Citation Nr: A25035772 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230509-345420 DATE: April 17, 2025 ORDER A rating higher than 10 percent for residuals of a right thumb fracture is denied. FINDING OF FACT Right thumb fracture residuals are not manifested by 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. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for residuals of a right thumb fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from June 1979 to January 1983. An initial rating decision was issued in November 2021; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In July 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim. In October 2022, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, denied the claim based on the evidence of record at the time of that decision. In his May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Hearing Request Shortly after submitting his VA Form 10182 Notice of Disagreement, the Veteran submitted a written statement indicating that he wanted a Board video hearing in lieu of the Direct Review option. For the following reasons, the Board will adjudicate the appeal under Direct Review. First, a docketing letter was sent to the Veteran prior to receipt of his written statement. That letter informed him that he may request to change from one Board AMA docket to another by submitting a new VA Form 10182. He was also informed that this must be done within 60 days of the first VA Form 10182 he filed, or within one year of the rating decision being appealed, which is from October 2022 in this instance. The letter also explained that he may request an extension of time to submit the new VA Form 10182 if he can show good cause. Despite this notice, no new VA Form 10182 was received within the specified time frame. A May 2023 Informal Hearing Presentation (IHP) from the Veteran's representative acknowledged the written hearing request but did not provide any further information. Second, the Veteran received another letter in January 2025 again notifying him that a docket change request must include a new VA Form 10182. It reiterated the time frame for submitting the new form, which had expired as of January 2025. The letter again informed him that he may request an extension of time to submit the request if he can show good cause. To date, no new VA Form 10182 or request for an extension has been received from the Veteran or his representative. Therefore, the Board will proceed with adjudicating the appeal under the Direct Review Docket. Increased Rating The Veteran's right thumb fracture residuals are currently assigned a 10 percent rating under 38 C.F.R. § 4.71a, DC 5228, for limitation of motion of the thumb. Under that code, a higher 20 percent rating is assigned 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. The 20 percent rating is the maximum rating available under DC 5228. 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). A higher 20 percent rating is not warranted in this case. The Veteran underwent VA examinations in October 2021 and July 2022. Both examinations found no gap between the thumb pad and fingers on testing, including with repetitive use over time. The Veteran denied the presence of flare-ups on both occasions. Per these findings, the plain criteria of the 20 percent rating of DC 5228 have not been met. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss such as decreased grip strength, difficulty opening doorknobs, and difficulty using a steering wheel. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of limitation reflected by his statements do not approximate the criteria for the higher 20 percent rating. Notably, the October 2021 VA examiner included a diagnosis of ankylosis in addition to posttraumatic arthritis. Ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007). A higher 20 percent rating is available under DC 5224 for unfavorable ankylosis of the thumb. However, the Board finds that a rating under that code is not warranted. First, while the October 2021 examiner diagnosed ankylosis, she noted that no ankylosis was present in the physical examination section of the report. Second, range of motion testing during the examination showed at least 25 degrees of flexion of the metacarpophalangeal joint and 65 degrees of the interphalangeal joint, which is not consistent with the immobility of a joint present with ankylosis. Third, the additional VA examination in July 2022 specifically noted the absence of any ankylosis, thus resolving any ambiguity from the prior examination. Finally, the Board acknowledges that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). However, as discussed, the Veteran was able to engage in significant range of motion during the October 2021 examination, and this was mirrored in the July 2022 examination as well. He has also not reported any fixation or immobility of the thumb to otherwise indicate any functional equivalent of ankylosis. For these reasons, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating higher than 10 percent for residuals of his right thumb fracture. As the evidence of record persuasively weighs against a ? higher rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patel, Shamil 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.