Citation Nr: 21032400 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-41 648 DATE: May 27, 2021 ORDER Entitlement to an initial disability evaluation in excess of 10 percent for osteoarthritis of the carpal metacarpal joint, left thumb, status-post fracture, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for psychiatric disorder, including posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDING OF FACT The Veteran's left thumb disability is manifested at most by a gap of 2 cm between the thumb pad and the fingers, but not by favorable ankylosis of the left thumb and any left finger, or by a need for amputation of the left thumb. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left thumb disability are not met. 38U.S.C. §§1155, 5107; 38C.F.R. §§4.1-4.3, 4.7, 4.40, 4.45,4.59, 4.71a, Diagnostic Code 5010-5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to June 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. Of note, during the appeal period, in July 2020, the Veteran's rating for his left thumb disability was increased from noncompensable to 10 percent. The issue has been recharacterized to reflect this. Further, under Rice v. Shinseki the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. In November 2018, the Board remanded the issues of service connection for PTSD and for a left thumb disorder for additional development. Regrettably, more development is still necessary before adjudication may take place regarding the Veteran's PTSD claim. Additionally, in that November 2018 decision, the Board also denied the Veteran's claim for service connection for tinnitus. The Veteran appealed that decision and, in September 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the decision. The issue is now before the Board for additional consideration. Further, as discussed in later detail below, based upon the Court's findings in its September 2020 decision, the Board has added the issue of entitlement to service connection for hearing loss. Entitlement to an initial disability evaluation in excess of 10 percent for osteoarthritis of the carpal metacarpal joint left thumb, status-post fracture, is denied. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The Veteran contends that he is entitled to a higher rating for his service-connected left thumb disability with degenerative joint disease, which is currently rated as noncompensable under DCs 5288-5010. See 38 C.F.R. § 4.27 (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). Under DC 5288, Limitation of Motion of Individual Digits, rating levels for the thumb remain the same, whether the thumb is part of the dominant or non-dominant hand. A noncompensable rating is assigned for limitation of the thumb, with a gap of less than one 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 (2018). A 10 percent rating is assigned for limitation of motion of the thumb, with a gap of one or 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 20 percent 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. Id. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2018). However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned for X-ray evidence of degenerative arthritis involving 2 or more major joints or 2 or more minor joint groups. Id. A maximum 20 percent rating is assigned for X-ray evidence of degenerative arthritis involving 2 or more major joints or 2 or more minor joints, with occasional incapacitating exacerbations. Id. The 10 and 20 percent ratings based on X-ray findings of degenerative arthritis will not be combined with ratings based on limitation of motion. Id. In July 2020, the RO increased the Veteran's disability rating for the entirety of the appeal period to 10 percent based on arthritis with painful motion. A higher schedular rating is not warranted unless the evidence demonstrates amputation, favorable ankylosis involving the thumb and any finger, or limited motion of the thumb with a gap of more than two inches between the thumb pad and fingers. The Veteran's is not shown to have symptoms more closely approximating a higher rating for his left thumb disorder. In a January 2014 VA examination, the Veteran reported a dull ache in the joint with aggravation due to weather. He stated that several years ago he had difficulty holding things in the left hand and would drop them without knowing it. The Veteran did not report flareups which impacted the function of his hand. There was no limitation of motion and no additional limitation with repetitive use testing. There was no gap between the thumb pad and the fingers before or after repetitive use testing. The Veteran was not found to have ankylosis nor amputation or impairment that was so diminished that amputation with prosthesis would equally serve the Veteran. The examiner stated that the Veteran's thumb did not impact his ability to work. The Veteran's September 2016 VA examination the Veteran reported pain on and off since the injury which had progressed to constant pain. He stated that the pain increased with picking things up, he reported that he dropped things occasionally and that his thumb shook at time. It was noted that there was additional functional loss due to repeated use in that he had difficulty holding a glass and picking things up with his left hand when he had to put pressure on his thumb. He had a gap between the pad of the thumb and the fingers of 2 centimeters. Pain was noted and caused functional loss. Additional contributing factors were less movement than normal and weakened movement. There was no ankylosis. At an August 2020 VA examination, the Veteran reported constant achy pain in the left thumb that was a 4 out of 10 on the pain scale and that he had sharp pain which was intermittent. The Veteran reported flare-ups with certain activities requiring him to keep his hand immobile in a brace and use motrin as needed for pain. The Veteran reported functional loss including due to repeated use, he reported difficulty opening small packages, gripping, pushing off with his left hand and using tools. There was no gap between the pad of the thumb and the fingers. Pain was noted but did not result in or cause functional loss. There was evidence of pain with the use of the hand. Flareups were estimated to lead to reduced flexion. Repetitive testing did not cause additional functional loss of range of motion. There was no ankylosis or amputation. The Veteran's treatment notes similarly note left thumb pain and some troubles gripping and holding on to things. Taken as a whole, the evidence does not demonstrate that a higher, 20 percent disability rating is warranted. While some pain, loss of motion and functional impairment is noted, neither the Veteran's treatment records, nor his VA examinations or statements demonstrate symptoms more closely approximating ankylosis, a two-inch gap between the thumb pad and finger or that the Veteran would be equally served by amputation. REASONS FOR REMAND Entitlement to Service Connection for Hearing Loss is Remanded. Entitlement to Service Connection for Tinnitus is Remanded. In its September 2020 decision vacating the Board's denial of service connection for tinnitus, the Court found that the record reasonably raised a claim for service connection for hearing loss. Thus, development of a claim for service connection for hearing loss is necessary and the Veteran should be afforded a new VA examination in order to determine the etiology of the Veteran's hearing loss and tinnitus, to include whether the Veteran's hearing loss is related to his hearing loss. Further, the Board notes that, in 2019, the Court directed attention to the fact that a 2006 Institute of Medicine Report often cited by examiners contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. See McCray v. Wilkie, 31 Vet. App. 243 (2019). In rendering his or her medical opinion, the examiner is cautioned against relying upon these findings. Entitlement to Service Connection for a Psychiatric Disorder to Include PTSD. In its November 2018 Remand, the Board requested a new VA examination in order to obtain an etiology opinion regarding his claimed psychiatric disorder. An examination was conducted in September 2020. Regrettably, the Board finds that examination inadequate and a new examination is necessary. More specifically, the examiner found that the Veteran did not have PTSD and that anxiety disorders were not related to service. In support of these conclusions the examiner mentions only that the Veteran was only noticed in 2013. The Board notes that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology" and that a lack of treatment records should not automatically lead to a conclusion that the Veteran did not experience psychiatric symptoms since service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Board finds the examination inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's treatment notes include multiple psychiatric diagnoses to include anxiety and adjustment disorder. The record also includes evidence of positive PTSD screenings, and diagnoses to include "rule/out PTSD." Such should be discussed in the examiner's findings. Entitlement to a Total Disability Rating Based on Individual Unemployability As the remanded issues may have an impact on the Veteran's claim for TDIU, especially given that the evidence includes Social Security Administration records which point to psychiatric disorders as being a contributing cause to the Veteran's work impairments, these issues may have an impact on the Veteran's TDIU claim and are therefore inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined claim is therefore required The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to ascertain the nature and etiology of the Appellant's bilateral hearing loss disability. The examiner should review the claims file and a copy of this REMAND. The examiner should specifically opine as to: a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss and/or tinnitus had its onset during, or is otherwise etiologically related to the Veteran's service. b) whether tinnitus is at least as likely as not related to, proximately due to, or aggravated beyond its natural progression by his hearing loss disability. In so doing, the examiner should refrain from placing any reliance on the 2006 study from the Institute of Medicine, pertaining to delayed onset of hearing loss, which the Court has determined contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) or psychiatric disorder found. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 3. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.