Citation Nr: 18132336
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-05 191
DATE:	September 6, 2018
ORDER
Entitlement to a 20 percent rating for residuals of left thumb trauma from May 25, 2012 is granted.
FINDINGS OF FACT
1.  Prior to April 30, 2014, the Veteran’s left thumb trauma more nearly approximated limitation of motion with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  
2.  During the appeal period, the Veteran's left thumb trauma has not been manifested by amputation of the thumb with metacarpal resection.
CONCLUSION OF LAW
The criteria for entitlement to a 20 percent rating for residuals of left thumb trauma prior to April 30, 2014 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5228.  
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active duty service from July 1972 to December 1983.  He was scheduled for a video conference hearing in July 2016, but he canceled his hearing request.  
Entitlement to a rating in excess of 10 percent for residuals of left thumb trauma prior to April 30, 2014
The Veteran seeks a higher rating for his left thumb disability prior to April 30, 2014.  In his substantive appeal received in February 2016, he asserted that a 20 percent disability is warranted from May 25, 2012, the date of his increased rating claim. 
Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. 
In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered.  Massey v. Brown, 7 Vet. App. 204, 208 (1994).  In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40  allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.
Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans' Claims also has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance." Id., quoting 38 C.F.R. § 4.40.
In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered.  Massey v. Brown, 7 Vet. App. 204, 208 (1994).  In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
A March 1984 rating decision granted service connection for a left thumb disability.  A 10 percent rating was assigned from December 1983.  A claim for an increased rating was received in May 2012.  A September 2013 rating decision continued the 10 percent rating.  A January 2016 rating decision granted a 20 percent rating, effective from April 30, 2014.
The Veteran’s left thumb disability is rated according to Diagnostic Code 5224, pertaining to ankylosis of the thumb.  A 10 percent rating is assignable for favorable ankylosis of the major or minor thumb.  A 20 percent rating is assignable for unfavorable ankylosis of the major or minor thumb.  
A note to DC 5224 indicates that the rater shall also 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.  
Under DC 5228, a 10 percent rating is warranted for limitation of motion of the major or minor thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A maximum 20 percent rating under DC 5228 is warranted for limitation of motion of the major or minor thumb with a gap of more than two inches between the thumb pad and the ringers, with the thumb attempting to oppose the fingers.
After a review of the evidence, the Board finds that a 20 percent rating is warranted for residuals of left thumb trauma from May 25, 2012.
In the increased rating claim, the Veteran reported great difficulty holding and gripping with his left thumb.  
The Veteran had a VA examination in August 2013.  The Veteran reported that he fell on his thumb in the 1970’s.  He reported problems with it since then, including a lot of pain with trying to do his job.  
The examiner noted that the Veteran is right-handed.  Therefore, his thumb disability involves his minor extremity.
The Veteran denied flare-ups impacting the function of his hand.  Painful motion of the thumb was noted.  There was no gap between the thumb pad and the fingers.  The Veteran did not have a gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips.  There was no limitation of extension or evidence of painful motion for the index finger or long finger.  The Veteran was unable to complete repetitive use testing because of pain.  The examiner noted functional loss and functional impairment of the fingers and thumbs.  There was additional limitation of range of motion of the fingers and thumbs after repetitive use testing.  The functional loss of the thumb included weakened movement of the left thumb, incoordination or an impaired ability to execute skilled movements smoothly, and pain on movement.  There was pain on palpation of the thumb.  The Veteran had 3/5 hand grip strength.  He did not have ankylosis of the thumb.  He reported that he regularly used a spica splint.  The examiner indicated that diagnostic studies showed degenerative or traumatic arthritis of the left hand.  Regarding functional impact, the examiner indicated that the osteoarthritis of the left thumb would prevent heavy lifting and would require increased frequency of breaks for repetitive tasks.  
A private treatment record from an orthopedic surgeon, dated in October 2013, noted years of left metacarpophalangeal joint thumb pain following an untreated gamekeeper’s thumb and volar collateral ligament sprain in 1975.  The record indicated that there was a progressive deterioration in his symptoms since 1975 to the point where the MP joint was unstable and painful with any type of lifting activities.  
The Veteran had a VA examination in April 2014.  The Veteran reported that his left thumb had gotten worse in the past few years, and he could not lift or hold anything very well.  His symptoms included flare-ups, constant pain, and painful motion of the thumb.  On examination, there was a gap between the thumb pad and the fingers of more than 2 inches (5.1 cm).  There was painful motion beginning at a gap of 1 to 2 inches.  There was a 1-inch gap between the fingertips and the proximal transverse crease on the palm.  There was no objective evidence of painful motion. There was no limitation of motion of extension or evidence of painful motion for the index finger or long finger. The Veteran did not have additional limitation of motion for any fingers with repetitive use testing.  He did have a gap between the thumb pad and the fingers post-test, which was greater than 2 inches.  The Veteran had a gap between his fingertips and the proximal transverse crease of the palm in attempting to touch the palm with his fingertips post-test.  The gap affected the index finger, long finger, ring finger, and little finger.  There was no limitation of extension for the index finger or long finger post-test.  The examination noted that the functional loss of the fingers and thumb included weakened movement, incoordination, pain on movement, swelling, and deformity.  The Veteran had tenderness and pain to palpation of the joints and soft tissue of the left hand.  
In a January 2016 rating decision, the RO assigned a 20 percent rating for residuals of left thumb trauma from April 30, 2014.  The 20 percent rating was based on limitation of motion with a gap of more than two inches (5.1 cm) and symptoms of degenerative arthritis, limitation of motion, weakness, and painful motion of the left thumb.  
The Board finds that a 20 percent rating is warranted for residuals of left thumb trauma from May 25, 2012.  Although the April 2013 VA examination did not show a gap between the thumb pad and the fingers, the examination noted functional loss of the thumb.  The examination showed weakened movement, incoordination and impaired ability to execute skilled movements smoothly, and pain on movement.  The functional loss of the left thumb more nearly approximates the criteria for a 20 percent rating under Diagnostic Code 5228.  
The evidence does not show that residuals of left thumb trauma is manifested by amputation of the minor thumb with metacarpal resection, which is contemplated by Diagnostic Code 5152 for a 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5152.  Therefore, a rating higher than 20 percent is not warranted during the appeal period. 
In sum, the Board finds that a 20 percent rating, but no higher, is warranted for left thumb trauma prior to April 30, 2014.  The Board has considered the benefit of the doubt doctrine in making this determination.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 
JENNIFER HWA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Catherine Cykowski 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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