Citation Nr: 21011231 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-38 339A DATE: March 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a right thumb disability with arthritic changes is denied. FINDING OF FACT The Veteran’s right thumb disability has not been manifested by a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, there was no ankylosis. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right thumb have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5228 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to September 1971. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Legal Analysis VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 3.321 (2016); see generally, 38 C.F.R. § Part IV (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2016). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016); see also 38 C.F.R. § 3.102 (2016). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right thumb The RO granted service connection for the hand and thumb disability in the March 2004 rating decision and assigned a noncompensable rating. In the November 2004 rating decision, the RO increased the rating to 10 percent, effective May 9, 2003, under 38 C.F.R. § 4.71a, Diagnostic Code 7805-5228. Arthritis due to trauma and substantiated by x-ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2016). Diagnostic Code 5010 instructs to rate under Diagnostic Code 5003 (degenerative arthritis). Under that diagnostic code, arthritis of a major joint or group of minor joints is to be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2015). For the purpose of rating disabilities due to arthritis, the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a group of minor joints, ratable on parity with major joints. See 38 C.F.R. § 4.45 (2016). Where limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2016). While the thumb is not a major joint, it is a collection of minor joints for the purposes of 38 C.F.R. § 4.45. Under Diagnostic Code 5228, a 10 percent rating is warranted for limitation of motion of the thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. A 20 percent rating is warranted for limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Id. Under Diagnostic Code 7804 or 7805, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. At a September 2019 VA examination, the Veteran reported that he has pain and swelling in the right hand, which interferes with writing and grasping cups. He was noted to have two non-tender linear scars of 1.7cm and 1.3 cm x 0.1cm. On examination, there was no gap between the Veteran’s bilateral thumb pad and fingers with the thumb attempting to oppose the fingers. There was also no gap between the fingertip and proximal transverse crease of the palm. It was noted that the joint was painful on motion but that the range of motion or joint function was not additionally limited by pain, fatigue weakness incoordination, or lack of endurance following repetitive use. Upon consideration of the evidence above, the Board finds that the competent evidence of record does not support a rating in excess of 10 percent for the period on appeal. A higher 20 percent rating is not warranted under Diagnostic Code 5003 or 5010 for arthritis primarily because Diagnostic Code 5003 requires X-ray evidence of arthritis in two minor joint groups in order for a 20 percent rating to be assigned, and the thumb constitutes only one minor joint group. See 38 C.F.R. § 4.45. Further, evidence of incapacitating episodes based upon the Veteran’s condition has not been demonstrated. Therefore, even with demonstrated arthritis, a higher disability rating cannot be assigned under Diagnostic Code 5003. The Board has considered a rating under Diagnostic Code 5228. As noted above, the evidence of record, including the June 2011, August 2014 and September 2019 VA examination reports, shows that at no time has the Veteran demonstrated there are any gaps of two inches or more between the thumb pad and fingers, with the thumb attempting to oppose the fingers, or between the tips of the fingers to the proximal transverse creases. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Board has considered the application of the other potentially relevant diagnostic codes discussed above, but none are applicable in this instance. See Schafrath, 1 Vet. App. 589. For the purposes of Diagnostic Code 5224, governing ankylosis of the thumb, neither of the VA examiners nor any of the private treatment records indicate that the Veteran’s right thumb disability is manifested by ankylosis, with all of the records reflecting at least some range of motion. Id. The Veteran has also not indicated at any point that he cannot move his right wrist or thumb. Further, there is no evidence of ankylosis of any type of multiple digits on the Veteran’s right hand. 38 C.F.R. § 4.71a, Diagnostic Code 5216-5223. Finally, there is no medical evidence that so little effective function remains in the Veteran’s bilateral thumbs that he would be better served by amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5224, Note, 5152. The Veteran indicated, “This disability is almost not having a right arm.” See November 2014 VA Form 9. However, the evidence does not warrant a rating based on amputation because the VA examiners have not stated that functioning is so diminished that amputation with prosthesis would equally serve the Veteran. In September 2019, the Veteran was still able to write one page without taking a break and was able to grip items. In sum, the Board finds that the Veteran’s degenerative arthritis of the right thumb and hand most closely approximates the criteria for a 10 percent rating under Diagnostic Code 5010-5228. See 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence is against the assignment of a higher rating, and the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.