Citation Nr: 21077591 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-16 236 DATE: December 30, 2021 ORDER A 10 percent rating is granted for the Veteran's right thumb disability from (the earlier effective date of) November 6, 2014, subject to the regulations governing payment of monetary awards; a rating in excess of 10 percent for the right thumb disability is denied. FINDINGS OF FACT 1. From (the earlier effective date of) November 6, 2014, the right thumb disability is reasonably shown to have been manifested by functional loss with painful motion. 2. At no time under consideration is the Veteran's right 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. CONCLUSION OF LAW The Veteran's right thumb disability warrants a 10 percent (but no higher) rating throughout (from the earlier effective date of November 6, 2014). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2006 to February 2007, and from September 2007 to November 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2014 Department of Veterans Affairs (VA) rating decision. In February 2019 and September 2021, this matter was remanded for additional development. An August 2020 rating decision awarded an increased (to 10 percent) rating for right ulnar ligament tear with surgical correction, effective December 19, 2019. At the outset, the Board finds there has been substantial compliance with its February 2019 and September 2021 remand directives pertaining to this matter. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional evidence (VA outpatient treatment records and VA examinations for the service-connected back, neck, and headache disabilities) were received in the record subsequent to the October 2021 supplemental statement of the case. The records do not contain information material to the matter of the rating for the right thumb disability (they do not discuss current symptomology of that disability). Therefore, a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence (or return of the record to the AOJ for that purpose) is not required. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where the appeal is from the initial rating decision assigned with an award of service connection, 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). Initially, the Veteran's right thumb condition was rated as noncompensable under 38 C.F.R. §4.71a, Diagnostic Code 5228 for limitation of motion of the thumb. The November 2020 rating decision awarded an increased (to 10 percent) rating, effective December 19, 2019, and characterized the right thumb disability under Diagnostic Code 5228-5215. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code indicated that the right thumb disability was rated, by analogy, under the criteria for limitation of motion of the wrist. Regarding the diagnostic codes assigned for the rating of the service-connected right thumb disability, there is a specific diagnostic code for rating limitation of motion of the thumb (Diagnostic Code 5228). Under Diagnostic Code 5228, 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.). A 20 percent rating is warranted for limitation of motion of either thumb with a gap of more than two inches (5.1 cm.). 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Board finds that rating the right thumb disability under Diagnostic Code 5228 criteria is appropriate, considering the likely etiology, and those criteria are not prejudicial to the Veteran. The Veteran's right thumb may also possibly be rated under Diagnostic Code 5224 (for ankylosis) or Diagnostic Code 5152 (for amputation). As her right thumb is not shown to be/have been ankylosed, and has not been amputated, the criteria for rating under those diagnostic codes are not for consideration here. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis (established by X-ray findings) is rated based on limitation of motion under the appropriate Codes for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When motion of a specific joint is painful, but the limitation of motion found is noncompensable under the appropriate diagnostic code, a 10 percent rating is warranted for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under code 5003. Note 1 following Diagnostic Code 5003 provides that a rating under that Diagnostic Code will not be combined with ratings based on actual limitation of motion. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59 , painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On April 2014 VA hand and finger examination (conducted during service following a March 2014 Joint Disability Evaluation Board Claim), a sprain of the right thumb was diagnosed. The Veteran reported symptoms of pain and stiffness in the thumb. On examination, there was no limitation of motion or evidence of painful motion shown for any fingers. Service treatment records (STRs) note she underwent right thumb metacarpophalangeal (MP) ulnar collateral ligament (UCL) reconstruction surgery on July 2, 2014. A September 2014 clinical record notes she reported complaints of stiffness when her splint was removed. On examination, the MP joint was stiff without hyperextension with range of motion of 0-30 with pain over the dorsum of the MP joint. The provider opined it will likely take 2-3 months to regain function of the hand. The Veteran separated from service on November 5, 2014. A November 19, 2014 VA treatment record notes the Veteran reported joint pain and that there was no loss of grip (except some problem with the right thumb since her injury and surgery). A November 20, 2014 VA treatment record notes complaints of right thumb pain. A January 2017 VA treatment record notes complaints of right wrist and right thumb pain for the past 3-4 weeks. She reported experiencing stiffness and the thumb occasionally locking up. On a February 2, 2017 VA hand and finger examination, the Veteran reported right thumb pain and swelling, which had increased since the 2014 surgery. She reported having issues with tingling sensations of her right thumb and wrist with intermittent swelling and decreased range of motion. She reported that her right thumb disability limits picking up things due to cramping and aches and that she experiences flare ups four times per month with increased aching at nighttime. She reported that her thumb stiffens at times and she treats the condition with a right thumb brace and Tylenol. A right UCL tear with surgical correction was diagnosed. The examiner noted a March 2015 MRI found: (1) suspect at least partial thickness disruption of the distal attachment of the ulnar collateral ligament; and (2) uncertain significance of intermediate signal and slight thickening of the extensor tendon approaching the proximal phalangeal attachment. On examination of the right thumb, range of motion with flexion of the MCP and interphalangeal (IP) joints were abnormal while no gap between the right thumb pad and the fingers was found; the examiner opined the range of motion itself does not contribute to functional loss. The examiner remarked that there is evidence of pain with the joints are used in non-weight bearing. The examiner was unable to determine additional functional loss with repeated use over time or during flare ups, noting the Veteran was not being examined immediately with repeated use over time or during a flare up. Additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, ect; weakened movement due to muscle or peripheral nerve injury, ect; and, swelling. The thumb was not ankylosed and the muscle strength was normal (5/5). The Veteran reported regular use of a brace for the right finger strain. The examiner noted (citing to the 2015 MRI report) that diagnostic testing did not show arthritis. The examiner opined that the Veteran's right thumb disability impacts her ability to hold anything in her right hand due to issues with her thumb. A February 22, 2017 VA MRI report of the right hand found scarring from the previous surgery of the thumb and mild arthritis. The VA provider referred her to occupational therapy. On the March 2017 VA Form 9, the Veteran stated that she continues to suffer from stiffness of the right thumb, swelling, limited mobility/flexibility, and pain when trying to open things following the right thumb surgery in service. She reported she can no longer write, open things without pain, play with her children without having her thumb constantly pop or be in pain, or type without having to take breaks. An April 2017 VA treatment record notes an assessment of chronic right thumb pain that is being managed by a private provider. On December 2019 VA peripheral nerves examination, the Veteran reported she has pain and tingling sensations in the right thumb with decreased strength. A peripheral nerve condition was not found. On December 2019 VA wrist examination, right UCL tear with surgical correction was diagnosed. The Veteran reported the right thumb condition impacts her ability to write, text, comb her hair, and hold onto objects with her right hand. On examination, her right wrist range of motion was abnormal; ankylosis was not found. The examiner opined that the right thumb condition limits her ability to carry objects heavier than 50 pounds, typing, combing her hair, texting, and writing. On October 2021 VA hand and finger examination, the Veteran reported her condition had progressed/worsened. She reported the current symptoms included pain and loss of range of motion. She reported daily flare ups of sharp pain that last 3-4 hours and are caused by lifting, carrying, mousing, and typing. During a flare up, she reported she is not able to perform any job duties requiring gripping, grasping, lifting, carrying, repetitively using a mouse or repetitively keyboarding. Range of motion testing found a gap of .5 cm with active motion and 5.0 cm with passive motion; right thumb MCP and IP flexion was to 30 degrees. There was evidence of thumb pain with active and passive motion which causes functional loss and contributes to contributes to deficits in gripping, grasping, lifting, carrying, repetitively using a mouse or repetitively keyboarding. Observed repeated use testing could not be done due to significant pain on initial range of motion testing. The examiner opined that pain, fatiguability, and weakness significantly limits functional ability with repeated use over time and during flare ups. The examiner opined that a gap of 2.5 cm occurred with repeated use over time and during flare ups and right thumb MCP and IP flexion was reduced to 25 degrees. Right hand grip strength was 4/5. The thumb was not ankylosed. The examiner opined that the Veteran's right thumb disability impacts her ability to perform any job duties requiring gripping and grasping, lifting, carrying, repetitively using a mouse or repetitively keyboarding. At the outset, it is noteworthy that determining this matter has been complicated by the Veteran's failure to cooperate with VA attempts to obtain private treatment records. The February 2019 Board remand requested the AOJ to undertake appropriate development to obtain all outstanding VA and private treatment records. An October 2019 VA letter to the Veteran requested her to submit authorizations for VA to obtain private treatment. She has not responded; it is assumed that no such private records exist (or that any existing records do not support her claim). Regardless, VA cannot acquire those records for consideration without her authorization. VA obtained updated VA treatment records. The Veteran's right thumb disability has been assigned staged ratings of 0 percent from November 6, 2014 (the effective date of service connection) to December 19, 2019, and 10 percent from that date (under Code 5228-5215). As addressed above, the right thumb disability is more appropriately rated under Code 5228, for limitation of thumb. On review of the record, the Board finds that a 10 percent rating, but no higher, is warranted for the right thumb disability throughout prior to December 19, 2019. The record reasonably shows functional loss and painful motion. While the April 2014 VA examination did not find limitation of motion or evidence of painful motion of the right thumb, the Veteran underwent right thumb reconstruction surgery following that examination. Following the July 2014 surgery, reduced range of motion was found (see September 2014 clinical record) and she continued to report issues with her grip and pain (see November 2014 VA treatment records). Furthermore, arthritis of the right thumb was found on February 2017 diagnostic testing. On February 2017 VA examination, the Veteran complained of painful motion (although no gap was found, the flexion of the right thumb MCP and IP was abnormal). The examiner did not reject the Veteran's reports of pain (implicitly accepting the complaint at face value). On October 2021 VA examination, clinical evaluation found an actual gap of 5.0 cm with passive motion. Such findings (and noted limitations) warrant a 10 percent rating under 38 C.F.R. §§ 4.40 and 4.59 for functional loss with painful motion is warranted throughout. The analysis proceeds as to whether a rating in excess of 10 percent is warranted at any time under consideration. A 20 percent rating is warranted under Code 5228 when there is 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; the greatest degree of limitation of thumb motion found on any examination was on the October 2021 VA examination when initially there was 5.0 cm gap found with passive motion. While the examiner was unable to conduct observed repeated use range of motion testing due to pain, the examiner considered the evidence that suggest pain, fatigability, and weakness cause additional functional loss after repeated use over time and during flare ups and opined that would cause have lost 5 additional degrees of right thumb MCP and IP flexion and would result in a gap less than 5.1 cm. In other words, the greatest degree of limitation of motion shown, even considering factors of pain, repetitive use, and flare ups, falls squarely within the parameters of the criteria for the 10 percent rating under Code 5228 currently assigned. Additionally, right hand grip strength (which requires thumb motion) was noted as 4/5 on the October 2021 examination, which is evidence weighing against a finding of more substantial limitation of thumb motion. Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the right thumb disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.