Citation Nr: 1323887 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-19 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 40 percent for service-connected palindromic rheumatism. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to January 1970. This matter comes before the Board of Veteran' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2010. A hearing transcript is associated with the claims file. In April 2011, the Board remanded the case for further evidentiary development. During remand status in July 2012, the Appeal Management Center (AMC) granted service connection for degenerative arthritis of the knees and bursitis of the hips. Disability evaluations and effective dates for those awards were assigned. The AMC notified the Veteran of this favorable action in a letter dated in August 2012. As the Veteran has not appealed the disability evaluation or effective dates assigned as to these disabilities, the Board finds there is no present controversy for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Veteran has raised a claim for service connection for hammer toes. See Substantive Appeal (April 2009). This issue has not been developed or adjudicated by the originating agency and is, therefore, REFERRED to the agency of original jurisdiction for appropriate action. FINDING OF FACT Throughout the appeal period, the Veteran's palindromic rheumatism was manifested symptoms productive of definite impairment of health, but without 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 a prolonged period. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 40 percent for palindromic rheumatism have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied its duty to notify. The record reflects that VA sent to the Veteran all required notice in a February 2008 letter, prior to the rating decision on appeal. Furthermore, VA supplemented this notice with a letter dated in August 2008 notifying the Veteran of the scheduler criteria for increase. VA also satisfied its duty to assist the Veteran in regard to the claim on appeal. VA obtained all relevant treatment records identified by the Veteran and associated these records with the claims file. VA afforded the Veteran appropriate VA medical examinations. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. The Board previously remanded the claim in April 2011 to ensure that VA met its duty to assist the Veteran. The Board requested that the RO/Appeals Management Center obtain updated VA treatment records and an adequate VA examination. The requested actions were completed. The Board has reviewed the March 2012 VA examination and April 2012 addendum to that examination report; the Board finds that they are adequate for rating purposes in they described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Therefore, the Board concludes that there has been substantial compliance with the directives contained in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Lastly, VA afforded the Veteran a hearing on appeal. In March 2010, the Veteran along with his brother testified before the undersigned VLJ. At that time, the VLJ held the record open for an additional 60 days for the submission of evidence. Having carefully reviewed the hearing transcript, the Board finds substantial compliance with 38 C.F.R. § 3.103(c). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, testimony was elicited in order to substantiate the claim for a higher rating. The Veteran was assisted at the hearing by his representative. Testimony was obtained as to the severity of the Veteran's disorder during the appeal period. Based on testimony indicating recent pertinent treatment, the appeal was later remanded by the Board. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. The Veteran and his brother gave significant testimony in regard to the existence of severe incapacitating exacerbations. Therefore, the Board finds substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board will address the merits of the claim. II. Claims for Increase The Veteran seeks an increased disability evaluation for service-connected palindromic rheumatism, currently rated as 40 percent disabling. The Veteran and his brother testified that the criteria for a higher disability evaluation were met. Specifically, both witnesses indicated that the Veteran had incapacitating exacerbations of his rheumatoid arthritis. The Veteran stated that he was incapacitated all the time and had "other severe incapacitations." The Veteran's brother indicated that he had helped the Veteran with snow shoveling or mowing grass on a couple occasions due to the Veteran's incapacitation. The Veteran further testified that he lives alone, attends to the activities of daily living, cuts his own lawn when able to do so, prepares meals, takes care of his dog, and has morning coffee at McDonald's restaurant when he is able to do so. The Veteran testified that he retired from a supervisory position with the US Postal Service 5-6 years earlier due in part to his rheumatoid arthritis disability. In his claim for increase dated in August 2007, the Veteran reported arthritis symptoms of the knees and feet worsened since his original award, constant pain and stiffness of the hands and hips, and limitation of physical activity to 2-3 hours a day. He reported problems with manipulation and grasp using his hands. In August 2008, the Veteran reported constant pain in both hands, an inability to use hands for any prolonged duration, pain and stiffness of the left hip and knees, and limitation of physical activities to 1 hour. In his April 2009 substantive appeal, the Veteran reported pain, stiffness, and swelling of the knees-continuous since 1999; continuous hip pain since 2006; and continuous pain in the thumbs and hands. He reported that he treats with Naproxym that helps but does not relieve pain; inability to bend ring finger of right hand to pad; hammertoes; and limited activity. He reported 3-4 exacerbations a year. In a letter dated January 2010, G.T. (Veteran's brother) described the Veteran's history of rheumatoid arthritis from 1970 through the 1990. He noted that he has lived in proximity to the Veteran since 2006, sees him nearly daily, and noticed his hip problems-such that he could not use a recently purchased exercise bike. He stated that the Veteran further had pain and stiffness of the hips, hands, and right arm, which have greatly restricted his activity. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability 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 be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Diagnostic Code 5002 provides that rheumatoid (atrophic) arthritis will be rated based either as an active process or on the basis of chronic residuals, and the higher rating will be assigned. Ratings for rheumatoid arthritis as an active process will not be combined with the residual ratings for limitation of motion or ankylosis. Under Diagnostic Code 5002, rheumatoid arthritis as an active process is to be rated 20 percent for one or two exacerbations a year in a well-established diagnosis; 40 percent for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; 60 percent for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and a 100 percent rating for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2012). Under Diagnostic Code 5002, chronic residuals such as limitation of motion or favorable or unfavorable ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. Where the limitation of motion of the specific joint or joints involved is noncompensable (0 percent) under the diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Such ratings of chronic residuals under Diagnostic Code 5002 are to be combined, not added. Id. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009, Note. Analysis Having carefully reviewed the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for service-connected palindromic rheumatism. Throughout the appeal period, the Veteran's palindromic rheumatism was manifested symptoms productive of definite impairment of health, but without 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 a prolonged period. The manifestations of palindromic rheumatism do not more closely resemble the criteria for the next higher evaluation. 38 C.F.R. § 4.7. It is noted that the Veteran's complaints of pain associated with the knees and hips have been separately rated from his service-connected palindromic rheumatism, and these ratings are not on appeal before the Board as explained in the introduction above. Report of VA examination dated in September 2007 reflects complaints of worsening joint symptoms associated with rheumatoid arthritis. He used no assistive devices for walking. There were constitutional symptoms of arthritis, described as "fatigue." He reported functional limitations on standing and walking. Gait was antalgic. There was no weight bearing abnormality. The Veteran reported flare-ups every 2-3 weeks lasting for 1-2 days of moderate severity. Physical examination was conducted. Report of VA examination dated in December 2007 reflects complaints of bilateral hip and knee pain and stiffness. He used no assistive devices for walking. There were constitutional symptoms of arthritis, described as "fatigue occurring occasionally, twice a week." There were no incapacitating episodes of arthritis. Functional limitations were described as inability to stand more than 15-30 minutes, or walk more than 1 mile. The Veteran's gait was normal and there was no evidence of abnormal weight bearing. The diagnosis was seronegative rheumatoid arthritis. The Veteran was not employed. It was noted that his disability had a mild to moderate effect on chores, shopping, exercise, recreation, and travel. VA treatment records dated August 2007 to June 2008 reflects degenerative joint disease and osteoarthritis of the knee and hands on the problem list. By history, the Veteran had rheumatoid arthritis and Reiter's syndrome, treated with Ibuprofen, but he had not seen a rheumatologist. Weight was recorded as 244 pounds and it was noted that there had not been a significant weight change in the last 6 months. Report of VA examination dated in October 2008 reflects complaints of significant inflammatory symptoms that last for weeks to almost a year, and in between he had no particular symptoms. He reported that, during flare-ups, he noticed that problems would gradually worsen, get severe, and then start improving. The joints involved were the knees, hips, feet, and hands. He reported occasional swelling, migrating pain symptoms, and stiffness. Pain is worsened with prolonged sitting or standing. Physical exam was conducted. The impression was prior history of seronegative rheumatoid arthritis/Reiter's syndrome. The examiner stated that "at the present time, the patient has no clinical, physical, radiographic or serologic findings to suggest ongoing or significant rheumatoid arthritis." The examiner further stated that "the patient has no evidence of continuing Reiter's syndrome." The examiner opined that the Veteran's history suggested the presence of palindromic rheumatism given that he had episodes of significant symptoms of inflammation with some swelling that would last from weeks to months, and then would enter a quiescent period of having almost no musculoskeletal symptoms. VA treatment records dated in October 2008 reflects that he was prescribed Naproxen twice daily for arthritis/joint pain. It was noted that the Veteran was feeling well but his arthritic pain had "been very bad since last visit." On exam, the examiner noted that the Veteran appeared healthy and was not in acute distress. Gait was described as steady. Weight was 262 pounds. The impression was diffuse arthralgias and obesity. He was advised on medications, diet, exercise, and weight control. Report of VA examination dated in November 2008 reflects physical examination along with laboratory and x-ray data. The examiner stated that "at the present time, the patient has no clinical, physical, radiographic or serologic findings to suggest ongoing or significant rheumatoid arthritis." VA treatment records show that the Veteran's weight was 272 pounds in December 2009. A December 2009 note reflects complaints of chronic daily pain treated with Naprosyn routinely. VA treatment records dated 2009 and 2011 reflect follow-up care by the rheumatology clinic. A January 2010 note reflects that his dosage of Naprosyn was increased. A December 2010 note reflects that lab chemistry and hematology results were normal. Private treatment records dated in 2010 show that the Veteran presented for rheumatologic evaluation. Symptoms involved the right foot, knees, and thumbs. Comprehensive history was recorded. His weight was 254 pounds. Physical examination was performed. The assessment was gouty arthritis, positive synovial fluid analysis for intracellular uric acid crystal, right ankle; joint effusion, right ankle; joint pain, right ankle; osteoarthritis of multiple sites (right foot, knees, and hips). Reports of VA examination dated in March 2012 and April 2012 reflect evaluation of symptoms involving the spine, hips, and knees related to palindromic rheumatism. The reports were silent for weight loss and anemia productive of severe impairment of health, or other indicia of severe impairment of health or severely incapacitating exacerbations. The medical evidence shows that the Veteran's disability is manifested by symptoms productive of definite impairment of health, but without 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 a prolonged period. The Board has considered the statements and sworn testimony of the Veteran and his brother. To the extent that the lay evidence avers that the Veteran has severely incapacitating exacerbations occurring 4 or more times a year of a lesser number over a prolonged period, the Board finds otherwise. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009, Note. Here, neither the lay nor the medical evidence reflects prescribed bed rest and treatment by a physician or healthcare provider. The Board has considered 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), along with the Veteran's subjective complaints of pain. However, neither the lay nor the medical evidence shows additional disability beyond that contemplated by the current 40 percent disability evaluation for palindromic rheumatism and the Veteran's symptoms involving the knees and hips are separately rated with consideration of the DeLuca factors. While the Veteran is competent to describe his symptoms, whether a disability has meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned. The Board assigns greater probative value to the medical evidence of record which shows no signs of weight loss or anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over a prolonged period. The medical findings are highly probative as these were prepared by skilled, neutral medical professionals after interview of the Veteran and physical examination. The Board finds that a higher evaluation is furthermore not available under any other potentially applicable provision. As indicated in the introduction above, the Veteran has been awarded a separate evaluation for the knees and hips as disabilities secondary to palindromic rheumatism. There is no appeal of the assigned disability evaluations or effective dates as to these awards. Accordingly, the claim is denied and there is no basis for a staged rating. See Hart, supra. The Veteran met the criteria for a higher evaluation at no time during the appeal period. As the evidence of record is not in equipoise, there is no doubt to resolve. Gilbert, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. Also, there is no indication of frequent periods of hospitalization or interference with employment-the Veteran is retired, is able to live alone, and is capable of attending to his dog. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An evaluation in excess of 40 percent for service-connected palindromic rheumatism is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs