Citation Nr: 21026531 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-07 907 DATE: May 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left thumb disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left thumb disability is not manifested by adverse symptomatology that equates to 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, even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion (as well as during flare-ups) at any time during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left thumb disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5003, 5010, 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1990 to May 1991 with service in South West Asia from December 1990 to April 1991 and the award of the Combat Action Ribbon (CAR). The Veteran also had almost 15 years of service with a Reserve Component. In July 2014, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that denied a compensable rating for the left thumb disability. The Veteran appealed the July 2014 Board decision to the United States Court of Appeals for Veterans Claims. In a May 2015 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the July 2014 Board decision. In July 2015 and May 2016, the Board remanded the appeal. In an April 2020 rating decision, the Veteran's left thumb disability was granted a 10 percent rating effective August 29, 2008. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). In September 2020, the Board again remanded the thumb case. Post-JMR and Remand Compliance In this regard, the Board finds that the post-Remand development both addressed the concerns raised in the JMR and complied with the Remands because the VA examination dated in February 2021 provides VA with medical evidence adequate to rate the Veteran's left thumb disability under all applicable rating criteria to include considering functional loss, pain, and painful motion with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner provided sufficient findings to addressed each of these concerns in accordance with the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) as well as 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011). See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remands because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's left thumb disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5228. In this regard, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that none of the amendments changes how the Veteran's left thumb disability is rated under Diagnostic Code 5228. Moreover, while the Veteran's left thumb disability was also previously rated under Diagnostic Code 5010, and degenerative arthritis is now rated under Diagnostic Code 5003 under the new rating criteria, this change in numbering is not substantive and has no impact on the stand for rating the disability. Therefore, the Board finds that a Remand to provide the Veteran with notice of these new rating criteria and have his claim adjudicating applying them is not required. See Sabonis, supra. Next, given the fact that the record on appeal is uniform in showing that the Veteran's dominant hand is his right hand (see, e.g., VA examination dated in February 2021), the Board notes that Diagnostic Code 5228 provides a 20 percent rating for limitation of motion of the thumb on the minor hand if there is 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. In this regard, the Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. With the above criteria in mind, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology like pain (see Davidson, supra), he does not meet the criteria for at least the next higher, 20 percent, rating at any time during the appeal because the most competent and credible evidence of record in the form of the VA examinations show that the Veteran does not have 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, Diagnostic Code 5228; Fenderson, supra; Hart, supra. The Board has reached this conclusion because the ranges of motion of the Veteran's left thumb considering the above criteria were as follows at his VA examinations: At the January 2009 VA examination it was opined that all fingers, including the left thumb, could touch the palm with no gap; At the June 2010 VA examination it was opined that all fingers, including the left thumb, could touch the mid-palmar crease; At the November 2016 VA examination it was opined there was no gap between all fingers, including the left thumb, and the proximal transverse crease of the hand; and At the February 2021 VA examination it was opined that even during the flare-up at the examination there was no gap between all fingers, including the left thumb, and the proximal transverse crease of the hand. The Board also notes that the treatment records do not ever document a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers with the left thumb attempting to oppose the fingers as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. The Board will next consider if the Veteran it entitled to a rating in excess of 10 percent for the left thumb disability by analogy to another Diagnostic Code such as ankylosis under 38 C.F.R. § 4.71a, Diagnostic Code 5224 or amputation under 38 C.F.R. § 4.71a, Diagnostic Code 5152. See Butts, supra. However, the Board finds that neither Diagnostic Code 5224 nor Diagnostic Code 5152 are appropriate in the current appeal because Diagnostic Code 5228 already specifically compensates the Veteran for his adverse symptomatology (i.e., pain and limitation of motion), because the record neither shows ankylosis or an amputation, and because the record does not show adverse symptomatology that equates to ankylosis or an amputation. In fact, the November 2016 and February 2021 VA examiners opined there was no ankylosis and the disability was not so bad that no effective function remains other than that which would be equally well served by an amputation with prosthesis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.