Citation Nr: 21013629 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-39 156 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected left thumb disability is denied. FINDING OF FACT The Veteran’s left thumb disability has been manifested by a gap of, at most, two centimeters (cm) between the left thumb pad and the fingers. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left thumb disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 2004 to January 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, a February 2015 rating decision granted service connection for left thumb disability. A non-compensable rating was assigned pursuant to 38 C.F.R. § 4.71a, DC 5228, limitation of motion of the thumb. The non-compensable rating was based on a “diagnosed disability with no compensable symptoms.” The Veteran filed a timely notice of disagreement (NOD) as to the non-compensable rating in September 2015. In an August 2016 VA Form 9 the Veteran indicated a 10 percent rating would satisfy his appeal. In October 2018 the Board remanded the Veteran’s increased rating claim for an examination to determine the current nature and severity of his left thumb disability. The Veteran revised his appeal in an August 2019 Statement in Support of Claim to ask for a 30 percent rating. A September 2020 rating decision increased the Veteran’s rating for left thumb disability from 0 to 10 percent. In December 2020, the issue was again remanded. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's left thumb disability is evaluated under Diagnostic Code 5228. Diagnostic Code 5228 assigns a noncompensable evaluation for limitation of motion of the thumb 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. A 10 percent evaluation is warranted for limitation of motion of the thumb 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. A 20 percent evaluation is warranted for limitation of motion of the thumb 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. Entitlement to a rating in excess of 10 percent for service-connected left thumb disability is denied. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran's rating for a left thumb disability is consistent with a 10 percent rating for the entire appeal period. A review of the medical records shows that the Veteran had VA examinations for his left thumb in November 2014, July 2015, October 2019, and September 2020. The Veteran had an in-person VA examination in November 2014. He was diagnosed with a resolved left thumb fracture and left thumb strain. The Veteran reported having fractured his left thumb prior to enlistment. At the time of injury, the thumb was splinted and it healed completely. However, the Veteran experienced intermittent pain in his left thumb IP (interphalangeal) joint during service. The examiner did not observe limitation of motion, evidence of painful motion, or loss of function of the thumb, even after repetitive use testing. Neither did the examiner note ankylosis. However, the examiner noted the Veteran showed tenderness or pain to palpitation, and he had some difficulty gripping objects using his left thumb. See November 2014 C&P Exam, pages 27-30. The Veteran had another VA exam in July 2015. The Veteran endorsed flare-ups that impacted the function of the hand, in which the joint would become swollen and the thumb felt abnormal. During the exam, the Veteran reported that he had pain in his left thumb joint, but he was still able to move it back and forth. During initial range of motion (ROM) measurements, the examiner did not observe limitation of motion or evidence of painful motion for the thumb. Likewise, after repetitive-use testing, no limitation of motion of the fingers was observed. Neither was a gap observed when the Veteran attempted to oppose his thumb pad and fingers post-repetitive-use testing. The examiner assessed no functional loss or impairment of any of the fingers or thumbs, and noted the Veteran did not have ankylosis. However, the Veteran did show tenderness or pain upon palpitation of the left thumb joint. See August 2015 C&P Exam. In his September 2015 NOD, the Veteran said his left thumb had gotten worse over time with a lot of pain. See September 2015 Notice of Disagreement. In his August 2016 appeal, the Veteran reported his thumb could not fully bend all the way down. He further reported pain in the joint of the thumb, saying that on most days it hurt when he had to use it. See August 2016 Form 9. In the Veteran’s August 2019 Statement in Support of Claim, he reported his left thumb was worse, and had been aggravated by 10 years of service. He said his thumb’s ROM had deteriorated to the point that he could not fully bend or extend it. He also reported his thumb was swollen and disformed, saying he could not squeeze with much force at all and he barely had the strength to make a closed fist. He said the most he could lift was 20-25 pounds with certain objects. See August 2019 VA 21-4138 Statement in Support of Claim. The Veteran was again seen for a VA examination October 2019. During the in-person examination, the Veteran endorsed symptoms of swelling, pain, and discomfort, especially when closing his hand. He reported this made it difficult for him to, for example, tie his shoes or carry a grocery bag. In particular, the Veteran reported his thumb was the reason he could not close his hand all the way, and that he could not put his left thumb beside his pointer finger. On initial ROM testing, the Veteran had maximum extension to 45 degrees of the metacarpophalangeal (MCP) joint and 0 degrees of the proximal IP (PIP) joint. He showed max flexion to 45 degrees of the MCP joint and 30 degrees of the PIP joint. Additionally, when attempting to bring the thumb pad to the fingers, a 0.5 cm gap was observed. The examiner also observed pain that caused functional loss, noting that finger flexion, finger extension, and opposition with thumb caused pain. The examiner further noted that the Veteran did not flex or extend at the thumb due to pain and acknowledged objective evidence of localized tenderness or pain on palpitation of the joint. The pain ultimately prevented the Veteran from performing three repetitions of repetitive-use testing. After repetitive-use testing, the examiner noted that the results were medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. After repetitive use, the Veteran had maximum extension to 45 degrees of the MCP joint and 45 degrees of the PIP joint. He showed max flexion to 45 degrees of the MCP joint and 45 degrees of the PIP joint. Additionally, after repetitive use the gap between the Veteran’s thumb and fingers was 2.0 cm. Throughout the exam, the examiner noted no ankylosis. See October 2019 C&P Exam. The Veteran had his most recent VA examination in September 2020. Subjectively, the Veteran reported a sharp and achy pain and constant swelling of the left thumb, which came and went and was aggravated with use, e.g., trying to open a jar. The Veteran stated that his left hand felt the same every day and did not change. During initial ROM testing, the examiner observed a 0.6 cm gap between the pad of the thumb and the fingers. On examination, the Veteran had maximum extension to 30 degrees of the MCP joint and 0 degrees of the PIP joint. He showed maximum flexion to 45 degrees of the MCP joint and 90 degrees of the PIP joint. After repetitive-use testing, the examiner did not observe additional loss of function or ROM and therefore did not further measure the Veteran’s ROM. The examiner noted no ankylosis of the thumb. See September 2020 C&P exam, pages 7, 9. Based on the foregoing, the Board finds that the Veteran has at most a 2.0 cm gap between the pad of the thumb and the fingers. At no point during the appeal period was there 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. Ordinarily this measurement would warrant a non-compensable rating under Diagnostic Code 5228; however, the Board observes that the September 2020 rating decision increased the Veteran’s rating to 10 percent on the basis on painful movement under 38 C.F.R. § 4.59. The Board further notes that, although the measured gap between the thumb and fingers improved to 0.6 cm during the September 2020 VA examination, the Veteran maintained his endorsement of a consistent hand disability that was aggravated by activities such as trying to open a jar. Therefore, the Board finds that the currently assigned 10 percent disability rating for the thumb already contemplates any functional impairment related to pain, weakness, fatigability, or limitation of motion and does not warrant a higher rating. See DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995) (factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use); 38 C.F.R. § 4.45. For these reasons, the Board finds that a rating in excess of 10 percent for the Veteran's left thumb disability is not warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.