Citation Nr: 21008536 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-58 068 DATE: February 17, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for residuals of right thumb hemangioma is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s residuals of right thumb hemangioma manifested by pain resulting in functional loss, to include less movement and strength, but without symptomatology that more nearly approximated a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for residuals of right thumb hemangioma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5228, 5229, 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from January 2004 to May 2004, from October 2004 to March 2005, and from September 2010 to August 2011. In December 2013, the Boston, Massachusetts, Regional Office (RO) of the United States Department of Veterans Affairs (VA) granted service connection for residuals of right thumb hemangioma excision and assigned a noncompensable disability rating effective June 6, 2013. The Veteran filed a timely notice of disagreement and later appealed the rating decision to the Board of Veterans’ Appeals (Board). In November 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In a January 2020 decision, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination as to the Veteran’s right-hand disability because a 2013 VA examination was too old to provide any probative value to the Board, and the Veteran asserted his disability had worsened since 2013. The RO obtained a VA examination in March 2020 and issued an August 2020 rating decision and supplement statement of the case granting the Veteran an initial disability rating of 10 percent, effective June 6, 2013, for right thumb hemangioma excision. The case now returns to the Board. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability rating in excess of 10 percent for residuals of a right thumb hemangioma Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In cases where staged ratings are appropriate, it is necessary to consider all “the evidence of record from the time of the veteran’s application.” Id. at 127. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Disability Rating Schedule Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. An initial rating is one assigned at the time service-connection is granted. Generally, the effective date of an initial rating is the date of receipt of the claim/request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). 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, 126 (1999). A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. Like an increased rating, the effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Limitation of Motion of Digits of the Hand – Rating Criteria The Veteran is service connected for right thumb hemangioma excision (right thumb disability). His right thumb disability is rated under 38 C.F.R. § 4.71a, DC 5228, “Limitation of Motion of Individual Digits.” Diagnostic Code 5228 provides as follows: Rating (%) Major Minor Thumb, limitation of motion: 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 20 20 With a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers 10 10 With 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 0 0 The terms “major” and “minor” refer to a veteran’s “dominant” and “non-dominant” hand, respectively. See Yonek v. Shinseki, 722 F.3d 1355, 1357 (Fed. Cir. 2013); 38 C.F.R. § 4.69. In addition, when VA evaluates musculoskeletal disabilities under the rating schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Petitti v. McDonald, 27 Vet. App. 415, 424 (2015). These regulations permit an adjudicator to award, where warranted, a higher disability rating than would otherwise be supported by an appliable DC. See Thompson v. McDonald, 815 F.3d 781, 785‒86 (Fed. Cir. 2016). Under section 4.40, a veteran’s disability rating may be elevated where there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups. 38 C.F.R. § 4.40; Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). Pain, standing alone, is not sufficient to warrant a higher rating under section 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001) (reaffirming that pain must affect some aspect of “the normal working movements of the body . . . in order to constitute functional loss”). Under section 4.45, a veteran’s disability rating may be elevated where there is evidence of less or more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, and weight-bearing, to include during flare-ups. 38 C.F.R. § 4.45; Lyles, 29 Vet. App. at 117. Under section 4.59, a veteran may only be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of “actually painful, unstable, or malaligned joints.” 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Analysis The Veteran’s right thumb disability is currently rated as 10 percent disabling due to the pain he experiences on movement, which is consistent with 38 C.F.R. § 4.59. See August 2020 Rating Decision. Thus, the only issue presented is whether the Veteran is entitled to a higher disability rating, either under DC 5228 or another DC. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (“[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.”). The Board finds the Veteran’s right thumb disability is appropriately rated at 10 percent disabling for the entire period on appeal under DC 5228. According to the Veteran’s December 2013 in-person VA examination, the Veteran’s right thumb disability resulted from an in-service injury that led to a 2008 excision of a sclerosing hemangioma on his right thumb. The Veteran’s dominant hand is his right hand. The examiner recorded that the Veteran experienced flare-ups with repetitive range or motion activity of his right thumb that resulted in discomfort, but there were no symptoms with general use or rest. At the time of the examination, the Veteran did not have limitation of motion, ankylosis of his right thumb, or loss of right-hand grip strength. The examiner found the Veteran did not have a gap between his right thumb pad and his right ringers post-testing. The examiner also found the Veteran did not have any functional loss or functional impairment of his right thumb. X-rays were taken during the December 2013 VA examination, which were unremarkable to the examiner. Absent evidence to the contrary, the Board finds the December 2013 VA examiner was competent to examine the Veteran and provide pertinent medical findings and conclusions. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the VA examiner’s examination, findings, and conclusions credible and probative. The Board recognizes that since 2013, numerous legal changes have occurred that require specific testing protocols, such as opposite extremity testing, range-of-motion testing, and measurement documentation. Even though the 2013 VA examination is not consistent with the current state of the law, the Board still finds the examiner’s observations, findings, and conclusions have some probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight.”). During his November 2019 Board hearing, the Veteran testified that he suffered from pain, numbness, and loss of grip strength in his right hand/thumb. He kept medical treatment to a minimum, self-treating with over-the-counter medication and hand strength-training exercises. He explained that he used to paint houses for a living but was no longer able to hold a paintbrush for long periods of time. He also noticed difficulty doing daily activities, such as washing dishes. The Veteran is competent to report his sensations of pain and experiences associated with his right hand/thumb. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms). The Board finds his lay testimony credible and probative in this case. The Veteran was afforded a VA-contracted examination in February 2020, consistent with the Board’s January 2020 remand directive. The examiner conducted an in-person examination, considered lay evidence, including the Veteran’s lay statements as to his right thumb disability, and reviewed his VA electronic folder. The Veteran reported he experienced loss of right handgrip strength, spontaneous right-hand cramping, and right-hand pain during flare-ups. The Veteran also reported functional loss or functional impairment of his right hand based on his inability to maintain his grip on paintbrushes or rollers. As to his right thumb’s range of motion, the examiner concluded it was abnormal or outside the normal range. The Veteran’s thumb’s flexion was limited to 60 degrees (metacarpophalangeal — intermediate joint of the thumb) and 30 degrees (interphalangeal — the tip of the finger just before the fingernail starts). The examiner concluded this abnormal range of motion contributed to the Veteran’s suboptimal right handgrip strength. The examiner noted pain with opposition of the thumb during testing and mild tenderness of the base of the thumb due to his diagnosed disability. The examiner did not, however, find a gap between the pad of the thumb and the fingers of the right hand. The Veteran was able to perform repetitive use testing, which did not result in additional loss of function or range of motion. The examiner concluded that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner documented the Veteran’s right handgrip strength was 4 out of 5 on a 5-point scale, which was rated as “active movement against some resistance.” This was consistent with muscle atrophy. The examiner found no additional contributing factors to the Veteran’s right thumb disability other than those already addressed. Absent evidence to the contrary, the Board finds the February 2020 VA-contracted examiner was competent to examine the Veteran and provide pertinent medical findings and conclusions. Cox, 20 Vet. App. at 569. The Board also finds the VA examiner’s examination, findings, and conclusions credible. Moreover, the February 2020 VA-contracted examiner’s examination, findings, and conclusions are the most probative medical evidence of record as to the Veteran’s current right thumb disability. From the time the Veteran filed his applicable for service connection for his right thumb disability, on June 6, 2013, through the present, the Veteran has competently and credibly described the pain and limitations he has experienced with his right thumb. The Board observes that his statements to the VA examiner in 2013, his testimony during the November 2019 Board hearing, and his statements to the February 2020 VA-contracted examiner are consistent with each other as they relate to his right thumb disability. This lends support to the Veteran’s credibility. As to the medical evidence, neither the 2013 VA examiner nor the February 2020 VA-contracted examiner found that the Veteran suffered from a gap of one to two, or of more than two inches between the right thumb pad and the right fingers, with the thumb attempting to oppose the fingers, which are the criteria for a 10 and 20 percent disability rating under DC 5228. The Board finds this medical evidence the most competent, credible, and probative evidence of record. Nor is there any lay evidence that would meet the rating criteria under DC 5228. Therefore, the evidence is against finding that the Veteran’s right thumb disability meets any of the rating criteria within DC 5228, to include a higher rating. Nevertheless, looking to 38 C.F.R. § 4.40, the Board finds the Veteran’s credible and probative lay statements and testimony establishes that he suffered from functional loss due to pain on movement and diminished grip strength throughout the pendency of the appeal. In addition, the Veteran’s February 2020 VA-contracted examination showed that he had limited flexion of the joints in his right thumb. This symptomatology is not fully accounted for within DC 5228. Diagnostic Code 5228 generally accounts for grip strength and flexion by measuring gap-space, but it does not specifically account for pain and diminished strength. Furthermore, 38 C.F.R. § 4.59 instructs the Board to award the minimum compensable disability rating—which is 10 percent under DC 5228—when there is evidence of actual pain, which there is. Consistent with the foregoing regulations, the Board finds a 10 percent disability rating under 5228 is appropriate for the entire period on appeal. The Board finds the Veteran is not entitled to 20 percent disability rating because his symptomatology throughout the appeal period did not indicate limitation that is consistent with such a rating. The Veteran’s statements and testimony indicate that he is able to grip items, but that he is unable to do so for extended periods of time. This is in contrast to the 20 percent rating criteria that contemplates a gap between the thumb pad and individual fingers indicating a substantial inability to grip in general, not just after repetitive use. The Veteran’s limited flexion, pain, and muscle atrophy are not so severe that he is unable to use his right thumb or has a general inability to grip. His symptomatology has been relatively consistent since he filed his claim in June 2013. Accordingly, pursuant to 38 C.F.R. §§ 4.40 and 4.59, the Board finds the appropriate rating for the Veteran’s right thumb disability is the minimum compensable rating, 10 percent, under DC 5228 for the entire period on appeal, and staged ratings are not appropriate. A higher rating of 20 percent is not warranted during the appeal period. The medical evidence of record does not indicate that the Veteran has arthritis in his right hand/thumb. There is no evidence ankylosis of the right thumb. There is no evidence any other right-hand finger is affected. Therefore, the Board finds that without such symptomatology, no other DC is appliable to the Veteran’s right thumb disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.