Citation Nr: 21022840 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-03 764 DATE: April 19, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent for osteoarthritis of the right thumb, dominant, is denied. Entitlement to an increased disability rating in excess of 20 percent for traumatic arthritis lumbar spine, is denied. FINDINGS OF FACT 1. The Veteran’s service-connected right thumb disability has been manifested by pain but has not been manifested by 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 or ankylosis of the right thumb and occasional incapacitating exacerbations. 2. The Veteran’s lumbar spine disability did not more nearly approximate the forward flexion at 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right thumb degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5228. 2. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5237 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to November 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. In October 2017 and September 2018, the Board remanded these matters for additional development. The Board previously remanded an issue regarding a reduction in disability rating for the right thumb disability. More recently, an April 2020 rating decision restored a 10 percent rating for osteoarthritis of the right thumb, dominant, effective from October 12, 2012, the date of the prior reduction. That decision represents a full grant of the benefit sought as to that issue. Hence, it is no longer on appeal. Notably, the November 2018 rating decision granted service connection for right and left lower extremity radiculopathy. The Veteran did not file a notice of disagreement (NOD) disagreeing with any appealable determination made in the rating decision, including the schedular ratings or effective dates assigned by the RO. Hence, those disabilities are not currently within the scope of the Board. See 38C.F.R. §§20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also remanded these claims to associate additional records with the claims file in July 2020. INCREASED RATING The Veteran seeks an increased rating for his right thumb and lumbar spine disability. The period on appeal begins on April 24, 2012, the day Veteran’s claim of increased rating was received by VA. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 37–38 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Right Thumb (Dominant) Throughout the appeal period the Veteran receives a 10 percent rating for his right thumb disability under DC 5003-5228. The old rating criteria provides that under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved does not warrant a compensable rating under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be continued, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) or (2) in DC 5003, it is indicated these 10 and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5003. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremity are considered a group of minor joints. 38 C.F.R. § 4.45(f). Under DC 5228, 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, warrants a 10 percent rating. A maximum 20 percent rating 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. See 38 C.F.R. § 4.71a, DC 5228. In determining disability ratings, DC 5228 makes no differentiation between the major and minor hands. Under the revised rating criteria, DC 5003 pertains to degenerative arthritis, other than post traumatic. The substantive criteria of DC 5003 remain the same under the new and old criteria. At the time of the October 2012 VA examination, the record shows the Veteran had a ligament strain and osteoarthritis of his right thumb. He experienced flareups about once every three months. His pain level was normally about a five out of ten. However, during flareups his pain level became a seven out of ten. The flareups would last for about a week. During this exam, there was no objective evidence of limitation of motion or evidence of painful motion. Although, the VA examiner noted pain as functional loss of the right thumb. At the February 2014 VA examination, the Veteran reported flareups of his right thumb disability. There was evidence of painful motion. There was no gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. He was able to perform repetitive use testing without additional functional loss, but it was noted that the Veteran had pain, less movement than normal, and weakened movement in his right thumb. He also had reduced hand grip. The VA examiner noted that with flareups there was no additional limitation of motion, in terms of degrees. The October 2020 VA examination shows the Veteran has osteoarthritis of the right thumb. The Veteran is right-handed. He does not experience flareups. There is no gap between the pad of the thumb and fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. He has abnormal range of motion of the right thumb. The thumb max extension for the metacarpal phalangeal (MCP) was 5 degrees, proximal interphalangeal (PIP), and distal interphalangeal (DIP) joints to 0 degrees. The max flexion for MCP is 50 to 100 degrees, PIP was 90 degrees. The Veteran experiences pain but does not have weakened movement. Based on the probative evidence of record, the Board finds that a rating in excess of 10 percent disability rating for the Veteran’s right thumb disability is not warranted. The Veteran’s thumb becomes painful on use, and as a result, the minimum compensable rating of 10 percent is warranted pursuant to DC 5003 and 38 C.F.R. § 4.59. However, higher ratings are not warranted under DC 5228, as the record clearly indicates that there are no gaps between the thumb pad and the fingers, with the thumb attempting to oppose the fingers at any time during the appeal period. There is no evidence of record indicating incapacitating episodes due to degenerative arthritis of his thumb warranting a higher rating under DC 5003. Therefore, a rating in excess of 10 percent for his right thumb disability is not warranted. Lumbar Spine The Veteran seeks a rating in excess of 20 percent for his lumbar spine disability under DC 5010-5237. Under the old criteria, diagnostic code 5010 provides that arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated under DC 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242): a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or abnormal spinal contour; a 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V. Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The Board notes the Veteran also has a diagnosis of lumbar spine intervertebral disc syndrome (IVDS). Under the Formula for Rating IVDS based on Incapacitating Episodes (Diagnostic Code 5243): a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating, the maximum available, is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. For VA compensation purposes under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Diagnostic Code 5243 Note (1). IVDS is to be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the new criteria, post traumatic arthritis under DC 5010 notes that rating pursuant to this diagnostic code must be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. The General Rating Formula for Diseases or Injuries of the Spine remain the same under the new criteria. However, the rating criteria for IVDS has been revised and directs that a rating for IVDS should be assigned under the diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Still, the substantive criteria for the percentage ratings for IVDS remained the same under the old and new criteria. The Board finds a rating in excess of 20 percent for a lumbar spine disability is not warranted. At the October 2012 VA examination the Veteran reported having back flareups. His forward flexion was 40 degrees with pain at 5 degrees, his extension was limited to 20 degrees, with pain at 5 degrees. He has constant daily pain with flare ups about once a month. During flares he experiences radiation of pain and numbness from his thigh and leg. After repetitive use testing, his forward flexion was 40 degrees and extension was 25 degrees. His back disability was productive of less movement than normal, weakened movement, excess fatigability, pain, and incoordination. He also had guarding of the spine. At the February 2014 VA examination, the Veteran reported having flareups. These flareups resulted in increased pain of the lumbar spine. His forward flexion was limited to 45 degrees with all motion noted as painful. His extension was limited to 20 degrees with all motion noted as painful. Repetitive use testing did not show any additional functional impairment in terms of range of motion although the Veteran experienced pain and fatigability. The VA examiner also opined that there was no additional range of motion loss in terms of degrees during flare ups. At the February 2018 VA examination, the Veteran did not report flareups. His forward flexion was limited to 70 degrees and his extension limited to 30 degrees. The Veteran had tenderness and pain on palpitation. Following repetitive use testing, he did not experience any additional range of motion loss. The October 2020 VA examination notes the Veteran has a diagnosis of lumbosacral spondyliosthesis, IVDS with secondary right sciatic radiculopathy. He has flareups 1-3 times a year. These flareups are moderately severe to severe. His last flareup occurred about 6 months ago. During flareups he reports difficulty with prolonged standing and sitting. Without a flare up, his range of motion was limited to 70 degrees, extension to 25 degrees. He did not have any additional functional loss on repetitive use. The VA examiner estimated that with flareups, the Veteran’s forward flexion was limited to 40 degrees and his extension limited to 20 degrees. Although, the Veteran has IVDS, it is noted that he did not have any incapacitating episodes requiring bed rest prescribed by a physician. The Board finds that the preponderance of the evidence is against finding a rating in excess of 20 percent for the Veteran’s lumbar spine disability is warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements, by the VA examinations, and medical evidence of record show that the Veteran’s lumbar spine disability does not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Notably, the most recent VA examination specifically highlights that in a flareup, the Veteran’s forward flexion would be limited to 40 degrees. Previous VA examinations indicate that the Veteran feels pain with movement, but this pain does not result in functional limitation of 30 degrees or less even with flare ups or repetitive use. The Board also notes that the Veteran is service connected for the radicular symptoms and functional impairment he experiences as a result of his radicular back disability. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While it is unclear whether the Veteran has disc herniation with compression and or irritation of the adjacent nerve root, this finding is not dispositive in his claim. As noted above the substantive criteria, requiring prescribed bed rest by a physician, for rating IVDS remained the same under the old and new criteria. As a result, even if the Veteran had disc herniation with compression and irritation of the adjacent nerve root, he still would not meet the criteria for obtaining a higher rating under the IVDS diagnostic criteria. This is because, as noted by the VA examinations, the medical evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.   Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. 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.