Citation Nr: 21006963 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-14 396 DATE: February 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left thumb disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected PTSD alone, for the period prior to August 6, 2010, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate, for the period prior to August 6, 2010, is granted FINDINGS OF FACT 1. Over the entire appeal period, the Veteran’s left thumb disability has been manifested by painful motion, with no gap between the thumb pad and fingers. no ankylosis, and no evidence of arthritis. 2. Prior to August 6, 2010, the Veteran’s PTSD alone precluded substantially gainful employment. 3. Prior to August 6, 2010, in addition to PTSD, the Veteran has separate and distinct service-connected disabilities that are independently ratable as 60 percent disabling or more. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for a left thumb disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228. 2. Prior to August 6, 2010, the criteria for entitlement to a TDIU based on PTSD alone have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. 3. Prior to August 6, 2010, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued in June 2008, April 2012,, August 2013, and September 2020 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing held before the undersigned in June 2014. The issues herein were previously remanded by the Board in February 2015, August 2017, April 2018 and June 2020. 1. Entitlement to a rating in excess of 10 percent for a left thumb disability The Veteran seeks an increased rating for a left thumb disability. This condition is rated as 10 percent disabling over the entire appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Limitation of motion of the thumb is contemplated in 38 C.F.R. § 4.71a, Diagnostic Code 5228. Diagnostic Code 5228 assigns a 10 percent rating for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is 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. There is no differentiation between the ratings assigned for the major and minor hands. When ankylosis is present, thumb disabilities may be rated under other diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5220, 5221, 5222, 5223, 5224. In November 2007, a VA examiner diagnosed left thumb subluxation. The Veteran reported “nonspecific aching in the first metacarpophalangeal joint when the weather changes.” These flares, related to weather, resolved within a couple of days. This condition did not limit his ability to function. The examiner observed full range of motion from 0 to 90 degrees. X-rays did not reveal arthritis. In October 2008, the Veteran was treated for left hand pain. Treatment records do not indicate any specific reports of left thumb pain. X-rays were taken and no left thumb arthritis was observed. In May 2012,, a VA hand and fingers condition examination was provided. The examiner confirmed the diagnosis of left thumb subluxation. He observed current symptoms of painful swelling of the left hand joints and aching. The Veteran reported flares during which his left thumb mobility was limited, and he was unable to perform daily activities. Initial range of motion was normal and there was no evidence of painful motion for the left thumb. The examiner did not note any gap between the thumb pad and the fingers. After repetitive use testing, the left thumb range of motion was reduced and weakened. Pain was noted with left thumb movement. The Veteran’s left hand grip was reduced to 4/5 and the examiner described reduced joint strength as limiting functional ability. There was no left thumb ankylosis. Left hand x-rays indicated joint deformities in the second, third, and fourth fingers. These x-rays did not indicate any deformity or arthritis of the left thumb. In June 2014, the Veteran testified that his left thumb condition was subject to flares. The flares were characterized by intense pain and swelling. His ability to pick things up was reduced during flares. In October 2016, a second VA hand and finger examination was provided. The Veteran reported left thumb flares twice each week. Initial range of motion was normal and there was no gap between the thumb and fingers. The examiner observed left thumb tenderness with moderate pressure, full grip strength, and no ankylosis. X-ray findings indicated subluxation left first MCP (metacarpophalangeal joint). The examiner did not note any arthritis. In October 2017, a third VA hand and finger examination was provided. The Veteran reported he experienced increased pain, stiffness and decreased range of motion in his left thumb a few times each week. On examination, his initial range of motion was normal. There was no gap between the left thumb pad and fingers. Range of motion was not reduced after observed repetitive use. There was no ankylosis. In September 2019, a fourth VA hand and fingers examination was provided. The Veteran reported increased thumb pain, with stiffness and reduced range of motion, a few times each week. Left thumb pain reduced his ability to lift and perform other activities. Initial range of motion was described as abnormal, but there was no gap between the thumb pad and fingers. The examiner estimated that pain during flares decreased functional ability but did not result in a gap between the thumb pad and fingers. There was no ankylosis. The Veteran had difficulty with activities of daily living (personal hygiene and meal preparation.) He was unable to perform continuous writing, continuous keyboarding, on tasks that required a continuous grip. In August 2020, a fifth VA hand and fingers examination was provided. The Veteran continued to report flares of left thumb pain three or four times each month. During flares he is unable to use his thumb. Initial range of motion was reduced and painful, but there was no gap between the pad of the thumb and the fingers. The examiner indicated the examination was performed during a flare. He observed, during flares and with repeated use over time, pain decreased the left thumb functional ability, but there was no gap between the pad of the thumb and the fingers. There was no ankylosis. New x-rays were obtained. There was no evidence of arthritis. The examiner noted pain with passive, non-weightbearing movement. This examination provided the evaluation required under Sharp and Correia. Over the entire appeal period, the Veteran reported pain in his left thumb. As a layperson, he is competent to report his experience of pain. Layno v. Brown, 6 Vet. App. 465 (1994). His reports, which were consistently provided over the entire appeal period, are credible. Under 38 C.F.R. § 4.59, actually painful joints due to healed injury are entitled to the minimal compensable rating for the joint. Diagnostic Code 5228 provides for a minimal compensable rating of 10 percent for the thumb based on limitation of motion. 38 C.F.R. § 4.71a. Lay evidence, such as the Veteran’s reports of pain, are sufficient to support the currently assigned 10 percent rating for a left thumb disability, pursuant to section 4.59, based on painful motion. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). Over the entire appeal period, a rating in excess of 10 percent is not warranted. There is no evidence of any gap between the thumb pad and fingers. A 20 percent rating under Diagnostic Code 5228 is not supported. Additionally, there is no evidence of left thumb ankylosis and no evidence of any left thumb arthritis. A rating under other diagnostic codes applicable to the thumb, or for arthritis, are not indicated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5220, 5221, 5222, 5223, 5224. In sum, a disability evaluation in excess of 10 percent for the Veteran’s service-connected left thumb disability is not warranted. The preponderance of the evidence shows that the criteria for ratings higher than 10 percent have not been met. The benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating due to individual unemployability (TDIU), prior to August 6, 2010 3. Entitlement to special monthly compensation at the housebound rate, prior to August 6, 2010 Criteria for TDIU TDIU may be an element of a claim for an increased disability rating when unemployability is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining entitlement to a TDIU, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether TDIU should be awarded is not a medical issue but is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015). A combined disability rating of 100 percent does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). Criteria for SMC A veteran is presumed to be seeking the maximum benefit allowed by law or regulation. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). VA has a duty to fully and sympathetically develop a claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Relevant to this appeal, a claim for increased disability compensation may include the “inferred issue” of entitlement to special monthly compensation even though the claimant has not expressly placed entitlement to special monthly compensation at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Special monthly compensation at the housebound rate is payable where a veteran has a single service-connected disability rated 100 percent, and either (1) has additional service-connected disability or disabilities independently ratable as 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Entitlement to TDIU and SMC prior to August 6, 2010 Here, a February 2011 rating decision allowed entitlement to a TDIU from August 6, 2010. The current appeal stream, which includes claims for increased initial ratings, was initiated with a claim filed within a few days of the Veteran’s September 2007 retirement from active service. The record reflects the Veteran was not employed at any time after his military career concluded. Thus, the issue of entitlement to a TDIU, prior to August 6, 2010 is raised by the record and remains on appeal. See Rice, supra. Currently, entitlement to SMC has been granted from August 6, 2010. As the Veteran is presumed to be seeking to maximize his benefits, a claim of entitlement to SMC prior to August 6, 2010 is inferred. Prior to August 6, 2010, service connection was established for PTSD (50 percent disabling), sleep apnea (50 percent disabling), a back disability (20 percent disabling), a right shoulder disability (30 percent disabling), a neck disability (20 percent disabling), left knee limitation of motion (10 percent disabling), left knee instability (10 percent disabling), right knee arthritis (10 percent disabling), right knee instability (10 percent disabling), a left shoulder disability (10 percent disabling), a left thumb disability (10 percent disabling), hemorrhoids (10 percent disabling), and a right shoulder scar (10 percent disabling). Service connection was also established and noncompensable ratings applied for a right shoulder scar, pseudofolliculitis barbae, and eczema. The Veteran’s combined rating was 100 percent. However, as explained below, the issue of TDIU is not moot because his disability picture allows for additional benefits based on SMC. See Bradley, supra. As documented in a November 2007 VA PTSD examination, the Veteran retired as a Command Sergent Major after serving for 30 years in the U. S. Army. In this position, he was the senior enlisted advisor to commanding officers. He separated from military service with experience working at the highest levels of the military command structure. In addition, he reported completing an associated degree in general studies. The November 2007 VA PTSD examiner observed that the Veteran’s “current psychosocial functioning [was] poor.” He was having “difficulty transitioning to civilian life.” He had no connections, other than his wife, to people outside of the military. He participated only in solitary activities and was distrustful and suspicious in most situations. Due to his PTSD, the Veteran was hypervigilant, experienced nightmares, had intense psychological distress at exposure to cues related to traumatic events, and had diminished interest and participation in significant activities. In particular, the examiner observed the Veteran “was attempting to contain his emotional reactions and minimize to some degree his mental health symptoms so as not to be seen as ‘ill or not in control.’” She recommended that the Veteran quickly enroll in a treatment program, although she predicted the Veteran would have some “difficulty responding initially to therapy.” Although the examiner opined PTSD did not result in total occupational and social impairment, she indicated that the Veteran’s judgment, family relations, and mood were deficient. Additionally, the 2010 VA examination that assessed the Veteran’s PTSD noted that the Veteran’s “extreme problems” with irritability and mood swings “continue” and that his nightmares “continue.” The 2010 examiner also noted that the Veteran’s depression, which the examiner noted was tied to his PTSD, began about a year and a half prior and that the depression exacerbated his trouble sleeping. Thus, the 2010 VA examination report indicates that the more significant PTSD symptoms of irritability, mood swings, nightmares, depression and sleep difficulties began prior to 2010. (Continued on the next page)   Resolving reasonable doubt in favor of the Veteran, the Board finds, despite his accomplished military service and education, the Veteran’s PTSD symptoms of poor judgment, diminished interest, suspiciousness, difficulty being around others, irritability, mood swings, nightmares and sleep difficulty prevented him obtaining and maintaining substantially gainful employment prior to August 6, 2010. Thus, entitlement to a TDIU based on the Veteran’s service-connected PTSD, without consideration of his other disabilities, is warranted prior to August 6, 2010. See 38 C.F.R. § 4.16(a). The Veteran’s back, neck, right shoulder, left shoulder, right knee, left knee, and left thumb conditions affect an anatomical body system (orthopedic) which is unrelated to his totally disabling psychiatric disability. Prior to August 6, 2010, these orthopedic conditions were independently rated as 70 percent disabling. Accordingly, the criteria for entitlement to special monthly compensation at the housebound rate prior to August 6, 2010 are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.