Citation Nr: 21028598 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-24 197 DATE: May 11, 2021 ORDER A disability rating greater than 10 percent for degenerative arthritis of the right thumb is denied. FINDING OF FACT The Veteran has limited motion of the right thumb with pain on motion; however, physical examination shows no gap between the thumb and the fingers on testing. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for degenerative arthritis of the right thumb are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5228-5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. The Board remanded the claim in April 2020 to obtain an updated medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time, a practice known as "staged ratings," whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 10 percent rating for degenerative arthritis of the right thumb under DC 5228-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Degenerative arthritis is rated under DC 5003. It provides that degenerative arthritis, confirmed by x-ray findings, will first, be rated based on the limitation of motion under the DC for the specific joint, in this case the thumb. DC 5003 states that, when the rating under DC 5228 is non-compensable, a rating of 10 percent is to be applied for each group of minor joints affected by limitation of motion. Pursuant to DC 5228, a noncompensable disability rating is warranted for limitation of motion of the thumb with a gap of less than 1 inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, DC 5228. A 10 percent disability rating is warranted for 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. Id. A maximum schedular 20 percent disability 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. Id. The Veteran underwent a VA examination in December 2020 to determine the current severity of his right thumb arthritis. The examiner noted the Veteran to have no gap between the pad of the thumb and the fingers. Therefore, under DC 5228 the Veteran is entitled to a noncompensable rating. However, as stated previously, when the rating under DC 5228 is noncompensable, a rating of 10 percent is to be applied for each group of minor joints affected by limitation of motion. The December 2020 VA examination found the Veteran to have limited motion of the thumb. Specifically, the examiner noted limitation of motion of the metacarpophalangeal and interphalangeal joints, consistent with a 10 percent rating under DC 5003. A 20 percent rating under DC 5003 is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Although the December 2020 VA examination noted x-ray evidence of involvement of 2 joints, there were no noted incapacitating exacerbations. The Board acknowledges the Veteran's own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the current severity of his thumb disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion or other competent evidence that supports the Veteran's claim for an increased rating. Therefore, a 20 percent rating under DC 5003 is not warranted. (Continued on the next page) Collectively, this evidence shows that the criteria for a rating higher than 10 percent have not been met. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.