Citation Nr: 0519145 Decision Date: 07/14/05 Archive Date: 07/20/05 DOCKET NO. 03-07 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for rheumatoid arthritis of the hands and shoulders, currently evaluated as 10 percent disabling. 2. Entitlement to an initial rating in excess of 10 percent for rheumatoid arthritis of the cervical spine. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Associate Counsel INTRODUCTION The veteran had active service from October 1954 until September 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. This matter was previously before the Board in November 2004. At that time, a remand was ordered to accomplish additional development. FINDINGS OF FACT 1. The veteran's rheumatoid arthritis of the hands and shoulders is manifested by subjective complaints of pain and stiffness; objectively, there is no evidence of any exacerbations as an active process nor has limitation of motion to a compensable degree been demonstrated. 2. The veteran's rheumatoid arthritis of the cervical spine is manifested by subjective complaints of radiating pain and stiffness; objectively, there is no evidence of any more than slight limitation of motion, with forward flexion limited to no less than 35 degrees and combined range of motion of 275 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 for rheumatoid arthritis of the hands and shoulders have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5002, 5201, 5206, 5207, 5215, 5228, 5229 (2004). 2. The criteria for entitlement to an initial evaluation in excess of 10 for rheumatoid arthritis of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5002, 5290 (as in effect prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). This new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duties to notify and to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). In this regard, VA will inform the appellant of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the appellant provide any evidence in his possession that pertains to the claim. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A. Notice A VA letter issued in November 2003 apprised the appellant of the information and evidence necessary to substantiate his claims. Such correspondence also apprised him as to which information and evidence, if any, that he is to provide, and which information and evidence, if any, VA will attempt to obtain on his behalf. He was also advised to send any evidence in his possession, pertinent to the appeal, to VA. As such, the Board finds that the correspondence satisfied VA's duty to notify the veteran, as required by Quartuccio v. Principi, 16 Vet. App. 183 (2002), 38 U.S.C.A. § 5103, and 38 C.F.R. § 3.159 (2004). It is also noted that a recent case of the United States Court of Appeals for Veterans Claims (Court) held that compliance with 38 U.S.C.A. § 5103 required that the VCAA notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction. See Pelegrini v. Principi, 18 Vet App 112 (2004) (Pelegrini II). However, in the present case, the appellant's claims were initially denied prior to the issuance of appropriate VCAA notice. Because the VCAA notice in this case was not provided to the veteran prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not specify how the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. See Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. April 14, 2005). In reviewing AOJ determinations on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. Further, a claimant is not compelled under 38 U.S.C. § 5108 to proffer new and material evidence simply because an AOJ decision is appealed to the Board. Rather, it is only after a decision of either the AOJ or the Board becomes final that a claimant has to surmount the reopening hurdle. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the veteran was not given prior to the first AOJ adjudication of the claim, the notice was provided by the AOJ prior to the transfer and certification of his case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini II, to decide the appeal would not be prejudicial error to him. The Court in Pelegrini II also held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above, the Board has found that the appellant was provided every opportunity to identify and submit evidence in support of his claim. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any deficiency as to the timing of VCAA notice to the appellant is harmless error. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's reports of VA post service treatment and examination. Additionally, a transcript of the veteran's January 2004 hearing before the undersigned is of record. Finally, the veteran has submitted statements in support of his claim. The Board has carefully reviewed the veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Relevant law and regulations Disability evaluations- in general Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2004). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Finally, an appeal from the initial assignment of a disability rating, such as the veteran's cervical spine claim, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. I. IR- rheumatoid arthritis of the hands and shoulders Factual background In a September 2000 VA outpatient treatment report, the veteran complained of minimal use of the right arm. He also had pain from the left wrist to the left hand. A subsequent October 2000 VA clinical record showed complaints of hand numbness. The veteran was examined by VA in November 2000. At that time, the veteran reported a "popping" from both shoulders with vigorous motion. He denied any pain, weakness, loss of motion, subluxation, episodes of dislocation, or radicular pain involving either shoulder. Regarding his hands, the veteran complained of episodes of numbness involving the middle and ring fingers of both hands. This occurred principally in the morning, and then episodically throughout the day. Such episodes could last for a few hours or could spontaneously resolve. The veteran also reported a weakened grip in both hands. He denied any loss of motion in the fingers, hands, wrists, elbows or shoulders. He also denied skin changes or ulcer formation. He noticed episodes of swelling involving the proximal interphalangeal joints of both hands. He could not state how long such episodes lasted or what caused them. He also reported fevers, but denied chills or sweats. He denied any flare-ups of his shoulder and hand symptoms. The veteran further indicated that his bilateral hand symptoms precluded him from undertaking home building projects. Objectively, the veteran gesticulated with both arms and hands in a normal fashion. He made no complaint when removing his t-shirt. He also easily used the fingers of both hands in a facile fashion as he undid the small clasp on his necklace. Physical examination also revealed full and painless range of motion of the shoulders, elbows, wrists and small joints of the hands and fingers. The upper arms measured 11.25 inches in girth at the mid-biceps and the forearms measured 11 inches in girth at the widest diameter bilaterally. Deep tendon reflexes, the triceps and brachioradialis were normal. Grip strength was 40 in the right hand and 38 in the left, using the Jamar dynamometer. No complaints of hand pain were raised. Regarding the shoulders, there was no wasting of the deltoid muscles. The veteran had abduction and forward flexion of both shoulders from 0 to 108 degrees. He had internal and external rotation from 0 to 90 degrees bilaterally, without pain. There was no palpable click, instability or tenderness to deep palpation about the shoulders or acromioclavicular joints. Examination of both wrists, hands and fingers reveal a normal appearance. There was no tenderness to deep palpation about the wrists, hands and fingers. Both wrists had dorsiflexion from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, radial deviation from 0 to 20 degrees and ulnar deviation from 0 to 45 degrees without pain. Tinel's sign was negative and there was no tenderness over the carpal tunnels. Phalen's test was also negative. Examination of the hands and fingers revealed a normal appearance and skin web pattern. The veteran easily made tight fists with both hands. He brought the tips of his fingers to the distal palmar crease and the tips of his thumb to the little finger metacarpophalangeal joints without difficulty. Sensation of the hands and fingers was normal, including the middle and ring fingers. All flexor and extensor tendons to the tendons were intact. There was no swelling of any of the small joints of the fingers, including the proximal interphalangeal joints. There was no wasting of the small muscles in the hands. X-rays of the right shoulder taken in conjunction with the November 2000 VA examination show an impression of mild to moderate osteoarthritis involving the right acromioclavicular joint. X-rays of both hands were normal. A March 2001 treatment record from Pahrump Medical Center showed complaints of right hand tingling. VA outpatient treatment reports dated in 2001 reflect care for rheumatoid arthritis, which the veteran reported was worsening. A June 2001 report indicated a grip strength of 105 on the right and of 100 on the left. The assessment was intermittent right upper extremity radicular symptoms. He was able to manage all activities of daily living with only slight complaints. In an October 2001 report, the veteran identified the 4th and 5th digits of his left hand, and his entire right hand, as the primary pain sites. The veteran described his pain as continuous and pulsing in the right arm, with tingling in the fingers of his right hand. The intensity of pain was noted to be 4 out of 10. He was instructed to avoid heavy lifting and straining. Additional VA clinical reports dated in October 2001 showed 5/5 grip strength in the upper extremities, with no thenar atrophy. Sensation was intact and reflexes were ++ in all extremities. Tinel's sign, Phalen's sign, and reverse Phalen's sign were all negative. In a November 2001 record, the veteran reported pain traveling from his neck down his right arm. He rated this pain as a 6 out of 10. VA x-rays in November 2001 show minimal degenerative change of the wrists. The bones and the overlying soft tissues were within normal limits bilaterally. A December 2001 VA report indicated a pain rating of 5 out of 10. The pain traveled down the veteran's right arm. He also had numbness of the right hand and fingers. A January 2002 neurological consultation note indicated that nerve conduction studies were performed as to the right median and ulnar nerves. The results showed a normal ulnar nerve. There was mild decreased amplitude of the right median motor nerve. There were also delayed sensory nerve conductions in the right median nerve, with decreased amplitude. There was a slight delay and decreased amplitude in the right ulnar sensory study and delayed latency in the right palmar median nerve. VA outpatient treatment reports dated in 2002 continue to reflect complaints of pain and numbness of the arms and hands. Such records reveal pain assessments of 4 out of 10 (February 2002), 6 out of 10 (May 2002) and 7 out of 10 (August 2002). A May 2002 report indicated that the veteran was taking ibuprofen and gabapentin for pain relief. In August, the veteran discontinued Ibuprofen and instead was instructed to take diclofenac twice daily. An October 2003 VA outpatient treatment report indicates further complaints of tingling in the right arm. The veteran was most recently examined by VA in January 2004. He complained of pain in both hands. He also reported a flare-up on the joints, especially upon awakening. Such flare-ups occurred every day and ranged in intensity from mild-to-moderate to severe. Such episodes lasted for about an hour. Sleeping and immobility seemed to cause the flare- ups, while hot water application relieved the pain. The veteran estimated that he experienced about a 30 percent decrease in range of motion as a result of pain associated with his flare-ups. Objectively, there was minimal fibrosity on the metacarpal phalangeal joints and the proximal interphalangeal joints bilaterally. He had full range of motion of both hands. Thumb flexion was from 0 to 85 degrees with extension of 0 degrees. The metacarpophalangeal joints measured a flexion of 0 to 85 degrees and extension of 0 degrees. The metacarpophalangeal joints of the individual digits had 0 to 85 degrees of flexion. The proximal interphalangeal joints had flexion from 0 to 90 degrees. The distal interphalangeal joints had flexion from 0 to 70 degrees. The veteran was able to make a fist and had +5 grip strength in both hands. He was capable of flexing each hand and passing the proximal crease of the palms. Strength from pushing, pulling and twisting was +5. The dexterity for twisting, probing, handwriting and touching was excellent. The veteran expressed no pain during such maneuvers. There was no other flexion deformity that would interfere with the function of the other fingers. While the veteran had full range of motion, the examiner estimated a decrease of 10 to 20 percent due to pain. Such would occur with carrying of objects weighing over 20 pounds. The veteran would also have fatigue and weakness due to his rheumatoid arthritis. It was noted that he was right-hand dominant. X-rays taken in January 2004 showed minimal degenerative changes involving the interphalangeal joints and the first metacarpal joint. Such changes were most pronounced at the distal interphalangeal joint of the fifth digit. Regarding the shoulders, the veteran complained of bilateral stiffness with pain on and off for several years. His pain was greater in the right shoulder than the left. At rest, right shoulder pain was 5 out of 10 in intensity. With flare-up it rose to 10 out of 10. For the left shoulder, pain was rated as 3 out of 10, and 8 out of 10 during flare- up. The flare-ups were said to occur daily, lasting for about one hour. They were brought on by overhead lifting, prolonged driving and overuse. The veteran also reported locking of the shoulders, greater on the right. The veteran further complained of stiffness and weakness. He denied any swelling, heat, redness, instability, giving way, fatigability or lack of endurance. He also denied episodes of dislocation or recurrent subluxation. He treated his shoulder pain with rest, hot pads and Diclofenac as needed. He was fully capable of performing the activities of daily living, and could drive. He ate, combed his hair and shook with his right hand. Objectively, the shoulder joints were not painful on motion. The veteran had forward flexion of the shoulders from 0 to 170 degrees. He had bilateral shoulder abduction to 170 degrees. Bilateral external rotation was from 0 to 60 degrees and bilateral internal rotation was from 0 to 70 degrees. Bilateral wrist dorsiflexion was from 0 to 55 degrees. Bilateral ulnar flexion was from 0 to 65 degrees. Bilateral radial deviation was from 0 to 18 degrees. Bilateral ulnar deviation was from 0 to 35 degrees. The examiner estimated a 5 to 10 percent decrease of motion of the right shoulder due to flare-up. A 5 percent decrease was estimated as to the left shoulder. Such decrease in motion would be characterized by weakness and fatigue. Pain was identified as the veteran's most prominent symptom. At a personal hearing before the undersigned in January 2004, the veteran explained that his hands were very stiff in the mornings. (Transcript "T" at 3.) He had to massage his hands to limber them up. He also spoke of shoulder limitation with upward movement of his arms. He explained that when he held his arm above his head for any length of time, he almost had to help it back down. The veteran also testified as to shooting pains from his shoulders down into his arms. (T. at 5.) He stated that his arms would feel numb as though he had taken Novacaine. He also experienced numbness in his fingers. Additionally, the veteran reported that even the slightest amount of work around the house creates shoulder pain. (T. at 7.) Analysis The veteran's rheumatoid arthritis is rated under Diagnostic Code 5002. Under this Code section, rheumatoid arthritis, as an active process, warrants a 20 percent evaluation for one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2004). A 40 percent evaluation is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation applies where the evidence demonstrates symptomatology less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year, or a lesser number over prolonged periods. Finally, a 100 percent evaluation is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. Id. Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002, provided that limitation of motion is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5002. In a note, the Rating Schedule provides that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Instead, the higher evaluation is to be assigned. The evidence of record does not support the next-higher 20 percent evaluation for rheumatoid arthritis of the hands and shoulders. Indeed, the medical records do not demonstrate one or two exacerbations of rheumatoid arthritis per year as an active process. Moreover, an increase is not warranted under a limitation of motion Code section. For example, the evidence does not show limitation of the arm motion at shoulder level (as required for a compensable rating under Diagnostic Code 5201), forearm flexion limited to 100 degrees (as required for a compensable rating under Diagnostic Code 5206), forearm extension limited to 45 degrees (as required for a compensable rating under Diagnostic Code 5207), limitation of wrist dorsiflexion to less than 15 degrees (as required for a compensable rating under Diagnostic Code 5215), or limitation of thumb or individual finger motion (as required for a compensable ratings under Diagnostic Codes 5228 and 5229). To the contrary, the veteran had full range of motion of the shoulders, elbows, wrists and small joints of the hands and fingers. Similarly, subsequent VA examination in January 2004 indicated full range of motion of both hands. In assessing the limitation of motion of the hands and shoulders, the Board has considered additional functional limitation due to factors such as pain, weakness, fatigability and pain on motion. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this vein, it is noted that the veteran consistently reported pain in the bilateral hands and shoulders. He stated that his symptoms prevented him from undertaking home building projects. The veteran also reported daily flare-ups of pain, ranging in intensity from mild-to-moderate to severe and lasting about an hour. VA clinical records reveal that the veteran was taking medications such as ibuprofen gabapentin and diclofenac for pain relief. Additionally, with respect to his shoulders, the veteran reported locking, greater on the right. He also complained of stiffness and weakness. The VA examiner in January 2004 estimated a decrease in range of motion of the hands by about 10 to 20 percent due to pain. A 5 percent decrease was estimated as to the left shoulder and a 5 to 10 percent decrease was estimated as to the right shoulder. Pain was said to be the most significant symptom Despite the above, the Board finds that the veteran's disability picture is accurately reflected in his presently assigned 10 percent evaluation for rheumatoid arthritis of the upper extremities. In so finding, the Board notes that upon VA examination in November 2000, the veteran gesticulated with both arms and hands in a normal fashion. He made no complaint when removing his t-shirt. He also easily used the fingers of both hands in a facile fashion as he undid the small clasp on his necklace. Physical examination at that time revealed no pain with range of motion. Additionally, a June 2001 VA treatment report showed that the veteran was able to manage all activities of daily living with only slight complaints. Moreover, a VA outpatient treatment report dated in October 2001 revealed 5/5 grip strength in both hands. Furthermore, upon VA examination in January 2004, the veteran was able to make a fist and again had +5 grip strength in both hands. He was capable of flexing each hand and passing the proximal crease of the palms. Strength from pushing, pulling and twisting was +5. The dexterity for twisting, probing, handwriting and touching was excellent. He expressed no pain during such maneuvers. The examiner could detect no other flexion deformity that would interfere with the function of the other fingers. Finally, the January 2004 VA examination report continued to reflect that the veteran was able to driver and was fully capable of performing the activities of daily living. Regarding the shoulders, upon VA examination in November 2000 and January 2004, the veteran denied any pain, weakness, loss of motion, subluxation, episodes of dislocation, or radicular pain involving either shoulder. Objectively, there was no palpable click, instability or tenderness to deep palpation about the shoulders or acromioclavicular joints. Based on the foregoing, then, significant additional functional limitation in the present case has not been shown such as to warrant an increased rating under any applicable range of motion Diagnostic Codes. Moreover, even if the evidence were favorably construed so as to allow a compensable evaluation for limitation of right shoulder motion ( the joint identified by the VA examiner as being most affected during flare-up) under DeLuca principles, such would not result in a higher evaluation than the 10 percent currently assigned on the basis of x-ray evidence of arthritis of two or more major joint groups. (The two ratings could not be combined, because the current 10 percent evaluation based on x-ray evidence of arthritis of two or more major joint groups is only applicable because limitation of motion of the specific joints is noncompensable. In other words, if the veteran's right shoulder evaluation was increased to 10 percent per DeLuca, such rating would replace the current 10 percent rating, leaving the veteran no better off under the rating schedule than he is at present.) The Board has also considered whether a separate evaluation is warranted for the neurological symptoms associated with the veteran's rheumatoid arthritis. Indeed, the veteran's complaints include numbness and tingling in addition to mechanical pain. The Court has found that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the veteran's favor, and that such signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Further regarding the neurologic complaints, it is noted that except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (2004) [ the evaluation of the same disability under various diagnoses is to be avoided]. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. Here, a January 2002 neurological consultation indicated mild decreased amplitude of the right median motor nerve. There was also delayed sensory nerve conductions in the right median nerve, with decreased amplitude. There was a slight delay and decreased amplitude in the right ulnar sensory study and delayed latency in the right palmar median nerve. Although the January 2002 study shows latent neurological deficit, objective sensory and reflex problems have not been demonstrated upon physical examination of the veteran. Indeed, upon VA examination in November 2000, deep tendon reflexes, the triceps and brachioradialis were normal. Additionally, Tinel's sign and Phalen's test were negative. Moreover, VA clinical reports dated in October 2001 contained findings of intact sensation and ++ reflexes in all extremities. Tinel's sign, Phalen's sign, and reverse Phalen's sign were all negative at that time. Finally, January 2004 VA examination of the cervical spine noted a normal sensory examination. Some muscle atrophy of the left bicep was demonstrated, but this had no impact on strength or motor skill. Based on the above, it is not found that the veteran has neurologic symptoms distinct from that of his rheumatoid arthritis. As such, a separate evaluation for a neurological disability is not appropriate here. In conclusion, the 10 percent evaluation currently assigned under Diagnostic Code 5002 for the veteran's rheumatoid arthritis represents the highest possible rating based on the evidence of record. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2004) is not warranted. II. IR- rheumatoid arthritis of the cervical spine Factual background The veteran was examined by VA in February 1976. At that time, he had no complaints of arthritis of the cervical spine. Objectively, there was full range of motion of the cervical spine. The veteran was again examined by VA in November 2000. He complained of posterior neck pain consisting of episodes of midline, lower neck pain. Such episodes occurred about two or three times per day, lasting for two minutes and then spontaneously relenting. He denied loss of neck motion, headaches or radicular pain. The veteran reported that he took as many as three Advil or aspirin tablets per day to control his neck pain. He denied any flare-ups of neck pain. Objectively, examination of the neck revealed a normal appearance. He had forward flexion of the cervical spine to 45 degrees, and right and left lateral rotation to 80 degrees without any pains when he is distracted. When focused on the motion, he forward flexed to 20 degrees, extended to 30 degrees, and rotated right and left to 45 degrees, stopping suddenly and complaining bitterly of posterior neck pain. There was no muscle spasm. He complained of pain with light palpation about the neck. X-rays taken in conjunction with the November 2000 VA examination revealed a 50 percent narrowing at the C5-6 level and a 25 percent narrowing at the C6-7 intervertebral disc space, with small anterior osteophyte formation from the vertebral at those levels. The impression was mild to moderate osteoarthritic changes. A November 2000 MRI of the cervical spine showed an impression of spondylitic disc narrowing with small bar formations at C5-6 and C6-7. A March 2001 treatment record from Pahrump Medical Center showed complaints of right hand tingling. An April 2001 MRI report from Desert Radiologists revealed an impression of mild degenerative endplate and disc changes of the cervical spine. VA outpatient treatment reports dated in 2001 reflect care for rheumatoid arthritis, which the veteran reported was worsening. A June 2001 VA outpatient treatment report indicated slight to moderate limitation of motion of the cervical spine. He was instructed as to range of motion exercises. It was also noted that the veteran was wearing a cervical spine collar. In a November 2001 report, the veteran rated his pain as a 6 out of 10. The pain traveled from the neck down his right arm. A January 2002 private x-ray report contained an impression of cervical hyperlordosis, degenerative disc disease at C5-6 and cervical spondylosis at C5-6. VA outpatient treatment reports dated in 2002 continue to reflect neck complaints. Such records reveal pain assessments of 4 out of 10 (February 2002), 6 out of 10 (May 2002) and 7 out of 10 (August 2002). VA X-rays taken in October 2003 revealed lower cervical compression fractures, most of which were likely old. There was also moderately severe disc disease and osteoarthritis. The veteran was most recently examined by VA in January 2004. The veteran reported neck pain of 2-3/10 at rest. With flare-up his pain was rated as 5/10. Flare-ups were caused by laying flat for a prolonged period of time. Stretching was an alleviating factor. The veteran estimated an additional 10 to 30 percent loss of range of neck motion due to flare-up. The veteran complained of neck stiffness on waking. He further complained of weakness. The location and distribution of the neck pain was in the inferior cervical # 7 vertebrae. Such pain lasted less than 24 hours and was described as more dull than sharp. Such pain was mild-to- moderate to severe in intensity. The veteran also complained of numbness on his mid forearms and in his fingers from the thumb to the index and the middle finger, as well as the medial side of the ring finger in both hands. Regarding functional limitations, the veteran could walk 1 to 2 miles every day and stand for 45 minutes. The veteran was fully mobile and capable of performing all activities of daily living. Upon physical examination, inspection of the spine was within normal limits. The right biceps was 34 cm in circumference while the left was 31. Posture and gait were intact, position of the head was straight and curvature of the spine was normal. The veteran's head was symmetrical in appearance and he had symmetry and rhythm of spinal motion. The veteran's range of motion of the cervical spine was as follows: forward flexion from 0 to 35 degrees; extension from 0 to 40 degrees; left lateral flexion from 0 to 40 degrees; right lateral flexion from 0 to 35 degrees; left lateral rotation from 0 to 60 degrees; right lateral rotation from 0 to 65 degrees. There was no pain on motion. There was also no objective evidence of spasms, weakness or tenderness. There were no postural abnormalities or fixed deformities. The musculature of the cervical spine was normal. There was no unfavorable ankylosis. During a flare-up, there would be an additional 5 to 10 percent decrease in range of motion due to pain, fatigue and weakness. The most prominent symptom was pain. Neurologically, no sensory deficits were found. On motor examination, there was some atrophy of the left biceps. The tone was good and strength was intact to about +5. Deep tendon and cutaneous reflexes were within normal limits. Lasegue's sign was negative for pain. Following the objective examination and a review of x-ray evidence, the VA examiner commented that the veteran's cervical spine findings were more consistent with traumatic arthritis rather than rheumatoid arthritis. Such was consistent with the veteran's history of falling in a ditch while serving in Vietnam. In January 2004, the veteran provided testimony as to his cervical spine disability at a hearing before the undersigned. He stated that he used hot pads and cold compresses to alleviate his neck pain. (T. at 5.) He also needed a special pill to help him sleep, since his neck pain would otherwise keep him awake. (T. at 6.) He also attested as to loss of motion and muscle spasms of the cervical spine. Analysis The veteran's rheumatoid arthritis is rated under Diagnostic Code 5002. Under this Code section, rheumatoid arthritis, as an active process, warrants a 20 percent evaluation for one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2004). A 40 percent evaluation is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation applies where the evidence demonstrates symptomatology less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year, or a lesser number over prolonged periods. Finally, a 100 percent evaluation is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. Id. Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002, provided that limitation of motion is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5002. In a note, the Rating Schedule provides that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Instead, the higher evaluation is to be assigned. The evidence of record does not support the next-higher 20 percent evaluation for rheumatoid arthritis of the cervical spine for any part of the claims period. Indeed, the medical records do not demonstrate one or two exacerbations of rheumatoid arthritis per year as an active process. Moreover, an increase is not warranted under a limitation of motion Code section. In this regard, it is noted that there was a change in the law with respect to disabilities of the spine, effective September 26, 2003. Prior to that date, Diagnostic Code 5290 afforded a 10 percent rating for slight limitation of the cervical spine. A 20 percent rating applied for moderate limitation and a 30 percent rating applied for severe limitation. As of September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral fracture with loss of 50 percent or more of height. A 20 percent rating is warranted where the evidence shows forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation applies where the evidence demonstrates forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine. Here, range of motion findings for the cervical spine are consistent with slight limitation under Diagnostic Code 5290, as it existed prior to September 26, 2003. Such findings are also consistent with the 10 percent rating under the newly drafted General Rating Formula for Diseases and Injuries of the Spine, effective September 26, 2003. Indeed, at no time has the veteran's cervical forward flexion been worse than 35 degrees. Additionally, combined range of motion for the cervical spine was 275 in January 2004 and has never been shown to be worse than this. (Earlier examination in November 2004 did not include lateral flexion findings, but forward flexion, left rotation and right rotation were all greater at that time when the veteran was not focused on his discomfort. This suggests that his combined range of motion would have been even higher at that time, had lateral flexion been recorded.) The objective evidence of record also fails to demonstrate muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. To the contrary, upon VA examination in November 2000, the cervical spine had a normal appearance. Moreover, upon VA examination in January 2004, posture and gait were intact, position of the head was straight and curvature of the spine was normal. The veteran's head was symmetrical in appearance and he had symmetry and rhythm of spinal motion. Based on the foregoing then, the veteran is not entitled to an increased evaluation for his rheumatoid arthritis of the cervical spine for any portion of the claims period. Moreover, in reaching this conclusion, the Board has considered additional functional limitation due to factors such as pain, weakness, fatigability and pain on motion. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this vein, it is noted that since his November 2000 VA examination, the veteran consistently reported neck pain, stiffness and weakness, with radicular symptoms traveling into his right arm. Such subjective reports of pain will be further detailed below. At the time of his November 2000 VA examination, the veteran reported that he took as many as three Advil or aspirin tablets per day to control his neck pain. At that time, he complained of pain with bilateral rotation of the neck and also reported pain with light palpation about the neck. A June 2001 VA outpatient treatment report indicated that the veteran was wearing a cervical spine collar. In a November 2001 report, the veteran rated his cervical spine pain as a 6 out of 10. That pain rating was again reported in May 2002, followed by a report of pain at an intensity of 7 out of 10 in August 2002. Upon VA examination in January 2004, the veteran described flare-ups precipitated by laying flat for a prolonged period of time. Despite the facts detailed above, the Board finds that, over the entirety of the appeals period, the veteran's disability picture is accurately reflected in his presently assigned 10 percent evaluation for rheumatoid arthritis of the cervical spine. Indeed, upon VA examination in November 2000, the veteran denied loss of neck motion, headaches or radicular pain. He also denied any flare-ups of neck pain, though a November 2001 treatment report shows radicular complaints as to the right arm. Finally, on VA examination in January 2004, the veteran reported that he could walk 1 to 2 miles every day and stand for 45 minutes. He was noted to be fully mobile and capable of performing all activities of daily living. Objectively, his posture and gait were intact. Thus, DeLuca considerations do not justify an increased rating based on the facts of record. It is observed that the VA examiner in January 2004 expressed his opinion that the veteran's cervical spine disability was more consistent with traumatic arthritis than rheumatoid arthritis. As such, the Board has also considered whether a rating under Diagnostic Code 5010 provides a higher evaluation. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2002). Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002), degenerative arthritis is rated based on limitation of motion of the affected joint. As previously discussed, a higher rating is not warranted on the basis of limitation of motion. Therefore, even if the veteran's cervical spine disability is classified as traumatic arthritis as opposed to rheumatoid arthritis, an increased rating is not for application. The Board has also considered whether a separate evaluation is warranted for the neurological symptoms associated with the veteran's rheumatoid arthritis of the cervical spine. Indeed, the veteran's complaints include numbness and tingling in addition to mechanical pain. The Court has found that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the veteran's favor, and that such signs and symptoms be attributed to the service- connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Further regarding the neurologic complaints, it is noted that except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (2004) [ the evaluation of the same disability under various diagnoses is to be avoided]. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. Here, a January 2002 neurological consultation indicated mild decreased amplitude of the right median motor nerve. There were also delayed sensory nerve conductions in the right median nerve, with decreased amplitude. There was a slight delay and decreased amplitude in the right ulnar sensory study and delayed latency in the right palmar median nerve. Although the January 2002 study shows latent neurological deficit, objective sensory and reflex problems have not been demonstrated upon physical examination of the veteran. Indeed, upon VA examination in November 2000, deep tendon reflexes, the triceps and brachioradialis were normal. Additionally, Tinel's sign and Phalen's test were negative. Moreover, VA clinical reports dated in October 2001 contained findings of intact sensation and ++ reflexes in all extremities. Tinel's sign, Phalen's sign, and reverse Phalen's sign were all negative at that time. Finally, January 2004 VA examination of the cervical spine noted a normal sensory examination. Some muscle atrophy of the left bicep was demonstrated, but this had no impact on strength or motor skill. Based on the above, it is not found that the veteran has neurologic symptoms distinct from that of his rheumatoid arthritis. As such, a separate evaluation for a neurological disability is not appropriate here. In conclusion, the 10 percent evaluation currently assigned under Diagnostic Code 5002 for the veteran's rheumatoid arthritis of the cervical spine represents the highest possible rating based on the evidence of record. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2004) is not warranted. ORDER Entitlement to an increased rating for rheumatoid arthritis of the hands and shoulders, currently evaluated as 10 percent disabling, is denied. Entitlement to an initial rating in excess of 10 percent for rheumatoid arthritis of the cervical spine is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs