Citation Nr: 21026779 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-06 733 DATE: May 4, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a left thumb fracture is denied. Entitlement to a separate 10 percent rating for left thumb numbness, effective May 4, 2010 is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for residuals of a left thumb fracture, on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran's left thumb did not manifest in a gap of at least one inch between the thumb pad and opposing fingers or any ankylosis; however, the competent evidence of record does show the left thumb manifested in additional functional loss due to pain. 2. The Veteran's numbness of the left thumb is caused by residuals of the left thumb fracture. 3. The left thumb fracture manifested in mild numbness throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of a left thumb fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5216-5228. 2. The criteria for entitlement to a separate 10 percent rating for left thumb numbness, secondary to residuals of a left thumb fracture, beginning May 4, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310, 4.1, 4.7, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to February 1976. The appeal was remanded by the Board of Veterans' Appeals (Board) for further development in September 2015, June 2016, March 2017, and March 2020. The Veteran testified before the undersigned Veterans Law Judge in a January 2017 videoconference hearing. In a December 2017 Board decision, the Board granted an initial 10 percent rating for a left thumb disability, and denied entitlement to a rating in excess of 10 percent. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a Memorandum Decision, vacating and remanding back to the Board, the portion of the Board's decision which denied entitlement to a rating in excess of 10 percent for the left thumb disability. As a preliminary matter, in the March 2017 remand directives, the Board directed the examiner to consider and discuss: a) the November 2007 private treatment record noting a bilateral hand disability; b) the March 2012 VA treatment record noting a diagnosis of chronic left upper extremity radiculopathy related to cervical degenerative disc disease; and 3) the October 2014 VA treatment record noting the Veteran continued to have left hand numbness after cervical spine surgery. The Veteran was provided an examination in March 2017. An addendum opinion was provided in August 2017, yet the examiner failed to discuss the three treatment records as directed in the March 2017 Board directives. The Court found the examination not in compliance with the prior remand directives. In March 2020, the Board remanded the claim in accordance with the Court Memorandum Decision. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran asserts that his left thumb disability warrants a higher rating than currently assigned. He is currently in receipt of an initial 10 percent rating for limitation of motion (LOM) under 38 C.F.R. § 4.71a, Diagnostic Code 5228. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Pursuant to Diagnostic Code 5224, as to both the dominant and non-dominant hand, favorable ankylosis of the thumb is rated as 10 percent disabling, and unfavorable ankylosis of the thumb is rated as 20 percent disabling; a schedular rating higher than 20 percent is not available. A Note also advises that consideration should be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, Diagnostic Code 5224. Pursuant to Diagnostic Code 5228, as to both the dominant and non-dominant hand, for limitation of motion of the thumb, where there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 10 percent disability rating is assigned. Where that gap is more than two inches, a maximum 20 percent disability rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5228. In the May 2010 VA Form 21-4138, the Veteran reported his left thumb disability resulted in LOM and numbness. The Veteran was provided a VA examination in October 2010. The Veteran was left hand dominant. The examiner found decreased strength and dexterity in the left hand. The left thumb exhibited LOM, swelling, weakness, and stiffness. The Veteran reported a history of flare-ups, caused by cold and damp weather and extended use. The flare-ups occurred every 2 to 3 weeks and lasted for 1 to 2 days at a time. Flare-ups caused difficulty buttoning and gripping. On examination, there was no gap between the left thumb pad and fingers, although there was objective evidence of pain. There was objective evidence of pain after repetitive motion, but no additional LOM. There was no evidence of ankylosis, but there was evidence of decreased dexterity and fine motor skills. Mild osteoarthritic changes were observed in the left thumb. In the March 2011 VA Form 9, the Veteran stated that he believed his left thumb was deformed compared to his right thumb. The Veteran's dexterity affected recreational, social, and occupational tasks, such as picking up change from tables and tying knots. The Veteran was provided with a VA examination in December 2015. The Veteran was diagnosed with left thumb traumatic arthritis. The Veteran reported flare-ups aggravated by heavy lifting or gripping and wet and cold weather. His thumb slowed his ability to work accurately and quickly. The Veteran had given up painting, he had trouble lifting things from flat surfaces, and he would drop items from his left hand. On examination, there was a gap between the thumb and fingers of 0.5 cm. The examiner found the LOM of the thumb decreased the Veteran's ability to grasp. The thumb exhibited pain on examination. The repetitive use testing did not result in additional functional loss. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over time. There were some visual differences between the left thumb and the right thumb, which appeared to be minimal. Left hand grip strength was 4/5. No ankylosis were found in the left hand. The Veteran reported sensation in his left lateral thumb was different and less acute than the other fingers on his hand. The EMG studies did not support a cervical etiology for the thumb numbness. Examination of the left thumb supported decreased sensation of the proximal 1st metacarpal joint to the tip of the left lateral thumb laterally. The rest of the fingers had normal sensation. The examiner found that the numbness in the left thumb was at least as likely as not related to his fracture of the thumb based on the location and history. The Veteran was provided a VA examination in March 2017. The Veteran reported left thumb pain with movement. The Veteran's job duties, such as gripping caused flare-ups. There was no gap between the pad of the thumb and the fingers. There was pain in opposition with thumb, evidence of pain with use of the hand, and localized tenderness or pain on palpation. There was no additional functional loss or change in LOM with repetitive use testing. Pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and flare-ups. There was no evidence of ankylosis. In an August 2017 addendum opinion, the examiner determined the Veteran's left thumb numbness was related to cervical radicular symptoms. August 2019 private treatment records found that the Veteran's left thumb disability was not related to the cervical spine disease. The Veteran was provided with a new examination in July 2020. The Veteran reported difficulty writing, difficulty with fine motor tasks, thumb pain, the thumb rest in adducted position, and superficial numbness. Cold weather caused flare-ups. Tying knots, painting, writing, and gripping were all affected by the left thumb. On examination, there was no gap between the thumb pad and the fingers. Opposition of the thumb exhibited pain. Repetitive use testing did not result in any additional functional loss or LOM. Although the Veteran was not examined immediately after repetitive use over time or during flare-ups, the Veteran did describe the additional functional loss in terms of LOM, and there was still no gap between the thumb and the fingers. Left hand strength was 4/5. There was no evidence of ankylosis or muscle atrophy. The examiner found that the Veteran's left thumb numbness was due to cervical radicular symptoms. The Board notes that the Veteran's representative contended that the July 2020 VA examination as inadequate because testing was not performed immediately after repetitive use over time. See February 2021 Appellate Brief. Although the examiner did not conduct the examination after repetitive use over time or during flare-ups, the Board finds the examinations adequate because the examiner provided estimated LOM measurements as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded VA examinations in October 2010, December 2012, and March 2017, and July 2020. Medical records in the Veteran's file are negative for any evidence to support a compensable rating under Diagnostic Codes 5224 or 5228, as the Veteran shows no evidence of ankylosis of the thumb, and the Veteran's LOM of the thumb never manifested in a gap of at least one inch between the thumb pad and fingers, with the thumb attempting to oppose the fingers. The Board does note that, although the Veteran's left thumb is not commensurate with a compensable schedular rating under Diagnostic Codes 5224 or 5228, the Veteran's left thumb did demonstrate functional loss due to pain throughout the entirety of the appeal period. However, this additional functional loss is already currently considered in the Veteran's currently initial 10 percent rating. The Board has considered the contention that the Veteran's left thumb manifested in ankylosis. See February 2021 Appellant Brief. The record does not show that the Veteran or his representative possess the training or credentials necessary to provide a competent diagnosis in this case or to determine ankylosis. The issue is medically complex and beyond the scope of lay assertions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that there is no evidence of ankylosis of the left thumb. Overall, the combination of symptomatology resulting in additional functional loss is commensurate with the current initial 10 percent disability evaluation. DeLuca, 8 Vet. App. at 208; 38 C.F.R. §§ 4.40, 4.45, 4.59. The VA examiners noted functional loss due to pain, fatigue, and lack of endurance. Medical evidence and the Veteran's lay statements show the Veteran's disability interferes with regular activities. The assigned 10 percent evaluation is the maximum that may be assigned for additional function loss. A higher evaluation would require either unfavorable ankylosis of the thumb or a gap of more than 2 inches between the thumb pad and the fingers; and neither has been shown in the Veteran's medical evidence. Accordingly, the preponderance of the evidence is against an initial schedular rating in excess of 10 percent for the service-connected left thumb condition. Thus, the benefit of the doubt rule is not applicable, and the claim is denied on a schedular basis. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The December 2015 VA examiner found that the Veteran's left thumb numbness was related to the service-connected left thumb fracture. The August 2017 VA examiner found that the Veteran's left thumb numbness was related to a non-service-connected cervical condition. December 2019 private treatment records found the left thumb numbness was not related to the cervical condition. The August 2020 VA examiner found the left thumb numbness was related to the non-service-connected cervical condition. 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. Here, there are conflicting opinions. As such, the Board concludes the evidence regarding a nexus between left thumb numbness and the left thumb fracture is in relative equipoise. Therefore, a nexus has been established. The benefit of the doubt is afforded to the Veteran, and, accordingly, the Board finds that service connection for a separate rating for left thumb numbness is established. Based upon the Veteran's description of left thumb numbness, the Board finds Diagnostic Code 8515, for paralysis of the median nerve most appropriate. Such code provides for rating paralysis of the median nerve, with complete paralysis rated as 70 percent disabling (60 percent if in the minor (non-dominant) extremity); severe incomplete paralysis, rated as 50 percent disabling (40 percent if in the minor extremity); moderate incomplete paralysis, rated as 30 percent disabling (20 percent if in the minor extremity); and mild incomplete paralysis rated as 10 percent disabling in either extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The terms "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran reported left thumb numbness in the May 2010 VA Form 21-4138. In the June 2013 VA EMG report, the Veteran reported the skin was numb on his left thumb. The VA July 2020 examiner noted mild-moderate superficial numbness of the dorsal aspect of the left thumb. The numbness did impair sensation of small objects. The Board finds the Veteran's left thumb numbness is wholly sensory. The Veteran's left thumb has manifested in functional loss, pain, limitation of motion, fatigue, and lack of endurance; yet those symptoms are already considered in the Veteran's 10 percent rating. Thus, those symptoms cannot be considered when determining the level of severity of the Veteran's numbness as that would constitute impermissible "pyramiding." 38 C.F.R. § 4.14. Therefore, the Board finds the Veteran's mild left thumb numbness due to residuals of the left thumb fracture warrants a separate 10 percent rating since May 4, 2010. To this extent only, the claim is granted. 38 U.S.C. § 5107(b). The record does not suggest that the Veteran's service-connected left thumb disabilities render him unemployable. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the Veteran's claim for a higher initial rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). REASONS FOR REMAND In February 2021, the Veteran's representative suggested that the Veteran's left thumb condition warrants referral for extraschedular consideration. The Board notes the multiple VA examinations show symptoms not contemplated by the specific rating criteria, to include limited dexterity, decreased grip strength, and decreased fine motor skills. 4.71a, Diagnostic Codes 5216-5228. Consequently, the Board finds that consideration of an extraschedular rating for the Veteran's left thumb by the regional office (RO) is warranted. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). A remand is thus needed to refer the claim to Under Secretary for Benefits or the Director of the Compensation Service for consideration of the assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1). Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The matters are REMANDED for the following action: The RO should refer this case to VA Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration of left thumb fracture under 38 C.F.R. § 3.321(b)(1). All documentation obtained pursuant to this determination must be included in the claims file prior to readjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.