Citation Nr: 0524728 Decision Date: 09/12/05 Archive Date: 09/21/05 DOCKET NO. 03-29 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for arthritis of the cervical spine. 2. Entitlement to service connection for arthritis of the right arm and shoulder. 3. Entitlement to service connection for arthritis of the left arm and shoulder. 4. Entitlement to service connection for arthritis of the right hip. 5. Entitlement to service connection for arthritis of the left hip. 6. Entitlement to service connection for arthritis of the right knee. 7. Entitlement to service connection for arthritis of the left knee. 8. Entitlement to service connection for arthritis of the right foot. 9. Entitlement to service connection for arthritis of the left foot. 10. Entitlement to service connection for right upper extremity peripheral neuropathy. 11. Entitlement to service connection for left upper extremity peripheral neuropathy. 12. Entitlement to service connection for right lower extremity peripheral neuropathy. 13. Entitlement to service connection for left lower extremity peripheral neuropathy. 14. Entitlement to an increased rating for lumbosacral strain with spasm, rated 20 percent disabling. 15. Entitlement to a compensable rating for arthritis of the fingers. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and son ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had honorable active service from November 1964 to January 1985. This appeal arises from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied increased ratings for lumbosacral strain with spasm, rated 20 percent, and for arthritis of the fingers, rated noncompensable. This appeal also arises from an October 2002 RO rating decision that, in pertinent part, denied entitlement to service connection for arthritis of the neck, shoulders or arms, chest, legs, knees, and feet, and denied entitlement to service connection for peripheral neuropathy of the upper and lower extremities. The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. In pertinent part of a February 2004 rating decision, the RO denied entitlement to a total disability rating for compensation purposes based on individual unemployability (hereinafter referred to as TDIU). In July 2004, the veteran stated he disagreed with that decision. It is clear that the veteran's statement was a notice of disagreement (NOD); however, the issue has not been addressed in a statement of the case (SOC). Entitlement to TDIU is therefore addressed in the REMAND portion of the decision. In July 2004, the veteran wrote that he wanted to withdrew appeals as to his claims of service connection for arthritis of the knees, feet, and chest; however, in May 2005, the veteran wrote that he did not intend to withdraw the appeals with regard to his claims for service connection for arthritis of the feet and knees. The issues of entitlement to service connection for arthritis of the neck, shoulders or arms, legs or hips, knees, and feet, entitlement to service connection for peripheral neuropathy of the upper and lower extremities, and entitlement to TDIU are addressed in the REMAND portion of the decision below. These issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT The service connected arthritis of the fingers is manifested by complaints of pain without X-ray evidence of arthritis. CONCLUSION OF LAW The criteria for a compensable rating for arthritis of the fingers are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA redefined VA's duty to assist and enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)) (2004). Under the VCAA, VA has a duty to tell a claimant what evidence is needed to substantiate a claim, what evidence the claimant is responsible for obtaining and what evidence VA will undertake to obtain. 38 U.S.C.A. § 5103(a) (West 2002). VA has also undertaken to tell claimants to submit relevant evidence in their possession. 38 C.F.R. § 3.159(b) (2004). VA notified the veteran of the evidence needed to substantiate his claim for an increased rating for arthritis of the fingers by means of a rating decision, a SOC, supplemental statements of the case (SSOCs), and sent a notice letter to the veteran in October 2001. These documents provide notice of the law and governing regulations as well as reasons for the RO's decisions. These discussions served to inform him of the evidence needed to substantiate the claim. The October 2001 letter told the veteran that his assistance was needed to obtain Charleston Naval Hospital reports. In May 2005, the veteran submitted Charleston Naval Hospital reports. The veteran was furnished with letters in June 2002 and August 2003, pertaining to issues that are not the subject of this decision. Those letters did, however, advise the veteran of the types of evidence he was responsible for providing, and the types of evidence VA would undertake to obtain. The veteran has submitted evidence in support of his claim, and has offered testimony as to the evidence he intended to submit. He thus evinced actual knowledge that he should submit relevant information or evidence in his possession. 38 C.F.R. § 3.159(b). The notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) should generally be provided prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Failure to provide VCAA notice prior to the initial adjudication is, however, generally not prejudicial to a claimant. Mayfield v. Principi, 19 Vet. App. 103, 123-4 (2005). The veteran has not been prejudiced by the delayed notice in this case, because he had the opportunity to have his claim adjudicated on a de novo basis by the RO prior to its transfer to the Board. VA has met its duty to assist in obtaining any relevant evidence available to substantiate the claim. VA examination reports are associated with the claims file. All private medical evidence has been accounted for and the veteran's representative has submitted written argument requesting an increased rating for arthritis, which is granted in this appeal. Background The veteran's service medical records (SMRs) reflect complaints of bilateral hand pain. The veteran was stationed in a cold climate at the time. Osteoarthritis vs. arthralgia was suspected in April 1983. A separation examination report notes arthritis of the fingers of both hands. In March 1985, the RO granted service connection for arthritis of the fingers of both hands and assigned a noncompensable rating under Diagnostic Code 5003. A May 1987 VA examination report notes that the finger joints were painful, usually in cold weather; however, no current disability was found. The veteran requested an increased rating for arthritis of the hands in July 2001. An August 2001, VA compensation examination report reflects that the veteran took Vioxx(r) for pain and inflammation. The examiner noted that the veteran was right-handed and that he reportedly could not pinch objects with the fingers. Lifting more than 10 pounds or holding a steering wheel longer than 15 minutes was painful, although Vioxx(r) helped somewhat. The examiner felt that the hands and wrists had normal strength and excursion. X-rays were negative, but electromyography showed bilateral carpal tunnel syndrome. No relevant diagnosis was offered. The veteran underwent a VA orthopedic compensation examination in July 2002, during which he reported that elevating the hands for 30 minutes caused numbness and that gripping a steering wheel was painful. The metacarpal joints, DIP joints, and PIP joints of the long finger of each hand were especially painful. The veteran worked in a mailroom and was able to do his job with pain. The examiner found all joints of the hands to have full range of motion and the hands and fingers had full strength, but all metacarpal phalangeal, PIP, and DIP joints were tender. X-rays were negative. The diagnoses were carpal tunnel syndrome; hand complaints consistent with osteoarthritis and normal X-ray studies. The veteran underwent a VA peripheral nerves compensation examination in September 2003, during which he reported that he had quit his job in June 2003 because he was unable to carry objects. He currently used Celebrex(r), Motrin(r), and Percocet(r). He complained of pain in the knuckles and wrists that precluded opening jars, driving for more than 30 minutes, using tools, or carrying heavy objects. Each morning, his hands and fingers were stiff and severely painful for an hour or longer. The examiner found that palmar flexion at the wrists was reduced to 60 degrees but ranges of motion of the finger joints were normal, albeit with complaints of significant pain at each joint. Strength was 5/5 in all fingers. The thumbs opposed the fingers normally. The impression was bilateral hand pain with no evidence of degenerative arthritis on X-rays. In July 2004, the veteran testified before an RO hearing officer that he had occasional swelling of the hands. He testified that driving was difficult as was opening a jar or pushing a lawn mower. Making a fist was painful. In May 2005, the veteran testified at a videoconference hearing before the undersigned that he had no additional information concerning arthritis of the hands. In May 2005, Luis Insignares, M.D., reported that the veteran had degenerative arthritis of multiple joints, including the hands and fingers. The doctor related upper extremity weakness and paresthesia to cervical arthritis. The physician reported no diagnostic studies showing arthritis of the hands. Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2004). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995); 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Current findings take precedence over past findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 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 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 (2004). As regards the joints, the factors of disability reside in reductions of their normal excursions of movement in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints; multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (2004). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2004). Arthritis of the finger joints is rated under Diagnostic Code 5003, which requires for a compensable rating, that there be X-ray evidence of the arthritis. The medical evidence shows that there is no X-ray evidence of degenerative arthritis. Because there is no X-ray evidence, the preponderance of the evidence is against the grant of a compensable rating. Pain can serve as objective evidence of limitation of motion, but Diagnostic Code requires that there also be X-ray evidence of arthritis. Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In view of the number of atypical cases, it is not expected that all cases will show all findings specified in the rating schedule. 38 C.F.R. § 4.21 (2004). In this case, however, not only has there been no X-ray evidence of arthritis, but there has been little objective evidence of limitation of motion with some examiners concluding that there was no such evidence. The reports of pain without either X-ray evidence or other objective evidence of limitation of motion, does not show that the veteran has most of the findings needed for a compensable rating under Diagnostic Code 5003. Gary A. Fink, M.D., wrote in July 1998, that some of the veteran's symptoms in joints other than the fingers might be attributable to fibromyalgia. Because Dr. Fink did not attribute disability in the fingers to fibromyalgia, and the veteran has not been service connected for fibromyalgia, the Board cannot award a compensable rating on the basis of that disease. The provisions of 38 C.F.R. § 3.321(b) (2004) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, an extra-schedular evaluation will be assigned. An extraschedular claim for TDIU has been addressed in the remand below. The veteran's finger arthritis has not required any periods of hospitalization, and thus does not require frequent periods of hospitalization. He is not currently employed; therefore, the disability does not cause marked interference with any current employment. ORDER An increased (compensable) rating for arthritis of the fingers is denied. REMAND Under the VCAA, VA is obliged to provide an examination or obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran has testified that he has had pain in the claimed joints and extremities since service. His testimony serves to trigger VA's duty to afford him examinations or obtain opinions. Duenas v. Principi, 18 Vet. App. 512 (2004). Such examinations are needed to determine whether he has any current disability as the result of a disease or injury in service. Because the rating to be assigned for lumbosacral strain is inextricably intertwined with the issues of service connection for lower extremity neuropathy, the issue of a higher rating for lumbosacral strain must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Board is required to remand the claim for TDIU so that an SOC can be issued in response to the NOD. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); VAOPGCPREC 16-92. Accordingly, this case is remanded to the RO or AMC for the following action: 1. The RO or AMC should send the claims file to an appropriate physician to address the nature and etiology of arthritis of multiple joints. The physician should do the following: I. Note a review of the claims file in the report. II. Address whether it is at least as likely as not (50 percent or greater probability) that arthritis of the cervical spine, arms, hips, knees, or feet; or peripheral neuropathy, had their onset in service, within one year of service, or is otherwise related to a disease or injury in service. III. If systemic arthritis, or fibromyalgia is found, the physician is asked to determine whether it at least as likely as not (50 percent or greater probability) began during active service, within a year of service separation, or is otherwise related to a disease or injury in service. The physician should offer a rationale for the opinions. The veteran should be reexamined if deemed necessary. 2. Following the above, the RO or AMC should re-adjudicate the claims on appeal. If any such benefit is not granted, an SSOC should be issued. The claims should be returned to the Board if otherwise in order. 3. An SOC addressing TDIU should be issued. This issue should be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. The veteran need take no further action until he is so informed. He 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A §§ 5109B, 7112. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs