Citation Nr: 22013383 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-10 304 DATE: March 9, 2022 ORDER Entitlement to service connection for skin cancer is granted. Entitlement to an initial 10 percent rating from August 22, 2011 to March 17, 2021, for a right thumb disability is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. The record evidence shows that the Veteran's skin cancer was at least as likely as not related to sun exposure in service. 2. The record evidence shows that, prior to August 22, 2011, the Veteran's right thumb disability was shown to be manifested by pain 3. The record evidence shows that, beginning August 22, 2011, the Veteran's right thumb disability was manifested by limitation of motion and painful motion; there was no ankylosis or limitation of motion with a gap of more than two or more inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial 10 percent rating from August 22, 2011 to March 17, 2021, for a right thumb disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to July 1968. This matter is on appeal before the Board of Veterans Appeals (Board) from June 2015 and January 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a video conference hearing before a Veterans Law Judge. A transcript of the hearing is in the record. In February 2021, the Board remanded the case, which included entitlement to service connection for erectile dysfunction. Since a September 2021 rating decision granted service connection for erectile dysfunction, that matter is no longer before the Board. See Grantham v. Brown, 114 F .3d 1156 (1997). In November 2021, the Board notified the Veteran that the Veterans Law Judge who conducted the February 2021 hearing was no longer employed at the Board and he was given an opportunity to have another hearing. Since he did not respond within the allotted time, the Board assumes he does not want another hearing and will proceed to adjudicate his claims. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. There were no substantive changes that affected the rating criteria for diagnostic codes applicable to the Veteran's thumb disability. See 38 C.F.R. § 4.71a. 1. Entitlement to service connection for skin cancer During the October 2020 Board hearing, the Veteran asserted that his skin cancer was due to exposure to extreme sun during service. He indicated that he was outside all day every day. He worked in 100 degree temperatures and suffered from sunburn in service. He added that all of his post-service employment was indoors. Service treatment records, to include his July 1968 separation examination and medical history report, contained no evidence of skin cancer. Other evidence corroborated the conditions under which he worked when in Thailand. The Veteran's military occupational specialty (MOS) was vehicle operator which involved being outside and moving aircraft and various vehicles around. Two buddy statements dated in July 2014 and in July 2016 indicated the perimeter and flight line were barren, which was corroborated by a photograph of the flight line showed a large, open area with little vegetation or protection from the sun. The Veteran's attorney submitted information in December 2020 from the Mayo Clinic about how actinic keratoses (AK) was caused by sun damage and that it turned into cancer if left untreated. The medical evidence showed the Veteran was diagnosed with squamous cell carcinoma (SCC) in December 2002 that arose from AK, basal cell carcinoma (BCC) in June 2011, SCC in February 2017, and BCC in October 2019 and March 2021. In March 2021, a VA physician reviewed the Veteran's claims file and opined that the currently diagnosed conditions related to skin cancer or their residuals were at least as likely as not incurred in or caused by the military service, to include in-service excessive sun exposure. A letter written by a serviceman noted that he did the same job as the Veteran and that the planes were parked near the perimeter of the base which led to very high level of UV radiation exposure from the bright sun light. The UV damaged the DNA in the skin cells and could cause skin cancer. She concluded that the Veteran was exposed to the bright sun for many hours each day that caused a very strong possibility of later developing skin cancer. The Board finds this opinion is probative, persuasive, and consistent with the evidence. In light of the Veteran's in-service sun exposure, post-service skin cancer, and the nexus opinion which linked the two, the Board also finds that service connection for skin cancer is granted. 2. Entitlement to an initial compensable rating prior to March 17, 2021 and an initial rating greater than 10 percent effective March 17, 2021, for a right thumb disability The Board notes that a January 2008 rating decision granted service connection for a left thumb disability and assigned a noncompensable rating, effective June 5, 2007. In July 2014, the Veteran filed a claim of service connection for a right thumb disability. In the January 2017 rating decision that granted service connection for a right thumb disability, the RO assigned a noncompensable rating effective June 5, 2007. The RO explained that the decision was meant to correct and clarify which thumb was fractured in service and, even though the Veteran did not claim a thumb disability in the June 2007 claim, there was evidence of injury in service treatment records. Thus, the Board must consider the rating for the right thumb dating back to the June 5, 2007 effective date. The record evidence shows that an August 22, 2011 VA treatment record noted that the Veteran reported having a three to four year history of right hand pain that significantly worsened in the past six months. He also believed his right hand was weaker. He was right hand dominant and had trouble writing and opening bottles. The examination indicated pain limited small hand muscles and the clinician suspected 5/5 strength. Active range of motion was stiff and slow due to pain and there was mild tenderness over the first metacarpal. In October 2011, right hand X-rays revealed moderate to severe degenerative changes in the first carpometacarpal joint, mild degenerative changes in the radiocarpal joint, evidence of prior distal fifth metacarpal fracture, mild degenerative changes of the third, fourth, and fifth DIP joints, and mild degenerative joint disease at the first MCP joint. The impression was severe arthritis at the base of the right thumb. VA treatment records in April 2013 noted the Veteran's complaints of ongoing right thumb pain with limited range of motion and tenderness at the base of the thumb. Even though his thumb hurt, the Veteran reported that he was still able to grip a golf club. On examination, the grind test revealed the CMC joint was mildly enlarged. The clinician ordered him a spica thumb splint to wear at night. On April 2015 VA examination, the Veteran reported that his current symptoms were weakened right hand strength and aching in the right thumb joint. He denied having flare-ups. The examiner noted that on initial testing there was evidence of limitation of motion, but there was no gap between the thumb pad and the fingers or objective evidence of painful motion. The Veteran performed three repetitions and the clinician indicated that there was additional limitation of motion for fingers post-test but noted there was still no gap between the thumb pad and the fingers. The examiner noted there was functional loss or functional impairment in the form of less thumb movement than normal and pain on movement. There was tenderness on thumb palpation. There was no evidence of ankylosis. The thumb disability impacted the Veteran's ability to work due to mild impairment with lifting and manipulating objects. Contributing factors were pain, weakness, fatigability and/or incoordination, but no additional limitation of functional ability during flare-ups or after repeated use over time. A March 2019 VA treatment record noted that the Veteran's right hand range of motion was functional. There was a deficit in strength with a fair grip strength, which the Veteran attributed to arthritis. His sensation was functional, and coordination was impaired with mild difficulty holding a pen with his dominant right hand to write his name in block print. In October 2020, the Veteran testified that he was unable to bend his finger all the way down and he was unable to grip things. See October 2020 Hearing Transcript. On March 2021 VA examination, the Veteran reported symptoms of stiffness and pain. Flare-ups occurred every other day, were severe, and "hurts like crazy." During flare-ups he could not grip, and he attributed his functional loss or impairment to a weak grip. Active and passive range of motion testing revealed MCP flexion to 100 degrees, IP flexion to 90 degrees, and extension for both joints to 0 degrees. There was no gap between the pad of the thumb and fingers on active or passive motion but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The tenderness was moderately severe and at the base of the MCP joint. Although there was pain with weight-bearing and active and passive range of motion, it did not cause functional loss. There was no change in the range of thumb motion or a gap between the pad of the thumb and fingers after repetitive use testing. The examiner indicated that during flare-ups or with repeated use over time, the Veteran's thumb experienced pain, fatigability, and weakness. The estimated range of motion at both times was MCP joint flexion to 80 degrees, IP joint flexion to 90 degrees, and extension of both joints to 0 degrees. The estimated gap between the thumb pad and fingers immediately after repeated use over time and flare-ups was 5 centimeters. The Veteran was unable to grip during flare-ups or after overuse due to pain and weakness. There was no evidence of ankylosis, and his right hand grip strength was 4/5. The examiner noted that the right thumb disability impacted the Veteran's functional ability to perform occupational tasks due to a weakened grip that prevented him from lifting heavy objects at work. Although the RO assigned a noncompensable rating for the appeal period prior to March 17, 2021, the evidence indicated that a 10 percent rating was assignable beginning August 22, 2011, based on evidence of that the right thumb arthritis was manifested by painful motion and limitation of motion. The Veteran's right thumb limitation of motion and painful motion also were noted in April 2013, April 2015, and March 2019 VA treatment records and on VA examination. Even though the treatment records did not show the right thumb motion was limited to a compensable degree under DC 5228, when viewed in conjunction with 38 C.F.R. § 4.59, the right thumb arthritis may be assigned a minimal compensable rating. The Board has not assigned a compensable rating for any period from June 5, 2007 to August 22, 2011, because, even though the August 2011 treatment record showed the Veteran reported a three to four year history of right thumb pain and a significant increase in pain over the past six months, there was no lay or medical evidence of limitation of motion prior to the August 2011 treatment record. The criteria were not met for an initial rating greater than 10 percent at any time. While functional impairment was shown due to painful motion and a weakened grip, there was no evidence that the disability was manifested by a gap more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. In this regard, the Veteran was able to grip a golf club in April 2013 and on April 2015 VA examination there was no gap between the thumb pad and the fingers in initial range of motion testing or after repetitive use testing. The only time a gap was indicated was on the March 2021 VA examination but those findings fell within the parameters of no greater than a 10 percent rating. Notably, those findings were estimated during flare-ups and after repeated use over time, and when those factors along with fatigability and weakness were considered, they did not produce findings consistent with a higher rating. For the reasons stated, the Board finds that, after resolving reasonable doubt in the Veteran's favor, the evidence supports assigning an initial 10 percent rating from August 22, 2011 to March 17, 2021. There is persuasive evidence against an initial compensable rating for the period prior to August 22, 2011, and an initial rating greater than 10 percent beginning August 22, 2011, so the claim is denied for those periods. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.