Citation Nr: 21023508 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-23 519 DATE: April 20, 2021 ORDER Entitlement to restoration of a 10 percent rating for residuals of a left thumb injury effective September 1, 2015, is granted. FINDINGS OF FACT 1. At the time of the June 2015 rating decision, the 10 percent rating for the Veteran’s residuals of a left thumb injury had been in effect since July 18, 2006, which was a period of more than five years. 2. The October 2012 and June 2014 VA examinations on which the reduction was based did not establish that there was material improvement that could be maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for restoration of a 10 percent rating for residuals of a left thumb injury have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 3.105, 3.344, 4.71a, Diagnostic Code 5224 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from January 1970 to January 1973 and from September 1973 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran withdrew his request for a Board hearing. Restoration - Left Thumb Rating The Veteran has contended that the disability rating assigned for the residuals of his left thumb injury (left thumb disability) should not have been reduced from 10 percent to 0 percent (noncompensable). In resolving this issue, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran's left thumb disability rating from 10 percent to noncompensable. In a July 1995 rating decision, the RO granted service connection for the Veteran’s left thumb disability and assigned a noncompensable rating, effective October 4, 1994. In a May 2007 rating decision, the RO increased the rating to 10 percent, effective July 18, 2006. In February 2015, the RO notified the Veteran of the proposed reduction in the rating of his left thumb disability due to finding evidence of painful motion of the left thumb consistent with a noncompensable evaluation. In a June 2015 rating decision, the RO reduced the rating to 0 percent, effective September 1, 2015. The RO thus satisfied the procedural requirements of 38 C.F.R. § 3.105(e) (to include notifying the Veteran of the proposed reduction), and such requirements need not be discussed further. The Board now turns to the question of whether the rating reduction for the Veteran’s left thumb disability was proper. At the time of the June 2015 rating decision, the Veteran’s assigned rating of 10 percent had been in effect for more than five years. The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than five years. 38 C.F.R. § 3.344(a) and (b). Specifically, 38 C.F.R. § 3.344(a) provides that the entire record of examinations and the claimant’s medical and industrial history must be reviewed. Examinations that are “less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.” Id. The regulation further provides that even where material improvement in a disability is shown, the RO must consider whether that improvement will be maintained under the ordinary conditions of life. Id. An August 2006 VA examination report, upon which the 10 percent rating was originally based, reflected that the Veteran injured his left thumb, resulting in a chipped bone and torn ligaments that required surgery. He reported constant pain in his left thumb and noted that his left thumb was always swollen and stiff. On examination, the Veteran had a moderate amount of tenderness with manipulation of the left thumb. He also had a weak grip of the left hand, graded 3/5 on the left. He was able to make a full fist. The Veteran was able to oppose his fingers to thumb. He had normal dexterity and coordination of the left hand. He had no anatomical abnormalities of the left hand or fingers. The Veteran also had no functional defects noted of the left hand or fingers. Additionally, the RO continued the 10 percent rating in a March 2013 rating decision, based upon the findings of an October 2012 VA examination. During that examination, the Veteran endorsed pain with use of his left thumb and reported that he avoided heavy use of his left hand and the occurrence of flare-ups. On examination, there was evidence of painful motion of the Veteran’s left thumb. There was a less than 1-inch gap between the thumb pad and fingers. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertip. There was no limitation of extension or evidence of painful motion for the index finger or long finger. There was no additional limitation of motion for any fingers. The Veteran had pain on palpation of the left thumb and ankylosis of the left thumb. In reducing the Veteran’s left thumb disability rating to noncompensable in June 2015, the RO relied primarily on the October 2012 and a June 2014 VA examination reports. The June 2014 VA examination demonstrated that the Veteran had no limitation of motion with pain in any finger. There was no gap between the left thumb pad and fingers, initially and following repetitive use. The Veteran had pain on palpation of the left thumb. There was no ankylosis of the left thumb. Based on the foregoing, the Board finds that the October 2012 and June 2014 VA examinations did not reflect that any improvement would be maintained under the ordinary conditions of life and work. In this regard, the Veteran continued to report pain with use of the thumb, the avoidance of heavy use, and weakened hand grip. The examinations also showed evidence of painful motion and weakened hand grip. Thus, as compared to the prior VA examination findings, the Veteran’s overall disability picture had not improved appreciably. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the reduction in rating from 10 percent to noncompensable for the Veteran’s left thumb disability, effective September 1, 2015, was improper, and the 10 percent rating is therefore restored. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.