Citation Nr: 21073477 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 11-06 733 DATE: December 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a left thumb fracture (left thumb disorder), on an extraschedular basis is denied. FINDING OF FACT The Veteran's left thumb disorder has not been shown to be so exceptional or unusual, with such related factors as marked interference with employment or repeated hospitalization, to warrant the assignment of a higher rating on an extraschedular basis. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for a left thumb disorder, on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to February 1976. The Veteran testified before the undersigned Veterans Law Judge in a January 2017 videoconference hearing. In a December 2017 decision, the Board of Veterans' Appeals (Board) granted an initial 10 percent rating for a left thumb disability, and denied entitlement to a rating in excess of 10 percent. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a Memorandum Decision, vacating and remanding back to the Board, the portion of the Board's decision which denied entitlement to a rating in excess of 10 percent for the left thumb disability. The matter was most recently remanded in May 2021. The Veteran asserts that residuals of the left thumb fracture warrants a higher rating than currently assigned due to extraschedular consideration. He is currently in receipt of an initial 10 percent rating for limitation of motion (LOM) under 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Veteran contends that he is entitled to an extraschedular rating for his left thumb disorder due to significant functional impairment, to include an inability to tie knots, write, or pain with his left hand. See February 2021 Appellate Brief. Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step analysis for determining whether an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding on the part of the Regional Office (RO) or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). First, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); see also Thun, supra. Second, if the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321(b)(1). Third, there must be a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See also Thun, supra. There is a justiciable standard limiting the Secretary's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service-connected disability or disabilities. Kuppamala, supra. Further, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's left thumb disorder is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 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 rating assigned. Prior to February 7, 2021, Diagnostic Code 5010 concerns arthritis due to trauma (i.e., post-traumatic arthritis) and indicates to rate the disability under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis), which, in turn, indicates to rate the disability on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved which, here, since involving the thumb, is Diagnostic Code 5228 (for limitation of motion of the thumb). Under Diagnostic Code 5228 with 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, a maximum 20 percent rating is warranted for either a major or minor extremity. With a gap of one to two inches (2.5 to 5.1 cm), with the thumb pad attempting to oppose the fingers, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5228. 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. 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. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. As of February 7, 2021, Diagnostic Code 5003 is reserved for degenerative arthritis, other than post-traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. Accordingly, the Veteran's current rating under Diagnostic Code 5010-5228 is appropriate throughout the entirety of the appellate period as the Veteran's left thumb traumatic arthritis is rated based on LOM under Diagnostic Code 5228. The Board notes that in May 2021, the Board granted separate 10 percent rating for left thumb arthritis for the entirety of the appellate period. In regard to the instant appeal, the Board is unable to consider symptoms related to the separate 10 percent rating for left thumb numbness under 38 C.F.R. § 4.124a, Diagnostic Code 8515 because this would constitute as impermissible pyramiding. See 38 C.F.R. § 4.14. The evidence of record, including October 2010, February 2015, March 2017, and August 2020 VA examinations, as well as VA and private treatment records, show that the Veteran's left thumb disorder does not show marked interference with employment and frequent periods of hospitalization. In the May 2010 Statement in Support of Claim, the Veteran reported that he had limitation of motion and numbness. The Veteran was provided a VA examination in October 2010. The Veteran was left hand dominant. The examiner found decreased strength and dexterity in the left hand. The left thumb exhibited LOM, swelling, weakness, and stiffness. The Veteran reported a history of flare-ups, caused by cold and damp weather and extended use. The flare-ups occurred every 2 to 3 weeks and lasted for 1 to 2 days at a time. Flare-ups caused difficulty buttoning and gripping. On examination, there was no gap between the left thumb pad and fingers, although there was objective evidence of pain. There was objective evidence of pain after repetitive motion, but no additional LOM. There was no evidence of ankylosis, but there was evidence of decreased dexterity and fine motor skills. Mild osteoarthritic changes were observed in the left thumb. In the March 2011 VA Form 9, the Veteran stated that he believed his left thumb was deformed compared to his right thumb. The Veteran's dexterity affected recreational, social, and occupational tasks, such as picking up change from tables and tying knots. The Veteran was provided with a VA examination in December 2015. The Veteran was diagnosed with left thumb traumatic arthritis. The Veteran reported flare-ups aggravated by heavy lifting or gripping and wet and cold weather. His thumb slowed his ability to work accurately and quickly. The Veteran had given up painting, he had trouble lifting things from flat surfaces, and he would drop items from his left hand. On examination, there was a gap between the thumb and fingers of 0.5 cm. The examiner found the LOM of the thumb decreased the Veteran's ability to grasp. The thumb exhibited pain on examination. The repetitive use testing did not result in additional functional loss. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over time. There were some visual differences between the left thumb and the right thumb, which appeared to be minimal. Left hand grip strength was 4/5. No ankylosis were found in the left hand. The Veteran was provided a VA examination in March 2017. The Veteran reported left thumb pain with movement. The Veteran's job duties, such as gripping, caused flare-ups. There was no gap between the pad of the thumb and the fingers. There was pain in opposition with the thumb, evidence of pain with use of the hand, and localized tenderness or pain on palpation. There was no additional functional loss or change in LOM with repetitive use testing. Pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and flare-ups. There was no evidence of ankylosis. The Veteran was provided with a new examination in July 2020. The Veteran reported difficulty writing, difficulty with fine motor tasks, thumb pain, and the thumb rested in adducted position. Cold weather caused flare-ups. Tying knots, painting, writing, and gripping were all affected by the left thumb. On examination, there was no gap between the thumb pad and the fingers. Opposition of the thumb exhibited pain. Repetitive use testing did not result in any additional functional loss or LOM. Although the Veteran was not examined immediately after repetitive use over time or during flare-ups, the Veteran did describe the additional functional loss in terms of LOM, and there was still no gap between the thumb and the fingers. Left hand strength was 4/5. There was no evidence of ankylosis or muscle atrophy. The Board notes that the Veteran's representative contended that the July 2020 VA examination as inadequate because testing was not performed immediately after repetitive use over time. See February 2021 Appellate Brief. Although the examiner did not conduct the examination after repetitive use over time or during flare-ups, the Board finds the examinations adequate because the examiner provided estimated LOM measurements as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO's August 2021 referral for extraschedular consideration shows that an extraschedular rating was not recommended based on a totality of the record. In September 2021, the Director of Compensation Service also found that no extraschedular entitlement existed. There was no evidence that showed frequent hospitalization, or marked interference with work. The Director determined that the rating schedule evaluations are not shown to be inadequate for rating purposes. Now that the Board has determined the symptomatology and functional impairment of the Veteran's left thumb disorder, the first issue is whether the available schedular rating criteria was adequate to evaluate it. Thun, 22 Vet. App. at 115. The schedular criteria for musculoskeletal disabilities contemplate factors such as LOM, pain, and weakened movement. 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202, 207 (1995). Although the LOM and pain are contemplated by the schedular criteria, the symptoms of limited dexterity and decreased fine motor skills are not discussed in the rating criteria under Diagnostic Code 5228. To the extent that the Veteran has reported additional symptoms not already compensated for by the LOM and separate rating for left thumb numbness, the symptoms do not present with such frequency as to result in marked interference with employment and frequent periods of hospitalization. In September 2009 VA treatment records, the Veteran reported working for 29 years as a railroad worker and conductor until 1999 when he fell and had to retire. He retired due to neck and shoulder problems. See January 2011 VA treatment records. During the October 2010 VA examination, the Veteran reported being self-employed for 2 to 5 years with his fishing charter boat business, and he had not lost any time from work during the previous 12-month period. Due to his left thumb disorder, he could no longer help bait hooks or fix lures due to pain, and he could only drive the boat. In September 2015 VA treatment records, the Veteran reported that he enjoys activities such as softball, golf, hunting and fishing. He had decreased some of his leisurely activities due to increased anxiety. The March 2017 VA examiner found the Veteran's left thumb disorder would preclude occupations requiring sustained gripping and fine motor skills of the left thumb. The Veteran maintained employment as a railroad conductor for 29 years until he injured his shoulders and neck in 1999. After retirement in 1999, the Veteran has worked as a business owner with his wife of a fishing charter business, and as an artist. There is no evidence of the Veteran missing time at work due to his left thumb disorder. The Board recognizes that due to his left thumb dexterity and decreased fine motor skills, the Veteran's ability to work in the fishing industry may be limited. However, there is no evidence that the symptoms would impact his ability to work in the railroad industry based upon his 29 years of experience. The Veteran did not provide any evidence, to include during his hearing before the Board, of how his left thumb disorder would result in marked interference with his ability to work as a train conductor. The Veteran had to retire due to injuries to his neck and shoulders, not his left thumb. Based upon the evidence, the Veteran's left thumb disorder symptoms not contemplated by the rating criteria do not result in marked interference with employment and frequent periods of hospitalization. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim of entitlement to a higher extraschedular rating for residuals of a left thumb fracture, rated as traumatic arthritis, must be denied. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.