he fell down a ladder (stairs) in April 1986. Accordingly, the Board finds the Veteran's report of injuring his back when he fell down a ladder into the engine room to be credible and consistent with the circumstances of his service regarding his active-duty service in the Navy and his duties as a Machinist's Mate. 38 U.S.C. § 1154(a). Thus, element two of service connection is met. Regarding the final element, nexus, the only competent opinion of record is against the claim. Initially, the Board notes that as the December 2019 VA examiner did not consider the Veteran's lay statements, and his opinion was conclusory and unsupported by a medical rationale, it is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); see also Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). The August 2021 VA examiner opined that it was less likely than not that the Veteran's back disability was caused by or related to service, to include the Veteran's conceded and repeated falls down ladders (stairs) in the Navy and the cumulative impact of working as a Machinist's Mate. The examiner, who acknowledged consideration of the Veteran's reported history of a back injury in service, found no evidence to support that this incident in service could residually cause his current back disability and instead noted that the Veteran's age was more likely a factor in the development of his current back disability. The examiner opined that the Veteran's statements asserting that his back pain began in service and continued to the present, when considered with the injuries the Veteran asserts to have occurred in service but were not documented, are not medically consistent with the Veteran's current back disability. In this regard, the examiner relied on his medical expertise in addition to the fact that Veteran did not seek medical treatment for over 30 years for any back complaints. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the examiner concluded that the Veteran's medical history was not consistent with trauma as an etiological cause for his back disability. This opinion is highly probative, as the examiner considered the Veteran's lay statements and pertinent medical history and included a cogent rationale supporting this conclusion. Critically, there is no competent opinion to the contrary. To the extent that the Veteran asserts that his back disability is the result of active-duty service, the Board finds that while he is competent to report observed symptomatology such as pain, he is not competent to opine as to the etiology of a back condition, as such a determination is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, as there is no evidence that the Veteran's degenerative arthritis manifested to a compensable degree within a year of service, presumptive service connection for chronic disease is not established. Nor is there any competent and credible evidence of an in-service manifestation of arthritis to allow for service connection based on continuity of symptomatology. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a back disability. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.