DERMATOPHYTOSIS (RINGWORM)

JAMES L. MARCH · 2021 · Case ID: 21017401

DENIED

Summary

The veteran, who served in the Marine Corps from July 1991 to July 1995, appeals the denial of service connection for a right foot disability (tinea pedis), an increased rating for left shoulder disability, and a compensable rating for right thumb disability. The Board denied service connection for the right foot, finding the veteran's tinea pedis did not have its onset in service and lacked a nexus to service. While a private medical opinion suggested a link to trench foot, the VA examiner clarified the diagnosis as tinea pedis and opined it was less likely than not related to service, noting no in-service documentation or diagnosis of trench foot. The Board found the VA examiner's opinion more persuasive. For the left shoulder, the veteran sought an increased rating beyond the current 20 percent. Despite reporting significant pain and functional loss, the Board found the evidence did not support a rating higher than 20 percent, as the range of motion limitations, even with pain, did not meet the criteria for a higher rating under Diagnostic Code 5201. The Board also considered and rejected other diagnostic codes for shoulder disability. For the right thumb, the veteran sought a compensable rating. The Board found no evidence of ankylosis or limitation of motion meeting the criteria for a compensable rating under Diagnostic Code 5228, despite the veteran's complaints of pain and decreased grip strength. The Board assigned a noncompensable rating based on the lack of a gap between the thumb pad and fingers and no significant functional loss documented during examinations. The benefit of the doubt doctrine was not applied as the preponderance of the evidence was against the claims.

Rationale

Weight of evidence against in-service onset or nexus; VA examiner opined less likely than not related to service; Private opinion lacked adequate rationale and diagnosis was clarified

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-45 345

Full Decision Text

Citation Nr: 21017401
Decision Date: 03/25/21 Archive Date: 03/25/21

DOCKET NO. 17-45 345
DATE: March 25, 2021

ORDER

Service connection for a right foot disability is denied.

A rating in excess of 20 percent for left shoulder disability is denied.

A compensable rating for right thumb disability is denied.

FINDINGS OF FACT

1. The weight of the evidence is against a finding that the Veteran’s right foot disability, diagnosed as tinea pedis, had its onset during active service or is otherwise related to such service.

2. For the entire period on appeal, the evidence of record shows that the Veteran’s left shoulder disability has resulted in limitation of motion less than shoulder level but greater than 25 degrees from the side.

3. For the entire period on appeal, the Veteran’s right thumb disability is not manifested by a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5201.

3. The criteria for a right thumb disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5228.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had served on active duty from July1991 to July 1995. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a January 2020 hearing. In May 2020, the Board remanded these matters for further evidentiary development.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Right Foot Disability

The Veteran asserts that he has a right foot disability that was caused by service.

The record reflects the Veteran has a current diagnosis of tinea pedis. See October 2020 VA Examination Report. The questions in this case are whether the Veteran’s tinea pedis had its onset during his active service, or whether a causal relationship or nexus exists between the Veteran’s tinea pedis and an event or injury during his active service.

The Board finds that the Veteran’s tinea pedis did not have its onset during his active service, and there is no lay or medical evidence of record which suggests there is a causal relationship or nexus between his tinea pedis and an event or injury during his active service.

This matter was previously remanded by the Board in May 2020, so that the Veteran could be afforded an examination upon review of a July 2018 private medical opinion. The July 2018 private opinion provided a diagnosis of right trench foot and opined, without adequate rationale, that it was causally related to service.

Pursuant to the May 2020 Board remand, the Veteran underwent VA examination in July 2020. Following review of the claims file and examination of the Veteran, the examiner opined,

The Veteran’s claimed condition of trench foot is less likely than not incurred while in-service. There is no documentation to show that the Veteran had any issues with his right foot until seen by a chiropractor in July 2018 who diagnosed trench foot. It is my medical opinion that the Veteran does not have a diagnosis of trench foot and therefore it
private medical opinion. The July 2018 private opinion provided a diagnosis of right trench foot and opined, without adequate rationale, that it was causally related to service.

Pursuant to the May 2020 Board remand, the Veteran underwent VA examination in July 2020. Following review of the claims file and examination of the Veteran, the examiner opined,

The examiner additionally explained,

There is no trench foot present. The Veteran presents with what appears to be tinea pedis of the right foot. On medical records review, it appears that the Veteran was diagnosed with trench foot by a chiropractor and this is outside of their scope of practice to diagnose trench foot.

The RO sought clarification following the July 2020 VA examiner’s finding that the Veteran does not have a current diagnosis of right trench foot. Accordingly, in an October 2020 VA addendum, the VA examiner clarified that the Veteran’s right foot condition is tinea pedis rather than trench foot. The examiner stated,

Medical and VA records reviewed. The Veteran served in the Marine Corps from July 10, 1991 - July 9, 1995. Medical record review reveals report of medical history from April 1995 that the Veteran listed “skin conditions” with no further explanation. He was treated in February 1995 for a laceration to the anterior right tibial region. Report of medical examination from April 1995 lists tinea versicolor of chest and abdomen as the only skin finding. The Veteran was seen in July 1994 for diffuse Poison Ivy to include the right lower extremity. In 2013, there is a note with mention of right foot cracks that come and go and the Veteran was diagnosed with and treated for Tinea Pedis. The Veteran was seen by a chiropractor and diagnosed “trench foot” in July 2018.

The examiner additionally opined that the Veteran’s tinea pedis was less likely than not caused by service. As rationale, the examiner explained,

The Veteran’s condition is tinea pedis rather than trench foot. The Veteran’s claimed right foot condition which has been diagnosed as tinea pedis is less likely than not incurred while in-service. The Veteran’s medical records only contain information which show the Veteran was seen for wide spread poison ivy to include his right lower extremity in 1994 and a laceration to the right anterior tibial region in February 1995. There are no other visits for any right foot skin condition. Poison ivy is an allergic reaction to an oily resin called urushiol. Tinea pedis is a fungal infection of the foot. The two are unrelated[.] [T]he fungal infection of the foot [is] related to a laceration of the leg. It is my medical opinion that the Veteran’s claimed right foot condition is unrelated to his diagnosis of poison ivy or right lower extremity laceration while in-service.

Given the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran’s currently diagnosed tinea pedis had its onset in service and/or is related to his active service. Accordingly, service connection for a right foot disability, diagnosed as tinea pedis, is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). Because the preponderance of the evidence is against the claim, however, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for a right foot disability is denied.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in 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. § 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
2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for a right foot disability is denied.

Increased Ratings

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. Those provisions, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4. 40, 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evaluation, however, of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Left Shoulder

The Veteran’s left shoulder disability is assigned a 20 percent rating under the hyphenated DC 5010-5201. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

A July 2020 VA examination report reflects that the Veteran’s right hand is his dominant hand. Thus, the Veteran’s left arm is his minor arm.

The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. Diagnostic Code 5201, however, for rating disabilities of the minor shoulder and arm, under the next higher and maximum 30 percent rating, has not changed.

Under DC 5201, for the minor arm, a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a
July 2020 VA examination report reflects that the Veteran’s right hand is his dominant hand. Thus, the Veteran’s left arm is his minor arm.

Under DC 5201, for the minor arm, a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I.

DC 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The plain meaning of DC 5201, therefore, is that any “limitation of motion of” a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm’s motion is limited. Yonek, 772 F.3d at 1359.

During a December 2014 VA examination, the Veteran reported daily pain of 9/10, for which he took Naproxen and Hydrocodone. He referred to pain in his neck and shoulder blade. The pain affected dressing, driving, and bathing. He reported flare-ups that were daily and after daily work. With flare-ups, the pain increased to 10/10 and lasted 4 to 24 hours. They also affected his sleep. The Veteran report having functional loss or functional impairment that involved dressing, decreased left arm swing during ambulation, household maintenance, and job as landscaper. On examination, the Veteran’s left shoulder demonstrated flexion to 60 degrees and abduction to 80 degrees. Flexion, abduction, and external rotation exhibited pain. The range of motion itself contributed to functional loss when doing overhead activities and donning shirts and jackets. Flexion, abduction, external rotation, and internal rotation exhibited pain. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the AC joint, bicipital groove, and posterior sulcus. The Veteran was not able to perform repetitive use testing with at least three repetitions. He was not being examined immediately after repetitive use over time. The examination supported the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Pain and lack of endurance were factors that caused this functional loss. The examination was not being conducted during a flare-up. The Veteran reported flare ups a few times per week that were moderate to severe. The examination supported the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. Pain and lack of endurance were factors that caused this functional loss. The examiner was unable to describe in terms of range of motion. The examiner indicated that the examination was not being performed during a flare up and any description would be due to mere speculation. Muscle strength was a 3/5. The Veteran did not have muscle atrophy or ankylosis. All specific tests for rotator cuff conditions were positive. There was no shoulder instability, dislocation or labral pathology suspected. He did not have an AC joint condition or any other impairment of the clavicle or scapula. There was tenderness on palpation of the AC joint. Cross-body adduction test was positive. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The examiner noted that there was significant guarding of the left shoulder, as if holding
The Veteran did not have muscle atrophy or ankylosis. All specific tests for rotator cuff conditions were positive. There was no shoulder instability, dislocation or labral pathology suspected. He did not have an AC joint condition or any other impairment of the clavicle or scapula. There was tenderness on palpation of the AC joint. Cross-body adduction test was positive. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The examiner noted that there was significant guarding of the left shoulder, as if holding the left upper extremity in a sling. The Veteran did not report the use of any assistive devices. The examiner indicated that due to the Veteran’s left shoulder condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There was no objective evidence of crepitus. With regard to functional impact, the examiner noted that the Veteran experienced debilitating pain with activities of daily living, to include upper body dressing, bathing, and any overhead activities.

Pursuant to the May 2020 Board remand, the Veteran underwent a VA examination in July 2020. The Veteran reported pain in the left shoulder that is excruciating. The pain hurt into his neck and down the arm. The pain was rated a 10 out of 10. He further reported he felt weak in the left shoulder. The Veteran reported flare-ups when he “overdoes it.” He also reported having functional loss or functional impairment in that he could not use his left arm as well. On examination, the Veteran’s left shoulder demonstrated flexion to 80 degrees and abduction to 70 degrees. Flexion, abduction, and external rotation exhibited pain. There was objective evidence of localized tenderness or pain on palpation of join or associated soft tissue. The examiner described it as moderate and located in the AC joint. There was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Pain caused this functional loss. The examination was not being conducted during a flare up. The examination was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups. Pain caused this functional loss. Additional contributing factors of disability included weakened movement. The examiner noted that weakness and pain limited his function. Muscle strength testing was rated 4/5. There was reduction in muscle strength, which was entirely due to the Veteran’s service-connected left shoulder condition. He did not have muscle atrophy and did not have ankylosis. All specific tests for rotator cuff conditions were positive. There was no shoulder instability, dislocation or labral pathology suspected. The examiner noted that the Veteran had left AC joint arthritis. It did not affect range of motion of the shoulder. There was tenderness on palpation of the left AC joint. Cross-body adduction test was positive. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. The Veteran did not report the use of assistive devices. The examiner indicated that due to the Veteran’s left shoulder condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There was no objective evidence of pain when the left shoulder was used in non-weight bearing. Passive range of motion was the same as active range of motion.

Upon review of the record, the Board finds that a preponderance of the evidence is against a finding that a 30 percent rating is warranted for the Veteran’s left shoulder disability as the Veteran’s range of motion has not more nearly approximated being limited to 25 degrees or less from the side, even when considering pain and functional loss.

The Board acknowledges the lay statements which state that the Veteran was limited in his ability to reach for things during work and that he could not use his left arm well. See July 2020 VA Examination Report
putation with prosthesis. There was no objective evidence of pain when the left shoulder was used in non-weight bearing. Passive range of motion was the same as active range of motion.

The Board acknowledges the lay statements which state that the Veteran was limited in his ability to reach for things during work and that he could not use his left arm well. See July 2020 VA Examination Report. The Board, however, assigns greater probative weight to the objective findings measured on examination as they are more reliable than the rough estimates provided by lay testimony. The prior December 2014 VA examination also noted that functional loss involved difficulty in performing overhead activities and “debilitating pain with [activities of daily living], to include upper body dressing and bathing.

The Board has considered the application of other Diagnostic Codes for shoulder disability. Consideration of DCs 5200, 5202, and 5203 is inappropriate in this case as the Veteran’s shoulder disability does not include the pathology required in the criteria for those DCs (ankylosis of scapulohumeral articulation, humerus impairment, and impairment of the clavicle or scapula). 38 C.F.R. § 4.71a.

Accordingly, a preponderance of the evidence is against the Veteran’s claims seeking increased ratings for the left shoulder disability. As such, the benefit-of-the-doubt doctrine does not apply, and a disability rating in excess of 20 percent for the left shoulder disability is denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Right Thumb

The Veteran’s right thumb disability has been rated as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5228. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27.

The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. The regulations for rating limitation of motion of individual digits under Diagnostic Code 5228 have not changed.

Diagnostic Code 5010 (arthritis due to trauma) instructs the evaluator to rate the disability under Diagnostic Code 5003 (degenerative arthritis). Diagnostic Code 5003 in turn calls for rating under the applicable code for limitation of motion. It is of note, that a compensable evaluation for the Veteran’s right thumb is not warranted under 5003 as only one minor joint is involved. Similarly, an evaluation for painful motion under section 4.59 is not warranted as a major joint is not involved. The Board will turn to the applicable diagnostic codes for limitation of motion of the thumb.

There is no evidence of ankylosis of the right thumb. As such, Diagnostic Codes 5216 through 5227 are not applicable.

Under Diagnostic Code 5228, which applies to limitation of motion of the thumb and assigns a noncompensable rating for a gap of less than one inch (2.5cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is assigned for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. There is no differentiation between the ratings assigned for the major and minor hands under Diagnostic Code 5228.

On VA examination in December 2014, the Veteran reported decreased grip strength in his right hand. He did not report that flare ups impacted the function of the hand. There was no limitation of motion or evidence of painful motion for the thumb. The Veteran was able to perform repetitive-use testing with three repetitions. The Veteran did not have any functional loss or functional impairment of the thumb. There was additional limitation in range of motion of the thumb following repetitive-use testing due to pain on movement of the right thumb. The Veteran did not have tenderness or pain to palpation for joints or soft tissue of either hand, including thumb and fingers. Muscle strength was 4/5 in the right hand. The Veteran did not have ankylosis. He did not report the use of any assistive devices. His right thumb disability did not impact his ability to work. The examiner stated that pain could decrease functional ability during a flare-up or after repetitive use of the right hand. However, the degree of functional/range of motion loss could not be documented without resorting to mere speculation, as these deficits were not demonstrated during the examination.

Pursuant to the May 2020 Board remand, the Veteran underwent VA examination in July 2020. The Veteran reported having difficulty opening and gripping things. He felt like his right thumb was larger than the left. His baseline pain was 6/10 and dull. He reported having flare ups during which he had sharp pain that was a 10/10. They occurred with increased activity and sometimes “it just happens.” The Veteran further reported that it has awakened him in the night and kind of felt like a needle in the hand. The Veteran additionally reported functional loss or functional impairment described as having difficulty opening items, such as jars and soda, and losing grip strength. He stated that it impacted his ability to do his job. The Veteran’s right thumb extension to MCP and IP were both 0 degrees. The max flexion for MCP was 100 degrees, and IP was 90 degrees. The examiner noted no gap between the pad of the thumb and the fingers. There was pain noted on examination but did not result in/cause functional loss. Opposition with thumb exhibited this pain. There was no evidence of pain with use of the hand. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue located on the right first MCP joint that was severe. It was painful to palpation related to arthritis. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Pain caused this functional loss. The examination was not being conducted during a flare up. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups. Pain caused this functional loss. Muscle strength testing was 5/5. The Veteran did not have muscle atrophy. He additionally did not have ankylosis of the right thumb. He did not report the use of any assistive devices. The examiner indicated that due to the Veteran’s right thumb disability, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner further indicated that the Veteran’s right thumb disability did not impact his ability to perform any type of occupational task. There was no objective evidence of pain when the right hand was used in non-weight bearing. Passive range of motion for the right hand was the same as active range of motion.

The Board acknowledges the Veteran’s reported complaints of pain and decreased grip strength. It has considered the findings of DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and relevant regulations. 38 C.F.R. §§ 4.40, 4.45, 4.59. During the applicable period, range of motion (or the functional equivalent) was not limited to a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.

Accordingly, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a compensable rating for the right thumb disability. As the preponderance of
acknowledges the Veteran’s reported complaints of pain and decreased grip strength. It has considered the findings of DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and relevant regulations. 38 C.F.R. §§ 4.40, 4.45, 4.59. During the applicable period, range of motion (or the functional equivalent) was not limited to a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.

Accordingly, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a compensable rating for the right thumb disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board S. Griffith

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.

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