Citation Nr: 0007008 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-11 907A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to assignment of a compensable evaluation for degenerative joint disease, left thumb. ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had unverified active service from July 1960 to August 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision by the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA) which (in part) granted service connection for the veteran's left thumb disability and assigned a zero percent rating, effective November 6, 1995. The veteran expressed disagreement with the zero percent rating in September 1997, and a statement of the case was issued later that month. The veteran's substantive appeal was received in August 1998. In a statement dated July 28, 1997 (received August 1, 1997) the veteran essentially raised the issue of entitlement to an increased rating for his service-connected low back disability. This matter is hereby referred to the RO for appropriate action. FINDING OF FACT The veteran's service-connected left thumb disability is manifested by pain, some loss of grip strength, and x-ray evidence of arthritis, but the resulting disability picture does not approximate impairment similar by analogy to unfavorable ankylosis. CONCLUSION OF LAW The schedular criteria for entitlement to a 10 percent rating (but no higher) for service-connected degenerative arthritis of the left thumb have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5224 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that his service-connected left thumb disability is more disabling than currently evaluated. The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, his claim for assignment of a higher evaluation is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of this issue has been obtained. No additional action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). Moreover, since the present appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluation, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Service connection for degenerative joint disease of the left thumb was granted in an August 1997 rating decision, and a noncompensable evaluation was assigned, effective November 6, 1995. The veteran's left thumb disability is rated under the provisions of Diagnostic Codes 5003-5224. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, and then on the basis of limitation of motion under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5224, a 10 percent rating is warranted for favorable ankylosis of the thumb, and a 20 percent rating is warranted for unfavorable ankylosis. The medical evidence of record includes an August 1997 VA examination. The evidence reveals that the veteran is right handed. The Board again observes that there is X-ray evidence to show that the veteran has degenerative arthritis of the left thumb. The United States Court of Appeals for Veterans Claims (the United States Court of Veterans Appeals prior to March 1, 1999) (Court) held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that painful motion of a major joint caused by degenerative arthritis (where the arthritis is established by X-ray) is deemed to be limited motion and entitled to a minimum 10 percent rating under Diagnostic Code 5003, even though there is no actual limitation of motion. See also 38 C.F.R. § 4.59. Therefore, based on the foregoing, a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003 is warranted for the current symptomatology of the veteran's service-connected degenerative arthritis of the left thumb. In his statements submitted in support of his claim, the veteran has indicated that he has experienced left thumb pain while performing activities of everyday life such as tying his shoes, opening a door, and gripping various objects. The Board notes here that additional functional loss due to pain, fatigue, incoordination is to be considered.. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Nevertheless, the totality of the evidence, while showing that the veteran's continues to suffer left thumb disability with pain, has not shown that the pain associated with the disability effectively results additional functional loss so as to approximate unfavorable ankylosis. As such, the Board is compelled to find that the criteria set forth by regulation for a rating in excess of 10 percent has not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5224. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service-connected left thumb disorder at issue has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In sum, the preponderance of the evidence shows that impairment from the service-connected left thumb warrants no more than a 10 percent rating at any time during the veteran's claim. Fenderson. As the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the left thumb disability, the benefit-of-the- doubt doctrine does not otherwise permit a finding of entitlement to a rating in excess of 10 percent. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a 10 percent evaluation for degenerative joint disease, left thumb, is warranted. To this extent, the appeal is granted. REMAND By rating decision in July 1997, the RO (in part) granted service-connection for the veteran's cervical spine disability and assigned a 20 percent disability rating effective June 5, 1995. In a statement dated July 28, 1997 (and received August 1, 1997) the veteran essentially expressed disagreement with the 20 percent rating. Under the circumstances, the record shows that he has effectively initiated an appeal from the July 1997 rating decision. Appropriate action, including issuance of a statement of the case, is therefore necessary with regard to the initial evaluation assigned for the veteran's cervical spine disability. 38 C.F.R. § 19.26. Although the Board in the past has referred such matters to the RO for appropriate action, the United States Court of Appeals for Veterans Claims (Court) has now made it clear that the proper course of action is to remand the matter to the RO. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is hereby REMANDED to the RO for the following actions: The RO should take appropriate action pursuant to 38 C.F.R. § 19.26, including issuance of a statement of the case, on the appeal initiated by the veteran from the July 1997 rating decision which addressed the assignment of an initial evaluation of his cervical spine disability. The veteran should be clearly advised of the need to file a timely substantive appeal if the veteran wishes to complete an appeal from this determination. The purpose of this remand is to comply with the holding of the Court in Manlincon v. West, 12 Vet. App. 238 (1999). The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ALAN S. PEEVY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).