Citation Nr: 21071978 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 11-32 678 DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for right thumb traumatic arthritis, to include on an extraschedular basis, is denied. FINDING OF FACT At no time under consideration is the Veteran's right (major) thumb disability shown to have been manifested by a gap of more than two inches (5.1 cm.) between the thumb pad and fingers when attempting to oppose the fingers; factors warranting an extraschedular rating are not shown by the record. CONCLUSION OF LAW A rating in excess of 10 percent for right thumb traumatic arthritis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a Veteran who served on active duty from August 1968 to July 1973. He died in June 2016. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 Department of Veterans Affairs (VA) rating decision. An April 2016 Board decision denied a schedular rating in excess of 10 percent for right hand arthritis, status post trauma to the index finger, and thumb laceration, and remanded the matter of entitlement to an increased rating on an extraschedular basis for additional development. A November 2016 Board decision again remanded the matter on an extraschedular basis for additional development. The Veteran appealed the April 2016 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). An October 2017 Memorandum Decision, in relevant part, vacated and remanded the claim seeking a higher rating for right hand arthritis status post trauma to the index finger and thumb for further development and readjudication. In May 2018, December 2020, May 2021, and August 2021, the case was remanded for additional development. [Notably, a June 2020 rating decision recharacterized the right hand arthritis issue and granted service connection, and assigned separate ratings, for each finger (index, long, ring, and little) of the right hand. The December 2020 Board decision denied increases in the separate ratings assigned for right hand index finger, long finger, ring finger, and little finger disabilities, and remanded the instant (thumb) claim for additional development.] Entitlement to a rating in excess of 10 percent for right thumb traumatic arthritis is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). "Staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's right thumb disability has been rated 10 percent throughout, under Codes 5010-5228. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Prior to February 7, 2021, Code 5010 provided for rating traumatic arthritis as degenerative arthritis under Code 5003. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved. When limitation of motion is noncompensable under the appropriate Code(s), 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 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, Code 5003. Under Code 5228 (for limitation of thumb motion), a 0 percent rating is warranted for 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; a 10 percent rating is warranted for limitation of motion of either thumb with a gap of one to two inches (2.5 to 5.1 cm.); and, a 20 percent rating is warranted for limitation of motion of either thumb with a gap of more than two inches (5.1 cm.). [The Veteran was right-handed; the ratings are the same for the major and minor extremities.] The Veteran's right thumb may also be rated under Code 5224 (for ankylosis) or Code 5152 (for amputation). However, as his right thumb is not shown (or alleged) to have been ankylosed or amputated, the criteria for rating under those Codes are not for consideration herein. 38 C.F.R. § 4.71a. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400(o)(2). Consequently, the evaluation period for consideration here is from January 2014 (a year prior to the January 12, 2015 date of claim) to the present. Factual Background October and November 2014 VA occupational therapy records note that the Veteran was seen for complaints of bilateral hand stiffness and weakness of grasp following a July 2014 left-hand dupuytren's release surgery. Right thumb range of motion (ROM) was noted as metacarpophalangeal 0-50/64 and interphalangeal 0-20/24. A measurement of any gap between the right thumb pad and fingers was not noted. On April 2015 VA hand and finger conditions examination, the diagnosis was status post trauma and laceration to right index finger and thumb. The Veteran reported that "he has never had full grip with the right hand." He reported problems with strength and ROM of the right thumb, middle finger, and index finger. He explained that about five years prior, "significant problems developed" in both hands, and that "it was still moveable." He reported that he was unable to continue his shoe repair work because he "can't hang on to the shoe anymore..." He also reported that he experiences flare-ups after 15 minutes of work, which are alleviated with rest. Initial ROM testing found a gap of 1.0 cm between the right thumb pad and his fingers. There was no evidence of pain on use or localized tenderness/pain on palpation. Repetitive use testing did not result in additional functional or ROM loss. The examiner noted that repeated use over time would likely result in pain and weakness, and that flare-ups "could cause additional loss of motion, but actual additional loss cannot be determined unless an examiner is present to objectively measure any additional loss, in my opinion." Right hand grip strength was 4/5; there was no ankylosis. X-rays showed moderate to severe degenerative joint disease (DJD) at first metacarpal joint bilaterally. The physician noted the Veteran has "significant arthritis" in his hand. In July 2015, a VA physician reviewed the Veteran's record and opined that the bilateral hand arthritis prohibits his ability to perform heavy labor. He opined that the Veteran "may have some mild efficiency problems with medium to light work with his hands." And he opined that the right thumb disability has "no effect [on employment] in my opinion." A September 2015 VA hand and finger conditions examination focused predominantly on the Veteran's left hand. However, it noted that right hand grip strength was 4/5 (same as left hand). In a March 2017 Administrative Review memorandum (ordered pursuant to the April and November 2016 Board remands), the Director of Compensation Service determined that the evidence does not demonstrate any exceptional or unusual disability picture for several disabilities, including the right index finger and thumb arthritis, to warrant a higher evaluation on an extraschedular basis. In an October 2017 CAVC Memorandum Decision, the CAVC found that remand was required to ensure VA's duty to assist was satisfied "by providing examinations that adequately considers flareups." The CAVC noted that, although the Veteran had died, "the appellant may be capable of providing credible lay evidence of functional loss due to pain, including during flare periods, outside the VA examination context that could constitute objective evidence in support of an evaluation." The CAVC further noted that "an adequate examination will consider all relevant, procurable information and provide an estimate, if possible, of the [V]eteran's additional functional loss during a flare-up." January 2019 VA correspondence (issued pursuant to the May 2018 Board remand, and the suggestion in the CAVC Memorandum decision) to the appellant asked her to submit a statement describing the functional loss associated with the Veteran's right hand arthritis, including a description of symptoms and their impact on daily activities and during flare-ups. She did not respond. In November 2019, VA obtained an advisory medical opinion (pursuant to the May 2018 Board remand) regarding estimated functional loss of the right thumb during flare-ups. A VA (fee basis) physician reviewed the record, including prior examination reports, and noted that the evidence showed "limited range of motion for the right hand involving all fingers, without pain on exam and no objective evidence of ankyloses." Based on her medical experience, she estimated an additional "5 degree functional loss of ROM of the right hand arthritis based on [the] Veteran's reported history of impairment's [sic] during flare ups." In December 2020, the Board remanded the claim again for an addendum opinion to ascertain whether the additional estimated 5 degree loss of ROM during flare-ups represented loss of thumb motion resulting in a gap of more than 2 inches (5.1 cm) between the thumb pad and fingers when attempting to oppose the fingers. In March 2021, the November 2019 consulting physician re-reviewed the record and opined that it is unlikely that the Veteran's loss of thumb motion resulted in a gap of more than 5.1 cm. She explained that treatment records do not show objective evidence suggesting the Veteran experienced loss of thumb motion resulting in a gap of more than 5.1 cm of his thumb and fingers. "This would indicate significant functional loss pertaining to the use of the hand, however, there are no consults, assessment for severe loss of thumb motion." In May 2021, the Board again remanded the claim for an addendum opinion which addresses/considers the November 2019 estimate of an additional 5 degree loss of ROM on flare-ups. In June 2021, another (fee basis) medical provider reviewed the record and provided (what amounts to) a negative nexus service connection opinion regarding the right thumb disability. He then proceeded to opine that it is less likely than not that the Veteran would have had a gap greater than 2 inches between his right thumb pad and fingers during a flare-up. In August 2021, the Board again remanded the claim for an adequate addendum medical opinion which address the November 2019 estimate. In September 2021, a VA (fee basis) physician reviewed the Veteran's record, and specifically acknowledged the November 2019 estimate of 5 degrees additional loss of ROM, as well as the June 2021 opinion. Based on his review of the record, he explained that he is unable to determine whether the Veteran's right thumb disability was productive of limitation of motion during flare-ups resulting in 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. He wrote: After review of the Veteran's record including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion during flares. I can only speculate the amount of loss of function or motion with flares. My non-issuance of a non-speculative opinion is based on the lack of general knowledge among the medical community at large (rather than my own personal insufficient knowledge) and is not due to my own personal aversion to offering an opinion based on issues not directly observed." Analysis Initially, the Board finds that there has been substantial compliance with the August 2021 remand order and that VA's duty to assist the appellant in obtaining an adequate medical opinion in this matter is met. 38 C.F.R. § 3.159(c)(4); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The October 2017 Memorandum Decision, which is the law of the case, noted that the appellant could provide lay statement evidence regarding functional loss of the right thumb due pain and including during flare-ups, and January 2019 VA correspondence to the appellant requested her to submit such statement (describing what she observed); she did not respond. The duty to assist a claimant is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991). The Board finds the September 2021 advisory medical opinion substantially complies with the August 2021 remand order. Although the examiner was unable to provide a conclusive opinion, he explained the reason for such inability, namely that his opinion is limited by the lack of general knowledge among the medical community at large (rather than his own personal insufficient knowledge or personal aversion) and limited by the evidence of record. The CAVC has specifically acknowledged that there will be instances where a VA medical examiner has obtained and considered all relevant available information, yet will still be unable to furnish the requested opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390-391 (2010). The CAVC noted that there are limits to even the most current medical knowledge, and in certain cases, no medical expert can provide the requested opinion. "Therefore, it would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the 'procurable and assembled' information prevents the rendering of such an opinion." Id. "When an examiner has done all that reasonably should be done to become informed about a case, however, and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence, there is nothing further to be obtained from that particular examiner." Id. at 391. Furthermore, although the appellant's attorney had argued that the June 2021 opinion was inadequate, neither he nor the appellant has alleged that the September 2021 opinion is inadequate (as is noted above, they did not respond to a request from VA to the appellant to describe the symptoms and related impairment of function she observed; no other source of such information has been identified as available). Accordingly, the Board finds that there has been substantial compliance with the Board's August 2021 remand instructions (to the extent possible without the appellant's cooperation). Turning to the merits of the appeal, the Veteran's right thumb disability has been assigned a 10 percent rating throughout (under Codes 5010-5228). To warrant the next higher (20 percent rating), the evidence must show there was a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. No examination during the evaluation period found limitation of such degree. On April 2015 VA examination, initial ROM testing showed a gap of 1.0 cm between the pad of the thumb and the fingers. The Board notes that 1.0 cm is less than half an inch, i.e., far short of two inches. Repetitive use testing on examination did not result in additional functional or ROM loss. Finally, right hand grip strength (which requires thumb motion) was noted as 4/5 on both April 2015 and September 2015 examinations, which is evidence weighing against a finding of more substantial limitation of thumb motion. The Board acknowledges the October 2017 Memorandum Decision, and finds that VA's duty to assist has been satisfied by obtaining an advisory medical opinion which adequately considers any additional limitation on flare-ups (and asking the appellant to provide descriptions of impairment she observed, as further clinical evidence is unavailable). The November 2019 consulting provider opined that, based on the medical evidence, the right thumb would have lost 5 additional degrees of ROM during flare-ups. In a March 2021 addendum, she explained that treatment records do not show objective evidence suggesting that during flare-ups the Veteran experienced loss of thumb motion resulting in a gap of more than 5.1 cm of his thumb and fingers. In June 2021, another medical provider who reviewed the record opined that it is less likely than not that the Veteran would have had a gap greater than two inches between his thumb pad and fingers during a flare-up. And most recently in September 2021, a third medical provider reviewed the record and explained why (as discussed above) a conclusive (not speculative) opinion cannot be provided based on review of the procured/assembled evidence. As noted above, the appellant did not provide a lay statement (when requested) regarding the Veteran's right thumb manifestations, and therefore an alternate (to clinical data) underlying basis for an estimate is unavailable . Accordingly, the preponderance of the assembled and procured evidence is against the claim for a schedular rating in excess of 10 percent for the right thumb disability. The Board has also considered whether a higher rating is warranted on an extraschedular basis, but finds it is not. The record does not show or suggest that the rating criteria for the Veteran's right thumb disability are inadequate, so as to warrant consideration/assignment of an extraschedular rating. The effects of the disability, including pain, weakness, stiffness, reduced grip strength, and limitation of motion are fully contemplated by the rating assigned. Furthermore, higher schedular ratings are available but, as outlined above, the evidence is against a finding that a higher schedular rating is warranted. There is nothing exceptional or unusual about the Veteran's right thumb disability. See Long v. Wilkie, 33 Vet. App. 167; see also Thun v. Peake, 22 Vet. App. 111 (2008). The Board acknowledges that the claim was referred to VA's Director of Compensation Service in the April 2016 remand, but notes that is it not bound by the prior remand directive. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the CAVC recognized that a referral decision is a factual finding but that the referral is "based on a [sic] evidentiary threshold that is lower than that for the decision to award an extraschedular rating. If the Board refers a claim to the Director for extraschedular consideration and the Director denies an extraschedular rating, the Board's earlier decision to refer the claim doesn't automatically bind the Board to grant an extraschedular rating; however, if the Board denies an extraschedular rating, it must provide adequate reasons or bases for deviating from its earlier referral decision." Here, the Board referred the claims seeking increased ratings for multiple upper extremity disabilities based on a finding that the record "seems to suggest" they played a significant role in the sale of his business (and hence his ability to continue that line of work). Thereafter service connection was established and separate ratings (not at issue herein) were assigned for disabilities of each (other than the thumb) right hand digit. Furthermore, VA has obtained additional medical records and multiple subsequent advisory medical opinions regarding the Veteran's right thumb disability manifestations (including pursuant to a CAVC Memorandum Decision). In summary, the posture of the Veteran's (and now the appellant's) claims is changed, and the nature of the disability picture is more complete today than it was in April 2016 (at the time of the referral). Accordingly, the referral is not binding on the Board's finding that the schedular evaluation adequately contemplates the right thumb disability picture and manifestations shown. The preponderance of the evidence is against the claim, on both schedular and extraschedular bases. Therefore, the appeal seeking a rating in excess of 10 percent for the right thumb disability, to include on an extraschedular basis, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.