Citation Nr: 21009433 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-20 357 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left thumb disability is denied. FINDING OF FACT The left thumb disability does not result in ankylosis or a gap between the thumb pad and fingers of more than 2 inches. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a left thumb disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5228 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1980 to January 2001. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The left thumb disability is rated at 10 percent for painful motion. The Veteran contends that a higher rating is warranted. It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59. With respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must “express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand will be considered dominant. The injured hand or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. The Veteran is right-handed. His right upper extremity is the major extremity. In order to warrant a higher rating the evidence must show: favorable ankylosis involving the thumb and other fingers (Diagnostic Codes 5221, 5222 5223); unfavorable ankylosis of the thumb (Diagnostic Code 5224); or limitation of motion of the thumb with a gap of more than 2 inches (5.1cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers (Diagnostic Code 5228). The Board notes that VA regulations pertaining to the musculoskeletal system were amended effective February 7, 2021. The amendments do not affect the rating criteria applicable here, however. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). An April 2011 VA treatment record reveals the Veteran’s history of left thumb pain with increased activity. The record reports that there was moderate subluxation at the first metacarpophalangeal (MCP) joint of the thumb. Grip was strong but less so than the dominant right hand. Range of motion was normal without crepitation. There was ligament laxity. An August 2012 VA examination record reveals the Veteran’s history of aches and pains with grasping or holding objects. The Veteran denied flares. Range of motion was painful. There was not a gap between the thumb pad and the fingers. The examiner stated that the Veteran had less movement than normal of the left thumb. However, there was no additional limitation of motion after repetitive use testing and still no gap between the thumb pad and the fingers post-repetitive use testing. Motor strength was 4/5. There was no ankylosis. The Veteran reported constant use of a brace. The examiner stated that the thumb condition did not affect the Veteran’s ability to work. A March 2019 VA examination record revels the Veteran’s history of left thumb pain and decreased motion and decreased grip strength due to pain. He reported constant pain with increased pain with activity approximately weekly that lasted for most of a day to a couple of days. He reported additional decrease in grip strength and range of motion during flares, depending on the intensity of the pain from the flare. He reported use of a brace during flares. He reported that during flares, the pain radiates to the lateral side of the forearm without loss of function of the wrist joint. The left thumb had extension to 0 degrees, MCP flexion to 60 degrees, and interphalangeal (IP) flexion to 16 degrees. There was a 2 centimeter gap between the thumb pad and the fingers. The examiner explained that there was pain with opposition of the thumb and decreased range of motion at the left first MCP joint. There was no additional loss of motion after repetition, and the examiner determined pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner was unable to quantify the effect of flares. Grip strength was 5/5, and there was no atrophy or ankylosis. The MCP joint of the left hand was prominent to the right. There was no heat, redness, or swelling associated with the left first MCP joint. The examiner sated that the thumb disability would affect occupational functioning due to decreased manual dexterity, weakness or fatigue, pain, decreased strength with left thumb opposition, and problems with lifting and carrying of the left hand. An April 2020 VA examination record reveals the Veteran’s history of sharp pain and swelling. The Veteran reported monthly flares of moderate pain that last one to two days. He reported inability to grip items or use hand tools. Examination revealed no gap between the thumb pad and the fingers. The thumb had extension to 0 degrees, MCP flexion to 60 degrees, and IP flexion to 90 degrees. There was pain with motion. After repetition, the thumb had reduction of flexion to 55 degrees at the MCP joint. The examiner determined the thumb would have additional reduction of flexion of the MCP joint to 50 degrees after repeated use over time and 45 degrees during flares; otherwise range of motion remained the same. Grip strength was 5/5, and there was no atrophy. There was no ankylosis. The examiner stated that the Veteran’s occupational functioning would be affected due to pain, stiffness, and swelling and reported inability to grip items. (Continued on the next page)   After review of the evidence, the Board finds a rating in excess of 10 percent is not warranted. The record does not include any findings of ankylosis of the thumb. The record also generally reports that there is no gap between the thumb pad and fingers, the 2020 VA examiner determined there would be no gap during flares or after repeated use over time, and the greatest gap is only 2 centimeters, which is significantly greater than the five-plus centimeter gap needed for a higher rating. There is no indication that the gap would ever more nearly approximate that required for a higher rating. The Board has considered whether there is any other basis for assigning a higher or separate rating during this period but has found none. There is no evidence, including history, of associated limitation of motion of the hands/finger during this period or neurological deficit due to the thumb disorder, and the Board notes that service connection is already in effect for impairment of the radicular nerves, which contemplates loss of use of the hand. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.