Citation Nr: 21072146 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-29 796 DATE: December 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent disabled for a right wrist disorder is dismissed. Entitlement to an initial rating in excess of 10 percent disabled for a left wrist disorder is dismissed. Entitlement to a separate rating for left thumb disorder is dismissed. Entitlement to a separate 10 percent rating for a right thumb arthritis is granted. REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disorders, is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected bilateral shoulder disorders, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected bilateral shoulder disorders, is remanded. FINDINGS OF FACT 1. In May 2021, the Veteran withdrew the claims for entitlement to increased rating for a bilateral wrist disorder and a separate rating for a left thumb disorder. 2. The Veteran's right thumb arthritis is manifested by objectively painful motion, but does not manifest any gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers, ankylosis or functional ankylosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 10 percent disabled for a right wrist disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. 2. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 10 percent disabled for a left wrist disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. 3. The criteria for withdrawal of the claim of entitlement to a separate rating for left thumb disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. 4. The criteria for entitlement to a separate 10 percent rating for right thumb arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 2014. 1. Entitlement to an initial rating in excess of 10 percent disabled for a right wrist disorder is dismissed. 2. Entitlement to an initial rating in excess of 10 percent disabled for a left wrist disorder is dismissed. 3. Entitlement to a separate rating for left thumb disorder is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. In May 2021, the Veteran clearly and unambiguously withdrew the claims of entitlement to increased rating for a bilateral wrist disorder and a separate rating for a left thumb disorder in a written statement. This document included his name, claims folder number and signature. See 38 C.F.R. § 20.204(b). Thus, the Veteran validly withdrew the claims. Hembree v. Wilkie, 33 Vet. App. 1 (2020). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. 4. Entitlement to a separate noncompensable rating for a right thumb disorder The Veteran is service-connected for arthritis of the right wrist and thumb, evaluated as 10 percent disabling, the maximum schedular criteria for limitation of motion of the wrist under DC 5215. In April 2021, the Board remanded the Veteran's claim to determine whether a separate rating for a right thumb disorder is warranted. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under DC 5228, a 10 percent rating for limitation of motion of the thumb is warranted for a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is warranted for a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.17a. During the September 2020 Board hearing, the Veteran testified that his symptoms included pain, loss of thumb dexterity, and loss of grip strength requiring the Veteran to wear a brace. During a June 2021 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the right wrist and thumb. The examiner noted a decrease of range of motion of the right thumb, with an interphalangeal flexion endpoint of 80 degrees upon active range of motion and 90 degrees on passive range of motion; with estimated metacarpophalangeal flexion endpoint of 95 degrees and interphalangeal flexion endpoint of 75 degrees after repetitive use over time and during flare-ups. During the examination, the Veteran reported severe right thumb pain when using his right hand to grip. The examiner noted objective evidence of pain at the base of the right thumb, but indicated that it did not result in functional loss. The most recent x-ray examination in 2013 demonstrated mild osteoarthritis of the carpometacarpal thumb joint. The June 2021 VA examination demonstrated both painful motion and limitation of motion of the right thumb. The Veteran's September 2020 testimony and statements to the June 2021 VA examiner indicate severe pain when holding items or moving his thumb and loss of dexterity. Therefore, it is at least as likely as not that the Veteran's right thumb pain contributes to functional loss in the right thumb. The Board observes that the criteria of DC 5215 solely evaluates limitation of motion of the wrist without any reference to the thumb. See 38 C.F.R. § 4.71a, DC 5215. The Schedule for Ratings includes separate criteria for evaluating the thumb under a section entitled EVALUATION OF ANKYLOSIS OR LIMITATION OF MOTION OF SINGLE OR MULTIPLE DIGITS OF THE HAND. The Board finds no language with the Rating Schedule stating that separate compensable ratings for limitation of motion of the thumb and wrist would violate the pyramiding principles of 38 C.F.R. § 4.14. The Board next notes that the provisions of 38 C.F.R. § 4.59 authorizes a minimum disability evaluation where there is painful motion, even if nonlimited. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Here, the Board finds that the Veteran's right thumb arthritis is manifested by objectively painful motion and, as such, warrants a minimum 10 percent disability rating. The Veteran has credibly reported loss of thumb dexterity and loss of grip strength, particularly during daily flares which last throughout the day. The 2021 VA examiner conducted repetitive testing and found no additional motion loss, and opined there was no addition motion loss during flares. Thus, even with consideration of functional impairment during flares or with repetitive use, the Veteran does not more nearly approximate a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers which is required for the next higher 20 percent rating. The Board also finds that ankylosis, or functional ankylosis, has not been present during the appeal period. Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). The radiographic results do not demonstrate fibrous union, bony union or joint consolidation due to disease involving the right thumb joint. There is no clinical description of ankylosis, and examination of the right thumb demonstrates active motion in all planes of movement even during flares or with repetitive use. The Board finds that the lay and medical evidence does not describe ankylosis or functional ankylosis of the right thumb. As such, the criteria for a rating in excess of 10 percent have not been met. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disorders, is remanded. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected bilateral shoulder disorders, is remanded. 3. Entitlement to service connection for headaches, to include as secondary to service-connected bilateral shoulder disorders, is remanded. The Veteran underwent a VA examination for the issues on appeal in June 2021. The examiner determined that the Veteran's right hip disorder and cervical spine disorder are less likely than not etiologically related to service because a review of the Veteran's medical records do not establish chronicity of either condition. These opinions are inadequate for rating purposes as they do not provide an adequate rationale for the conclusion reached. The June 2021 VA examiner also diagnosed the Veteran with tension headaches, indicated that these headaches were at least as likely as not related to service, and then opined that there is no objective evidence of a headache disorder and no diagnosis rendered during the examination. The contradictory opinions are inadequate for rating purposes. A remand is needed to obtain VA medical opinions adequate for rating purposes. The matters are REMANDED for the following action: 1. Obtain relevant VA treatment records since July 2021 and associate them with the claims file. 2. Forward the Veteran's claims file to an appropriate examiner other than the June 2021 examiner for an opinion regarding the nature and etiology of any diagnosed right hip disorder. The examiner should answer the following questions: (a) Is it at least as likely as not that any diagnosed right hip disorder or right hip pain is etiologically related to military service, to include the rigors of military service? The examiner should provide opinion as to whether there is any medical reason to accept or reject the Veteran's belief that his current right hip disability results from 33 years of infantryman service, including carrying rucksacks and jumping from airplanes and helicopters (b) Is it at least as likely as not that the Veteran's service-connected knee and ankle disorders caused or aggravated (a medically discernible increase in functional impairment e.g., increase in the severity, frequency or duration of symptoms or additional functional impairment beyond the expected baseline impairment) any diagnosed right disorder or right hip pain? In answering those questions, the examiner's attention is directed towards the following: private medical records reflecting a compound ilium and abnormal hip heights and misalignment that create stress on the right hip joints (see, e.g., May 2019 Private Medical Records); and September 2020 hearing testimony indicating right hip pain may be related to 33 years of infantryman service, including carrying rucksacks and jumping from airplanes and helicopters. If an examination is needed, one should be scheduled. A comprehensive rationale must be furnished for all opinions expressed. 3. Forward the Veteran's claims file to an appropriate examiner other than the June 2021 examiner for an opinion regarding the nature and etiology of any diagnosed cervical spine disorder and headache disorder. The examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or greater possibility) that any diagnosed cervical spine disorder is etiologically related to military service? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected right and left shoulder disorders caused or aggravated (a medically discernible increase in functional impairment e.g., increase in the severity, frequency or duration of symptoms or additional functional impairment beyond the expected baseline impairment) any diagnosed cervical spine disorder? In answering (a) and (b), the examiner should address the May 2019 private medical records reflecting cervical degenerative disc disease among other issues, and the Veteran's in-service accident in which he banged his head on a .50 caliber machine gun, resulting in symptoms of neck pain and headaches. See, e.g., February 2016, September 2017 Lay Statements. (c) Is it at least as likely as not (50 percent or greater possibility) that any diagnosed headache disorder or headache pain is etiologically related to military service? (d) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected right and left shoulder disorders caused or aggravated (a medically discernible increase in functional impairment e.g., increase in the severity, frequency or duration of symptoms or additional functional impairment beyond the expected baseline impairment) any diagnosed headache disorder or headache pain? In answering (c) and (d), the examiner should address the Veteran's September 2020 Board testimony that his headaches are triggered by pain in his neck, and the Veteran's in-service accident in which he banged his head on a .50 caliber machine gun, resulting in symptoms of neck pain and headaches, and that he receives alpha stem treatment for headaches. See, e.g., February 2016, September 2017 Lay Statements. (Continued on the next page) If an examination is needed, one should be scheduled. A comprehensive rationale must be furnished for all opinions expressed. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.