Citation Nr: 21014277 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-04 273A DATE: March 11, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for a right thumb disability, characterized as DeQuervain's tenosynovitis is denied. FINDING OF FACT Throughout the appellate period, the Veteran’s right thumb disability has not resulted in 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; did not exhibit any unfavorable ankylosis; and has not resulted in amputation. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the right thumb disability have not been met or approximated for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3. 321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from September 1977 to September 1981; and the United States Air Force from October 1988 to May 1990, August 1990 to July 1991, October 2001 to September 2003, and October 2003 to February 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2017, a Decision Review Officer (DRO) increased the Veteran’s rating to 10 percent for DeQuervain’s tenosynovitis of the right thumb effective February 25, 2010. In June 2018, the Board remanded the claim for a more contemporaneous examination which was performed. There has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to an evaluation in excess of 10 percent for a right thumb disability, characterized as DeQuervain's tenosynovitis The Veteran’s right thumb disability has been evaluated under DC 5228, which contemplates limitation of motion of the thumb. DC 5228 provides a non-compensable rating (zero percent) for 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 rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for 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. 38 C.F.R. § 4.71a. The ratings are the same regardless of whether the hand affected is the major or minor. Id. A thumb disability can also be rated under diagnostic code 5224, which contemplates ankylosis of the thumb. Under this diagnostic code, when ankylosis is favorable or unfavorable, 10 and 20 percent disability ratings, respectively, are assigned. 38 C.F.R. § 4.71a. The Board finds that the evidence in this case does reflect ankylosis. However, the ankylosis is limited to the carpometacarpal joint, is noted to be favorable, and the gap between the thumb pad and fingers is shown to be less than two inches. See October 2019 VA examination. Under DC 5224, these findings warrant a maximum 10 percent rating. The Veteran is already in receipt of a 10 percent rating under DC 5228, and as DC 5228 and 5224 contemplate the same symptomatology, separate evaluations would constitute pyramiding, and are not permitted. 38 C.F.R. § 4.14. As in this case, where there is a diagnosis of degenerative arthritis, under DC 5003, the joint is to be rated based on limitation of motion. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each group of minor joints, such as in this claim, affected. Here, the Veteran is already rated under limitation of motion code DC 5228 and is in receipt of a 10 percent evaluation. Therefore, DC 5003 is inapplicable. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The Veteran’s disability is currently rated under DC 5228. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this diagnostic code was not changed. Furthermore, as the Veteran is already in receipt of a 10 percent evaluation under the aforementioned code for limitation of motion, the arthritis codes are inapplicable. Turning to the evidence of record, the Veteran was afforded a VA examination in July 2011. The Veteran reported pain, limited motion and weakness in the right thumb. On physical examination, there was no gap between the right thumb pad and the fingers – though objective evidence of pain was noted. There was no additional limitation after repetitive motion. No ankylosis was noted. The Veteran’s right thumb was noted to produce decreased dexterity, including not completely grasping smaller objects, handles and tools. Other significant findings included mild atrophy of the first dorsal interosseous muscle between the right thumb and index digit, as well as point tenderness. X-ray imaging showed mild degenerative arthritis. The Veteran was afforded another VA examination in December 2014. The diagnosis of DeQuervain’s tenosynovitis of the right thumb was confirmed. Flare ups were reported, productive of increased pain after using tools. Range of motion measurements showed pain on motion of the right thumb. The gap between the thumb pad and fingers was noted to be of less than one inch, with pain on motion beginning at less than one inch. The Veteran was noted to have functional impairment of the thumb, including less movement than normal, weakened movement, excess fatigability, incoordination and pain on movement. However, no additional limitation of motion was noted after repetitive use testing. X-ray findings included arthritis. Functional impact was noted as increased symptoms during the Veteran’s work as a mechanic. The Veteran was afforded another VA examination in May 2015. The Veteran reported flare ups which produce increased pain and decreased function on use of his thumb. The Veteran also reported having difficulty with work as a mechanic due to thumb pain on use. The gap between the pad of the right thumb and the fingers was measured to be 2 centimeters, and resulting range of motion limitation was noted to contribute to functional loss with gripping. Repetitive use testing did not produce additional loss of function or motion. No ankylosis or muscle atrophy were noted. The Veteran was afforded another VA examination in October 2019. The Veteran was diagnosed with trigger finger, ankylosis and degenerative arthritis. The Veteran reported feeling pain, stiffness and loss of motion, as well as painful motion and stiffness. He reported being unable to grasp things, and is in pain when holding writing utensils or eating utensils, holding tools, pushing and pulling. Flare ups were noted to produce moderate to severe pain daily. Functional loss was reported as inability to pinch or hold certain objects at times, as well as pain with writing. The gap between the thumb and fingers was noted to be two centimeters. Pain was noted on examination, as well as restricted motion. Additional restriction of motion was noted after repetitive use testing, due to pain. Additional factors contributing to the Veteran’s disability were noted to include less movement than normal due to ankylosis, adhesions, etc. and weakened movement due to muscle or peripheral nerves injury as well as deformity. Though no muscle atrophy was noted, the Veteran had decreased right hand strength. Right thumb MCP joint ankylosis was noted on extension. No bone rotation or angulation were noted. Ankylosis was noted to result in inability to pinch or hold objects well in the right hand, difficulty with writing and pain. The examiner specified that the Veteran’s ankylosis was favorable, with some loss of use of the thumb including holding and pinching. Arthritis was also noted as starting to show a trigger finger. An addendum VA opinion was produced in June 2020 pursuant to a request to clarify the Veteran’s right thumb diagnoses. Based on a review of the Veteran’s medical records, the examiner noted that the only mention of ankylosis is during the October 2019 VA examination. The examiner added that there is no support for the diagnosis of a right thumb ankylosing or a trigger finger in the Veteran’s hand specialist records. The examiner concluded that the diagnosis should have stayed the same as that outlined in the Veteran’s hand specialist records, namely arthritis, DeQuervain’s tenosynovitis and right thumb MCP joint radial collateral ligament injury. It was reasoned that these are more accurate diagnoses as they are from a hand specialist’s records. As aforementioned, of record are also hand specialist records dated in January and February 2015. Arthritis, DeQuervain’s tenosynovitis and right thumb MCP joint radial collateral ligament injury were noted to be the Veteran’s diagnoses. No ankylosis was noted. The Veteran was administered a cortisone injection. The Board acknowledges the Veteran’s statements included with his substantive appeal of February 2015, as well as other lay statements of record conveying symptoms of pain and that he deserves a higher rating. A higher evaluation of 20 percent under DC 5228 is not warranted because the Veteran does not have a gap of more than two inches (5.1 cm.) between the left thumbpad and the fingers, with the thumbs attempting to oppose the fingers. A 20 percent rating is also not warranted under DC 5224. Assuming arguendo that the Veteran does have a proper diagnosis of ankylosis – seen in the 2019 VA examination but disputed in the June 2020 VA addendum – the Veteran is still not entitled to a maximum 20 percent evaluation. The ankylosis is noted to be favorable in the 2019 VA examination, and unfavorable ankylosis is required for a higher rating. Because imaging studies establish that the Veteran has arthritis of the right thumb, the Board has considered the DCs specific to arthritis. 38 C.F.R. § 4.71a, DC 5003. By its express terms, DC 5003 does not allow for a separate rating based on arthritis of a joint when a compensable rating has already been assigned under a DC pertaining to limitation of range of motion. See 38 C.F.R. § 4.71a, DC 5003; see also 38 C.F.R. § 4.14 (prohibiting compensation of the same manifestations of a disability under various diagnoses). Further, the Veteran’s right thumb is not considered a major joint or group of minor joints for VA purposes. See 38 C.F.R. § 4.45(f). Accordingly, a higher or separate rating is not warranted under DC 5003. Id. The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki were considered and are not warranted. 8 Vet. App. 202 (1995); 25 Vet. App. 32 (2011).The Board has considered the Veteran’s functional loss/impairment when considering whether a higher rating is warranted for the right thumb disability. The Veteran’s main complaint is of pain and inability to grip things as well as use writing and other utensils for extended periods due to the right thumb disability. However, the Veteran’s right thumb painful motion and limitations therefrom are contemplated in the basis of the 10 percent rating currently assigned under 38 C.F.R. § 4.59. The evidence of record does not otherwise show that the Veteran experiences any greater degree of functional limitation to warrant a higher rating in this case – even on flare up and repetitive use. The Veteran’s right thumb disability is already rated 10 percent disabling based upon painful limitation of motion, as previously discussed. The evidence is against finding that any additional limitation of motion is consistent with the rating criteria for a 20 percent disability rating under Diagnostic Code 5228. The Board finds no evidence showing that the Veteran’s limitation of motion of the right thumb manifested in a gap exceeding 5.1 cm. between the thumb pad and the fingers during the appeal period such that a 20 percent disability rating would be warranted. Additional references to the Veteran’s pertinent health concerns are presented in other evidence of record. The additional evidence of record does not present findings concerning the Veteran’s right thumb disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. (Continued on the next page)   The Board acknowledges the Veteran’s assertions that his right thumb disability warrants an evaluation in excess of 10 percent. However, the Veteran lacks the adequate medical expertise in this case to render an opinion as to the nature or severity of his disability or as to whether his disability has worsened enough to warrant a higher disability evaluation. As such, the Veteran’s assertions are not competent or probative evidence to decide this appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered whether there is any other basis for granting a higher rating, but has found none. As the preponderance of the evidence is against assignment of any increased rating in this matter, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.