Citation Nr: 21027204 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-22 079 DATE: May 5, 2021 ORDER A higher initial 20 percent rating, but no greater, for a RIGHT thumb disability is granted. A higher initial 20 percent rating, but no greater, for a LEFT thumb disability is granted. FINDING OF FACT The Veteran's service-connected right and left thumb disabilities are productive of pain and weakness, tenderness, weakened grip, decreased range of motion, and other functional loss factors during flare-ups or after repetitive motion. But his bilateral thumb disabilities are not productive of favorable or unfavorable ankylosis of any fingers or the actual amputation of any fingers. CONCLUSIONS OF LAW 1. The criteria have been met for a 20 percent rating, but no greater, for the Veteran's service-connected RIGHT thumb disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 8852-5228 (2020). 2. The criteria have been met for a 20 percent rating, but no greater, for the Veteran's service-connected LEFT thumb disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 8852-5228 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from July 1998 to April 2008 in the U.S. Air Force. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). This case was previously before the Board. In a February 2019 Board decision, the Board denied the increased rating issues currently on appeal. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Order, the Court partially vacated and remanded the Board's earlier decision for the initial rating issues for both thumbs, pursuant to a January 2020 Joint Motion for Partial Remand (Joint Motion). The reasons for the Court's Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return to the Board, in July 2020, the Board remanded the entire appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). I. VA's Duty to Notify and Assist VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA notice letters sent to Veteran, dated in February 2013, March 2016, April 2019, August 2019, and July 2020. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). These letters advised the Veteran of the information and evidence necessary to substantiate his increased initial rating claim. In any event, subsequent to the ameliorative July 2020 Board remand, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist for the two issues on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). That is, neither the Veteran nor his attorney asserted that the Board had failed to comply with the instructions contained in the January 2020 Joint Motion. II. Increased Rating (IR) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected right and left thumb disabilities are currently each assigned 10 percent ratings by analogy under Diagnostic Code 8852-5228 (limitation of motion of the thumb based on a Gulf War chronic unexplained multi-symptom illness). 38 C.F.R. § 4.71a (2020). These 10 percent ratings have been in effect since January 14, 2013, the date the Veteran's informal claim for service connection was received by the AOJ. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, to properly identify and track disabilities that service connection was awarded for under 38 U.S.C. § 3.317, a Diagnostic Code series beginning with "88" was established. The "88" code is the first element of a hyphenated analogous Diagnostic Code for a Gulf War illness, and the second two digits "52" were assigned according to the body system of the analogous Diagnostic Code that it precedes (in this case diseases of the joints). The Veteran has appealed the March 2016 rating decision that granted service connection for right and left hand disabilities. He has expressed disagreement with the initial 10 percent ratings assigned for his right and left thumbs since January 14, 2013. Thus, this case could result in "staged ratings" based upon the facts found during the period in question. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). That is to say, the Board must consider whether there have been times since the effective date of his award when his right and left thumb disabilities have been more severe than at others for the time period from January 14, 2013 to the present. Id. However, the Board is cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability "in relation to its history" to "accurately reflect the elements of disability present," respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was "only entitled to disability compensation for the period after ... the date he filed his original claim for benefits," VA regulations still require the disability to be "evaluated in light of its whole recorded history"). Therefore, the Board has also considered and reviewed the Veteran's entire history for his right and left thumb disabilities, when assigning disability evaluations in the present case. 38 C.F.R. § 4.1. The Veteran believes that his service-connected right and left thumb disabilities are worse than the current, separate 10 percent ratings assigned for both thumbs. He states that ratings above 10 percent for each thumb are warranted based on the impact of functional impairment on daily activities and at work. He has described his bilateral thumb condition affecting his ability to grip anything, shaking hands, twisting the cap of a bottle, or holding pressure on a steering wheel. He maintains the Board should "weigh" the impact of this functional loss when assigning ratings for the Veteran's hands. He contends his functional impairment in his hands is "significant" or to a "great degree." He adds that his functional loss is much more severe than represented by the "mild" 10 percent ratings currently assigned for each thumb. He also states that his ratings should be commensurate with the level of disability present for favorable or unfavorable ankylosis of both thumbs, even though ankylosis was not objectively diagnosed in the record. See March 2017 NOD (VA Form 21-0958); August 2017 VA Form 9; and November 2017 attorney letter. At the outset, VA examiners have noted that the Veteran is right-hand dominant. Therefore, his service-connected right thumb is clearly on the major, i.e., dominant side, while his service-connected left thumb is clearly on the minor, i.e., non-dominant side. See 38 C.F.R. § 4.69. Under Diagnostic Code 5228 for limitation of motion of the thumb, a 10 percent rating is assigned for a gap of one to two inches (2.5 to 5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A higher, maximum schedular 20 percent disability rating is assigned 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. In summary, this diagnostic code provides a maximum 20 percent evaluation for disability of the thumb (1st) finger based on limitation of thumb motion. 38 C.F.R. § 4.71a. Under Diagnostic Code 5224 for ankylosis of the thumb, a higher, maximum 20 percent rating is assigned for "unfavorable" ankylosis of the major or minor thumb. A Note to Diagnostic Code 5224 also directs the rater to consider 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. Id. Under Diagnostic Code 5152 for amputation of the thumb, a higher 20 percent rating is assigned for amputation of either the major or minor thumb at the distal joint or through the distal phalanx. A higher 30 percent rating is assigned for amputation of the major thumb at the metacarpophalangeal joint or through the proximal phalanx. A higher 30 percent rating is assigned for amputation of the minor thumb with metacarpal resection. A maximum 40 percent rating is assigned for amputation of the major thumb with metacarpal resection. Id. Under Diagnostic Code 5219 for "unfavorable" ankylosis of multiple digits of the hand, a higher 30 percent rating is assigned for the minor thumb when there is "unfavorable" ankylosis of two digits of one hand (the minor thumb and any other finger). A maximum 40 percent rating is assigned for the major thumb when there is "unfavorable" ankylosis of two digits of one hand (the major thumb and any other finger). A Note to Diagnostic Code 5219 also directs the rater to consider whether evaluation as amputation is warranted. Id. Under Diagnostic Code 5223 for "favorable" ankylosis of multiple digits of the hand, a higher 20 percent rating is assigned for the minor thumb when there is "favorable" ankylosis of two digits of one hand (the minor thumb and any other finger). A maximum 30 percent rating is assigned for the major thumb when there is "favorable" ankylosis of two digits of one hand (the major thumb and any other finger). Id. Under Note (2) for the rating criteria for ankylosis or limitation of motion of the digits of the hand, when two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the Rating Schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 38 C.F.R. § 4.71a, Note (2). Under Note (4) for the rating criteria for ankylosis or limitation of motion of the digits of the hand, for evaluation of ankylosis of the thumb, the following rules apply: (i) If both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation at metacarpophalangeal joint or through proximal phalanx; (ii) If both the carpometacarpal and interphalangeal joints are ankylosed, evaluate as "unfavorable" ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the carpometacarpal or interphalangeal joint is ankylosed, and 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, evaluate as "unfavorable" ankylosis; and (iv) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as "favorable" ankylosis. 38 C.F.R. § 4.71a, Note (4). Under Note (5) for the rating criteria for ankylosis or limitation of motion of the digits of the hand, if there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation. 38 C.F.R. § 4.71a, Note (5). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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 v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself 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."). The Court has held that "limitation of motion" and "painful motion" are distinct concepts, although limitation of motion is a factor that may be considered to determine whether painful motion is present. Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Further, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In addition, the assignment of a disability rating should take into account limitation of functional ability or additional range of motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). With regard to lay evidence, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Court has held that painful motion, in particular, may be "objectively confirmed" by a layperson who witnessed a veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain. Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015). However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Pursuant to the January 2020 Joint Motion, the parties agreed that in the previous February 2019 Board decision, the Board erred by failing to ensure that the Secretary satisfied his duty to assist the Veteran in obtaining an adequate VA medical examination for his right and left thumb disabilities. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the January 2020 Joint Motion concluded that the earlier January 2016 and June 2017 VA hand examinations were not adequate to satisfy VA's duty to assist the Veteran. Both VA hand examinations failed to comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017) (holding that if the VA examination does not take place during a flare-up or repetitive testing cannot be performed, the VA examiner should have the veteran describe and / or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees). If the VA examiner states that an opinion could not be provided without resort to speculation, the VA examiner must indicate if the speculative opinion was due to lack of knowledge within the medical community, etc. Id. at 35. Also, both VA hand examinations failed to comply with the Court's holding in Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (holding that in cases involving a speculative medical opinion, it must be clear from the record that a VA examiner's inability to opine on a medical matter was arrived at after all due diligence in seeking relevant information that may have bearing on the requested opinion). Therefore, on remand, the Board was instructed to provide the Veteran with an adequate VA hand examination to address the severity of his service-connected thumb disabilities. Upon review, the Board grants increased initial ratings of 20 percent each, but no greater, for the Veteran's service-connected right and left thumb disabilities under Diagnostic Code 5228 (limitation of motion of the thumb). 38 C.F.R. § 4.7. This is the maximum rating available for right and left thumb limitation of motion under the applicable Diagnostic Code 5228. In this regard, there is probative medical and lay evidence of record demonstrating that the Veteran's right and left thumb limitation of motion has 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, when considering additional thumb motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at a VA examination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 35; DeLuca, 8 Vet. App. at 206. In making this determination, the Board has consistently considered the impact of functional loss upon the Veteran's range of motion of both his thumbs. It is acknowledged the Veteran's thumb motion for both hands upon initial examination in the record failed to demonstrate the degree of limitation required for a higher 20 percent rating. However, there is clinical and lay evidence in the record demonstrating that during flare-ups or after repetitive use, the Veteran's right and left thumb range of motion becomes significantly more limited. Sharp, 29 Vet. App. at 35. In other words, his right and left thumb can worsen to a severity of 20 percent under Diagnostic Code 5228 during work or during activities of daily living. On a side note, the Veteran has already been awarded separate disability ratings for other digits of both hands: separate 10 percent ratings for LEFT and RIGHT index finger disabilities under Diagnostic Code 8852-5229; separate 10 percent ratings for LEFT and RIGHT long finger disabilities under Diagnostic Code 8852-5229; separate 0 percent ratings for LEFT and RIGHT ring finger disabilities under Diagnostic Code 8852-5230; and separate 0 percent ratings for LEFT and RIGHT little finger disabilities under Diagnostic Code 8852-5230. See 38 C.F.R. § 4.71a. The Board previously adjudicated initial rating claims for these other digits of the hand in a recent February 2019 Board decision. Unlike the thumb disabilities, the increased rating issues for these particular fingers were NOT appealed by the Veteran to the Court. Therefore, the issue of increased ratings for all other fingers on both hands (except for the thumbs) is not currently before the Board. Also, unless specified by the particular rating criteria, the Board may not consider the already compensated hand symptomatology associated with his other service-connected fingers when rating his symptomatology associated with the current thumb disabilities on appeal. See 38 C.F.R. § 4.14 (evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided). Turning to the main issue on appeal, the following evidence of record suggests or supports higher 20 percent ratings for the Veteran's right and left thumb disabilities under Diagnostic Code 5228 (limitation of motion of the thumb): The Veteran as a lay person has competently and credibly described his bilateral thumb condition affecting his ability to grip anything, shaking hands, twisting the cap of a bottle, or holding pressure on a steering wheel. This "significantly" impacts his functional impairment when performing daily activities and at work. See March 2017 NOD (VA Form 21-0958); August 2017 VA Form 9; and November 2017 attorney letter. In this regard, the Court has held that credible lay evidence of functional loss due to pain, including during flare-up periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation. Petitti, 27 Vet. App. at 429-30. Private Kootenai Clinic notes dated in July 2014 and December 2014 documented bilateral hand arthralgias that are "moderate-severe," occurring "constantly", and worsening. Associated symptoms include decreased mobility, joint tenderness, nocturnal awakening, nocturnal pain, spasms and swelling of the hands. The assessment was osteoarthritis of the hands. Swelling was objectively observed. Private Kootenai Clinic notes dated in May 2015 and June 2015 and July 2015 remarked there was "worsening" pain in the Veteran's hands. He is unable to do simple tasks utilizing his hands when the pain is strong. Sometimes it is even difficult for him to drive. The hand symptoms were reported as being "moderate." The hand symptoms occur "daily." Tenderness and swelling of the hands were seen. He exhibited decreased range of motion limiting his daily and work-related activities. A December 2015 non-VA care homemaker consult noted the Veteran needed assistance with his hands for bathing and personal care, shaving, and light housekeeping. A January 2016 VA spine examination indicated that driving a vehicle had become "very difficult" due to the severity of the Veteran's bilateral hand pain. The condition was assessed as "quite disabling." He was unable to attain employment due to the combination of his bilateral hands, low back, bilateral ankle, and bilateral knee disabilities. At a January 2016 VA hand and finger examination, the Veteran credibly reported flare-ups of the hands every morning and evening when driving, as well as immediate flare-ups upon opening a soda or jar, that resulted in increased pain and joint stiffness in the fingers, and decreased range of motion. The VA examiner also noted the Veteran's VA treatment records show he has recurrent psoriatic rash and chronic, constant joint discomfort, as well as joint swelling for both hands. On physical examination, the January 2016 VA examiner recorded that pain, weakness, and lack of endurance significantly limited functional ability of his hands when flare-ups occurred, but noted that he was unable to describe such limitation in terms of range of motion because "pain increased significantly with initial [range of motion (ROM)] testing[, and] flare-up prevent[ed] further ROM testing." Therefore, the Veteran could not perform repetition of motion x 3. In addition, the VA examiner concluded these findings are medically consistent with the Veteran's lay statements describing functional loss with repetitive use of the fingers over time. This objective observation by the January 2016 VA examiner strongly suggests right and left thumb limitation of motion having 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, when considering additional range of thumb motion lost during flare-ups or after repetitive thumb motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206. This would support higher 20 percent ratings for the right and left thumb under Diagnostic Code 8852-5228 based on the impact of functional loss on range of motion of both thumbs. See 38 C.F.R. § 4.71a. At a June 2016 River City Physical Therapy visit, the physical therapist assessed the Veteran was "very weak" in both hands. His grip and pinch strength were in the first percentile, well below average. He was advised not to perform any repetitive grasping or handling as his weakness was "significant." He also had "below average" fine manipulation and did not qualify to perform repetitive fingering. The physical therapist concluded the Veteran's hand function was "limited." He could not return to work in a sedentary job because such jobs require more handling and grasping then the Veteran could perform. His hand pain was "moderate," with stiffness, swelling, and weakness. VA rheumatology outpatient notes dated in May 2017 and August 2017 reflected the Veteran's report his hands keep him up at night. He feels that his hand strength has become a lot worse. He has difficulty opening up packages or bottles. A June 2017 VA occupational therapy consult indicated that "with activity" the Veteran's pain in his fingers was 8-9 out of 10, which is quite high. The pain is exacerbated by gripping anything. The pain has become worse in the past year. During his activities of daily living, he drops various items. Grooming and shaving are difficult. Brushing his teeth is painful. During bathing, it is difficult to reach back. He no longer can do yardwork. It is painful in his fingers to carry laundry, do dishes, or vacuum. It is also painful to grip the steering wheel while driving. He cannot work at an office as it is painful to write or type. For recreational activities, due to his hands, he is unable to engage in biking, motorcycling, swimming, golf, or bowling, as he once did in the past. On examination, his hand strength was limited. At a June 2017 VA ankle examination, the Veteran credibly reported that at times his bilateral hand pain could be "debilitating" with big swelling. This causes difficulty sleeping. At a June 2017 VA hand and finger examination, the same VA examiner as earlier reiterated that pain and weakness "significantly limited" functional ability with flare-ups of the hands. The Veteran reported "daily debilitating" pain in both hands. He reported he has significant discomfort with opening jars, or twist tops, bags of chips, or zip-lock bags. He feels his weakness and pain in both hands are getting worse. He had steroid injections to the metacarpals of both hands over the last year - this reduced his pain initially for a few weeks, but the pain came back fairly quickly. The Veteran is treated with methotrexate, oxycodone, methadone and etodolac daily for pain control for his hands. With regard to flare-ups for his hands, flare-ups occur daily, in the morning and in the evening despite activity. Flare-ups also occur when he tries to twist caps or lids off of jars. He reports loss of strength in both hands, as well as daily pain. Importantly, he competently and credibly reported to the VA examiner that his hand pain, stiffness, weakness, and swelling is much worse with flare-ups and with repeated use over a period of time, causing additional functional loss. On examination, extension and flexion of the fingers caused increased pain and tenderness. Swelling was observed. In addition, the VA examiner concluded these findings are medically consistent with the Veteran's lay statements describing functional loss with repetitive use of the fingers over time, although there were no flare-ups on the day of the VA examination. As to functional loss, the VA examiner concluded most tasks of gripping and twisting are difficult and doing any task like this repetitively would not likely be reasonable. His hand weakness gets worse if he does activities repetitively like typing. The accumulation of his finger joint pains and other joint pains related to his inflammatory arthropathies makes all types of employment difficult. Liberally interpreted, these objective findings at the June 2017 VA hand and finger examination also suggest right and left thumb limitation of motion having 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, when considering additional range of thumb motion lost during flare-ups or after repetitive thumb motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206. This would support higher 20 percent ratings for the right and left thumb under Diagnostic Code 8852-5228 based on the impact of functional loss on range of motion of both thumbs. See 38 C.F.R. § 4.71a. A July 2019 VA rheumatology outpatient note discussed that the Veteran had been packing and moving lately. This precipitated a flareup in his hands, lasting 1.5 weeks. A December 2020 VA hand and finger examination reported that the Veteran's psoriatic arthritis in his hands had progressed since its onset. Upon range of motion testing, the VA examiner documented range of motion of both thumbs with a gap of three centimeters between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. This would be indicative of only a 10 percent rating for limitation of thumb motion under Diagnostic Code 5228. See 38 C.F.R. § 4.71a. However, the VA examiner stated his opinion that functional ability of the thumbs was limited by pain with repeated use over a period of time and during flare-ups, although not observed on the day of the VA examination itself. Flare-ups happen when the Veteran needs to grip and twist with his hands. This happens when he has to open doors with doorknobs. Carrying grocery bags, weather changes, and lifting heavy objects also all increase pain and decrease movement in his thumbs. This conclusion by the December 2020 VA examiner strongly suggests right and left thumb limitation of motion having 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, when considering additional range of thumb motion lost during flare-ups or after repetitive thumb motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206. This would support higher 20 percent ratings for the right and left thumb under Diagnostic Code 8852-5228 based on the impact of functional loss on range of motion of both thumbs. See 38 C.F.R. § 4.71a. With regard to medication use, the Veteran is treated with methotrexate, oxycodone, methadone, and Etodolac daily for pain control for his hands and other joints. A January 2020 VA treatment record confirmed that his hand symptoms deteriorated when he stopped taking his medications for several weeks, causing inflammatory pain. In addition, a May 2020 VA rheumatology telephone encounter note reflected that because he had moved his domicile that month, he paid less attention to taking his arthritis medications (methotrexate and Enbrel). Thus, he advised his hands were now "killing him." In awarding the higher 20 percent ratings for both thumbs, the rating criteria pertaining to limitation of motion of the thumbs under 38 C.F.R. § 4.71a, Diagnostic Code 5228, do not contemplate the relief provided by the Veteran's various pain medications and injections. Therefore, the higher 20 percent ratings for limitation of thumb motion cannot be denied here on the basis of the relief provided by the Veteran's various pain medications and modalities, as those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Simply stated, it is obvious that without the ameliorative effects of his various pain medications, the Veteran would experience more severe limitation of right and left thumb motion due to pain, supportive of higher 20 percent ratings. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. In short, the Board has taken the positive effects of his pain medications into account when assigning the higher 20 percent ratings for both thumbs. In light of the above evidence, higher 20 percent ratings for the right and left thumb under the limitation of motion code pertaining to the affected thumb joints is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. However, the Veteran is not entitled to increased initial ratings greater than 20 percent for his service-connected right and left thumb disabilities under Diagnostic Code 5228 (limitation of motion of the thumb). 38 C.F.R. § 4.7. On this issue, he is already at the maximum 20 percent rating for limitation of motion of the thumb under Diagnostic Code 5228. The Court has held that when a claimant is receiving the maximum evaluation for a joint disability not manifesting in ankylosis under a particular diagnostic code (e.g., a maximum 20 percent rating for DC 5228 for the thumb), the Board's failure to consider functional loss under §§ 4.40 and 4.45 in evaluating the disability under that particular diagnostic code was harmless error. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). See also Spencer v. West, 13 Vet. App. 376, 382 (2000) (also concluding that the Board's failure to consider 38 C.F.R. §§ 4.40 and 4.45 in evaluating a wrist disability was harmless where the appellant was receiving the maximal evaluation under DC 5215 (pertaining only to limitation of motion of the wrist), and there was no evidence of ankylosis). As such, since the Veteran is already receiving the maximum 20 percent rating available for limitation of motion of the thumb under Diagnostic Code 5228, the Veteran may only receive a higher rating for his right and left thumbs under a different diagnostic code or on an extraschedular basis. However, in the present case, there is no clinical evidence of record and no probative lay evidence of record demonstrating that his right or left thumb meet any of the criteria required for ratings higher than 20 percent e.g., amputation of the major thumb at the metacarpophalangeal joint or through the proximal phalanx (a 30 percent rating Diagnostic Code 5152 for amputation of the thumb); or amputation of the minor thumb with metacarpal resection (a 30 percent rating Diagnostic Code 5152 for amputation of the thumb); or amputation of the major thumb with metacarpal resection (a 40 percent rating Diagnostic Code 5152 for amputation of the thumb); or "unfavorable" ankylosis of two digits of one hand (the minor thumb and any other finger - a 30 percent rating Diagnostic Code 5219); or "unfavorable" ankylosis of two digits of one hand (the major thumb and any other finger - a 40 percent rating Diagnostic Code 5219); or "favorable" ankylosis of two digits of one hand (the major thumb and any other finger a 30 percent rating under Diagnostic Code 5223). See 38 C.F.R. § 4.71a. That is, the most probative evidence of record fails to reveal either "unfavorable" ankylosis or "favorable" ankylosis or amputation of either the right or left thumbs. Ankylosis is defined as the "immobility and consolidation" of a joint due to disease, injury, surgical procedure - in essence, complete limitation of motion. Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). See also Steadman's Medical Dictionary 95 (28th ed. 2006) ("Stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint."); Churchill's Illustrated Medical Dictionary 91 (1989) ("A stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention."). The Court recently held that the Board could consider assigning a rating based on ankylosis where there is functional immobility during flare-ups, even though there is no clinical assessment of ankylosis in the record. That is, evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, colloquially known as the DeLuca factors, can satisfy the criteria for a rating based on ankylosis. Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). Here, range of motion and other clinical findings for the thumbs (and other fingers as well), although limited at times, are not equivalent to favorable or unfavorable ankylosis, even when considering pain and other factors of functional loss and repetition of range of motion x 3 and flare-ups. See again 38 C.F.R. §§ 4.40, 4.45, 4.59; Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021); Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206. In particular, no clinical evidence of record assessed favorable or unfavorable ankylosis or amputation of the thumb or any other finger, such that increased ratings above 20 percent are not established. VA X-ray reports for both hands made no mention of ankylosis or any similar condition. In fact, there is affirmative evidence of record against ankylosis in either hand. Further, the evidence does not show that pain or other factors cause functional loss more closely approximating favorable or unfavorable ankylosis. In fact, the effect of pain and other functional loss factors for the Veteran's right and left thumb disabilities is already contemplated in the 20 percent ratings currently assigned for each thumb. Specifically, the following medical and lay evidence of record is not supportive of ratings higher than 20 percent for the Veteran's thumb disabilities, based on no showing of ankylosis: Private Family Practice treatment records dated in May 2012 and April 2013 noted multiple sore joints, including both hands. Both hands were observed to have "mild" osteoarthritis. On one occasion swelling was observed in both hands. The pain was constant, aching, and dull. Associated symptoms include decreased mobility, joint tenderness and swelling of the hands. There was stiffness. This is aggravated by lifting and pushing objects. It is relieved by heat and rest. Meloxicam also helps his hand pain. Social Security Administration (SSA) disability records dated in 2014 and 2015 commented the Veteran had only "mild" psoriatic arthritis of both hands. Handling and fingering activities were limited. However, he could drive, prepare simple meals, mow the yard, wash dishes, do laundry, and lift 35 pounds. He was independent in activities of daily living. A February 2015 private Kootenai Clinic note documented "normal" hands upon examination on that day. A March 2015 VA nursing note mentioned that his hand pain was worse, but still only 3/10 in severity on that day. A June 2015 VA BHS trauma recovery treatment note assessed chronic hand pain, but only at the severity level of 3 or 4 out of 10. A September 2015 VA Persian Gulf registry consult documented chronic joint pain in both hands. Tenderness in both hands was objectively observed. A January 2016 VA rheumatology consult indicated the Veteran had bilateral hand pain for which he takes prescription medications. At a January 2016 VA hand and finger examination, the VA examiner concluded there was no objective evidence of ankylosis in the right or left hands. The Board does acknowledge that the January 2016 VA examiner recorded that pain, weakness, and lack of endurance significantly limited functional ability of his hands when flare-ups occurred, but noted that he was unable to describe such limitation in terms of range of motion because "pain increased significantly with initial [range of motion (ROM)] testing[, and] flare-up prevent[ed] further ROM testing." However, although the Veteran's range of hand motion was clearly painful and limited during this flare-up, the Board finds this was not the functional equivalent of ankylosis or "immobility and consolidation" of the hand joint during the flare-up, pursuant to 38 C.F.R. § 4.40 and 4.45. See again Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). There was no indication the Veteran had no movement at all of his hands or thumbs at this VA examination. The VA examiner also specifically found there was no objective evidence of ankylosis at that time. A February 2016 VA rheumatology outpatient note assessed that an examination of both hands was "within normal limits" with no evidence on that day of limited hand motion, synovitis, soft tissue thickening, erythema, effusion, or heat. VA treatment records including VA rheumatology consults dated from 2016 to 2020 documented continuing complaints for "constant" bilateral hand pain, worse in the morning. There was improvement after prolonged periods of rest and water therapy. The diagnosis was psoriatic arthritis. His hands can swell at times. Also, making a fist or gripping can be difficult. Tenderness and only "mild" edema in both hands was observed. Specifically, there was tenderness in most of his MCP joints, several PIP joints and DIP joints of his fingers (including his thumbs) without synovial swelling or dactylitis. He underwent acupuncture treatment for the hands. Notably, no VA treatment record assessed ankylosis in either thumb. At a June 2017 VA hand and finger examination, the VA examiner concluded there was no objective evidence of ankylosis in the right or left hands. A July 2017 VA occupational therapy discharge note assessed the Veteran after several therapy sessions reported reduced hand pain with the use of modalities. On examination, he exhibited "good" range of motion in his hands, with slow movement due to pain. He exhibited difficulty making a full fist. The conclusion was that the Veteran had met most of the therapy goals for his hands and was discharged with an at home program. A December 2017 VA primary care note found that the Veteran's hands were "without joint deformities with good finger curl and wrist movement." There were also equal bilateral hand grasps. The diagnoses were polyarthritis for which the Veteran was currently taking methotrexate with folate replacement and chronic pain syndrome, managed by methadone. VA primary care notes dated in May 2018 and March 2019 and May 2019 and January 2020 and March 2020 documented full range of motion and equal strength of the upper extremities. Also, there were equal bilateral hand grasps. Such evidence is not commensurate with a finding of ankylosis of either thumb. A February 2019 VA rheumatology outpatient note examined the Veterans hands. There was tenderness in most of his MCP joints, several PIP joints and DIP joints without swelling or dactylitis. The diagnosis was inflammatory spondyloarthritis and a history of psoriasis. At a December 2020 VA hand and finger examination, the VA examination report noted that ankylosis is defined as the immobilization and consolidation of a joint due to disease, injury, or surgical procedure. The VA examiner then concluded there was no objective evidence of ankylosis in the right or left hands, including the thumbs. With regard to lay evidence, the Veteran contends that the ratings for his thumbs should be commensurate with the level of disability present for favorable or unfavorable ankylosis of both thumbs, even though ankylosis was not objectively diagnosed in the record. See November 2017 attorney letter. The Veteran and his attorney are indeed competent to describe observable signs, symptoms, and facts perceived through the five senses, such as whether the Veteran's thumbs become immobile during flare-ups or after repetitive motion. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability."). Regardless, in addition to competency, the Board, as fact finder, is responsible for assessing the credibility and probative value of all evidence, including lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). That is, once evidence is determined to be competent, the Board must determine whether such evidence is also credible and probative. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In the present case, the negative clinical findings for ankylosis in the VA hand and finger examinations of record, in VA treatment records, in private treatment records, and in SSA disability records are more probative than the general lay assertion of the existence of the functional equivalent of ankylosis in the Veteran's hands by the Veteran and his attorney. In fact, in his personal statements, the Veteran has never asserted than his right and left thumbs were immobile. None of the Veteran's lay statements describes ankylosis of any digits in his hands or anything more nearly approximating ankylosis. The Board has properly considered all of Veteran's medical records discussing the condition of his thumbs and other fingers, weighed that evidence against his lay statements, and concluded that the evidence predominantly shows that the Veteran did not exhibit symptoms supportive of favorable or unfavorable ankylosis in any digit of his hands. See English, 30 Vet. App. at 352-53 (the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases). The Veteran's medical records were generated with a view towards ascertaining his then-state of physical fitness - they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, despite his lay assertions, higher ratings above 20 percent for each thumb are not warranted based on any allegation of the existence of the functional equivalent of ankylosis in the Veteran's thumbs or other fingers. Consequently, the Board concludes that separate 20 percent ratings under Diagnostic Code 5228 for limitation of motion of the thumb most appropriately reflects the Veteran's service-connected right and left thumb disabilities, in the absence of any probative evidence of ankylosis in his hand joints. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Accordingly, the Board grants 20 percent ratings, but no higher, for the Veteran's service-connected right and left thumb disabilities. 38 C.F.R. § 4.3. Finally, for the increased rating issues for right and left thumb disabilities, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.