Citation Nr: 1334383	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-01 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a compensable rating for rheumatoid arthritis of multiple joints prior to February 5, 2010.

2.  Entitlement to an increased rating for rheumatoid arthritis of the left shoulder, evaluated as 20 percent disabling from February 5, 2010 through March 1, 2010, and 10 percent disabling from March 2, 2010.  

3.  Entitlement to an increased rating for rheumatoid arthritis of the right wrist, evaluated as 10 percent disabling from September 17, 2012.

4.  Entitlement to an increased rating for rheumatoid arthritis of the left wrist, evaluated as 10 percent disabling from September 17, 2012.

5.  Entitlement to an increased rating for rheumatoid arthritis of the left thumb, index finger, and long finger, evaluated as 10 percent disabling from September 17, 2012.

6.  Entitlement to an increased rating for rheumatoid arthritis of the left hand with limitation of motion of the thumb, index finger, long finger, and little finger, evaluated as 10 percent disabling from September 17, 2012.

7.  Entitlement to a compensable rating for rheumatoid arthritis of the left ring finger from September 17, 2012.

8.  Entitlement to a compensable rating for rheumatoid arthritis of the right little finger from September 17, 2012.

9.  Entitlement to an increased rating for impairment of the right hip/thigh associated with rheumatoid arthritis, evaluated as 20 percent disabling from September 17, 2012.

10.  Entitlement to an increased rating for limitation of extension of the right thigh associated with rheumatoid arthritis, evaluated as 10 percent disabling from September 17, 2012.

11.  Entitlement to a compensable rating for limitation of flexion of the right hip associated with rheumatoid arthritis from September 17, 2012.

12.  Entitlement to an increased rating for impairment of the left hip/thigh associated with rheumatoid arthritis, evaluated as 20 percent disabling from September 17, 2012.

13.  Entitlement to a compensable rating for limitation of flexion of the left hip associated with rheumatoid arthritis from September 17, 2012.

14.  Entitlement to a separate compensable rating for limitation of flexion of the right knee associated with rheumatoid arthritis from September 17, 2012.

15.  Entitlement to an increased rating for rheumatoid arthritis of the left knee, evaluated as 10 percent disabling from September 17, 2012.

16.  Entitlement to a separate compensable rating for rheumatoid arthritis of the elbows.

ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from September 1989 to September 1992.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which continued a 10 percent evaluation for residuals of a right knee injury and a noncompensable rating for rheumatoid arthritis of multiple joints.  

In August 2012, the Board denied a disability rating in excess of 10 percent for residuals of a right knee injury and remanded the issue of entitlement to a compensable rating for rheumatoid arthritis of multiple joints for additional development.  The case has been returned to the Board for appellate consideration.

In an April 2013 rating decision, the Agency of Original Jurisdiction (AOJ) assigned separate evaluations for rheumatoid arthritis of the left shoulder, effective February 5, 2010; and for the wrists, hands, hips/thighs, and left knee, effective September 17, 2012.  As the Veteran is presumed to be seeking the maximum available benefit, the claim for an increased rating for rheumatoid arthritis and each affected joint (as characterized on the title page) remains on appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In September 2012, the Veteran submitted additional claims of entitlement to service connection for a gastrointestinal bleed and iron deficiency anemia, for gastritis, and for soft tissue disorders of the shoulders and feet (tendinitis, bursitis, and plantar fasciitis).  In July 2013, she also submitted a claim of entitlement to service connection for a neck disability.  She claims that each of these conditions is secondary to her service-connected rheumatoid arthritis.  In July 2013, she also submitted additional evidence related to these claims along with a waiver of initial consideration by the AOJ for this evidence.  See 38 C.F.R. § 20.1304(c) (2013).  However, because these issues have not been adjudicated by the AOJ, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.  

The issue of entitlement to a separate compensable rating for rheumatoid arthritis of the elbows is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Pertinent to the August 2008 claim for increase, but prior to February 5, 2010, the Veteran's rheumatoid arthritis of the multiple joints was manifested by one or two exacerbations a year in a well-established diagnosis.  

2.  From February 5, 2010 through June 30, 2010, the Veteran's left shoulder disability demonstrated limitation of the arm to the shoulder level.  

3.  From July 1, 2010 through January 5, 2011, the Veteran's rheumatoid arthritis of the multiple joints was manifested by at least one exacerbation in a well-established diagnosis.

4.  From January 6, 2011 through September 16, 2012, the Veteran's rheumatoid arthritis of multiple joints was manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings, but no incapacitating exacerbations.  

5.  From September 17, 2012, rheumatoid arthritis of the left shoulder was manifested by complaints of pain and limitation of motion with flexion limited to no less than 100 degrees and abduction limited to 130 degrees; additional functional loss/impairment was noted from excess fatigability.

6.  From September 17, 2012, the Veteran's right wrist rheumatoid arthritis has been manifested by limitation of motion with pain, excess fatigability, weakened movement, and swelling; however, there has been no ankylosis of the joint.  

7.  From September 17, 2012, the Veteran's left wrist rheumatoid arthritis has been manifested by limitation of motion with pain, excess fatigability, weakened movement, and swelling; however, there has been no ankylosis of the joint.  

8.  From September 17, 2012, the Veteran's rheumatoid arthritis of the left hand has been manifested by pain, swelling, and limitation of motion in the thumb and fingers; the evidence reflects a gap of less than 1 inch (2.5 centimeters cm.) between the left thumb and the base of the little finger with the thumb attempting to oppose the fingers; and a gap of 1 inch (2.5 cm.) or more between the fingertip of the left fingers (index, long, ring, and little) and the proximal transverse crease of the palm. 

9.  From September 17, 2012, the Veteran's rheumatoid arthritis of the right hand has been manifested by pain, swelling, and limitation of motion in the thumb and fingers; the evidence reflects a gap of less than 1 inch (2.5 centimeters cm.) between the right thumb and the base of the little finger with the thumb attempting to oppose the fingers; and a gap of 1 inch (2.5 cm.) or more between the fingertip of the right fingers (index, long, ring, and little) and the proximal transverse crease of the palm. 

10.  From September 17, 2012, the Veteran's right hip rheumatoid arthritis has been manifested by limitation of abduction with motion lost beyond 10 degrees, limitation of extension to 0 degrees, and limitation of flexion to 70 degrees.  

11.  From September 17, 2012, the Veteran's left hip rheumatoid arthritis has been manifested by limitation of abduction with motion lost beyond 10 degrees, limitation of extension to 5 degrees or greater, and limitation of flexion to 70 degrees.  

12.  From September 17, 2012, the Veteran's right knee rheumatoid arthritis has been manifested by limitation of flexion to no worse than 90 degrees with full extension.

13.  From September 17, 2012, the Veteran's left knee rheumatoid arthritis has been manifested by pain and limitation of flexion to no worse than 60 degrees with full extension and no evidence of recurrent subluxation or lateral instability.  


CONCLUSIONS OF LAW

1.  Prior to February 5, 2010, with resolution of reasonable doubt in the Veteran's favor, the criteria for a 20 percent, but no higher, rating for rheumatoid arthritis of multiple joints are met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5002 (2013). 

2.  From February 5, 2010 through March 1, 2010, the criteria for a rating in excess of 20 percent for rheumatoid arthritis of the left shoulder are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5201-5002 (2013). 

3.  From March 2, 2010 through January 5, 2011, with resolution of reasonable doubt in the Veteran's favor, the criteria for a 20 percent, but no higher, rating for rheumatoid arthritis of the left shoulder are met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5201-5002 (2013). 

4.  From January 6, 2011 through September 16, 2012, with resolution of reasonable doubt in the Veteran's favor, the criteria for a 40 percent, but no higher, rating for rheumatoid arthritis of multiple joints are met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5002 (2013). 

5.  From September 17, 2012, with resolution of reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating for rheumatoid arthritis of the left shoulder are met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5201-5002 (2013). 

6.  From September 17, 2012, the criteria for a rating in excess of 10 percent of rheumatoid arthritis of the right wrist are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5215-5002 (2013). 

7.  From September 17, 2012, the criteria for a rating in excess of 10 percent of rheumatoid arthritis of the left wrist are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5215-5002 (2013). 

8.  From September 17, 2012, the criteria for a rating in excess of 20 percent for rheumatoid arthritis of the left hand are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5228, 5229, 5230-5002 (2013).  

9.  From September 17, 2012, with resolution of reasonable doubt in the Veteran's favor, the criteria for a 20 percent, but no higher, rating for rheumatoid arthritis of the right hand are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5228, 5229, 5230-5002 (2013).  

10.  From September 17, 2012, the criteria for a rating in excess of 20 percent for impairment of the right hip/thigh associated with rheumatoid arthritis are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5253-5002 (2013). 

11.  From September 17, 2012, the criteria for a rating in excess of 10 percent for limitation of extension of the right thigh associated with rheumatoid arthritis are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5252-5002 (2013). 

12.  From September 17, 2012, the criteria for a compensable rating for limitation of flexion of the right hip associated with rheumatoid arthritis are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5251-5002 (2013). 

13.  From September 17, 2012, the criteria for a rating in excess of 20 percent for impairment of the left hip/thigh associated with rheumatoid arthritis are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5253-5002 (2013). 

14.  From September 17, 2012, the criteria for a compensable rating for limitation of flexion of the left hip associated with rheumatoid arthritis are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5251-5002 (2013). 

15.  From September 17, 2012, with resolution of reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent rating for limitation of flexion associated with right knee rheumatoid arthritis are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5260-5202 (2013).

16.  From September 17, 2012, the criteria for a rating in excess of 10 percent for rheumatoid arthritis of the left knee are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5260-5002 (2013). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in September 2008 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The claim was initially adjudicated in December 2008 and most recently in March and April 2013.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the issues herein decided.  

In August 2012, the Board remanded the issue of entitlement to a compensable rating for rheumatoid arthritis of multiple joints for additional development.  Consistent with the Board's remand, the AOJ took steps to obtain all outstanding relevant records and scheduled the Veteran for VA examinations concerning certain joints; however, none of these VA examinations specifically addressed the Veteran's elbows.  As will be explained in the remand portion of this decision, the issue of entitlement to a separate evaluation for rheumatoid arthritis of the elbows is being remanded to afford the Veteran a VA examination with respect to this issue.  Regarding the remaining affected joints, the Board finds that the AOJ substantially complied with the prior remand.  See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

In sum, there is no evidence of (and the Veteran has not alleged) any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Factual Background

The record reflects that the Veteran was diagnosed with rheumatoid arthritis in the early 1990s and successfully treated with Enbrel for many years.  In a December 1993 rating decision, service connection was granted for rheumatoid arthritis of multiple joints and an initial noncompensable rating was assigned from September 13, 1992.  

A November 2007 private treatment record from Kaiser Permanente (Kaiser) reflects reports from the Veteran that she was doing well.  With respect to her arthritis, she stated that she felt fine and denied any morning stiffness or swelling.  It was noted that her rheumatoid arthritis was stable and she was instructed to continue taking Enbrel twice a week.  

In July 2008, the Veteran established care at the Hines VA Medical Center (VAMC).  She reported that she had recently moved from California.  It was noted that she had a 18-year history of rheumatoid arthritis and was on Enbrel.  She had recently switched to Plaquenil and had complaints of pain, stiffness, and swelling in "both right knees, elbow."  On physical examination, there was lateral left knee swelling and "posteriorfullness."  She was referred for a rheumatology consultation and given a Medrol (prednisone) dose pack.

An August 2008 VA rheumatology note reflects that the Veteran reported that her symptoms returned on Plaquenil and that she had stiffness and pain in her right knee, right elbow, right hand, left elbow, and left hand.  She stated that she had been prescribed a prednisone taper two weeks earlier with resolution of her symptoms.  On objective examination, she had normal strength and full range of motion of the shoulders and elbows.   There were no nodules or deformities of the bilateral hands.  She had normal strength and full range of motion of the knees; there was slight effusion of the right knee.  There was no tenderness, nodules, or deformities of the feet.  The Veteran was restarted on Enbrel.  

Later that month, the Veteran filed a claim for an increased rating for rheumatoid arthritis.

The report of a September 2008 VA examination reflects that the Veteran reported a recent flare-up of rheumatoid arthritis that involved her elbows, knees, wrists, and fingers.  She stated that her symptoms resolved after being placed on a steroid taper and restarted on Enbrel.  On physical examination, there was no evidence of swelling, erythema, or tenderness.  Range of motion of all digits of the hands, and both wrists was normal.  Range of motion of the elbows was also normal without pain.  Range of motion of the left knee was from 0 to 120 degrees without any painful limitation of motion.  There was no evidence of acute inflammation in either knee.  There was no evidence of instability.  There were no specific complaints regarding the shoulder, hips, or ankles.  There was no additional functional loss/impairment on repetitive testing.  

A November 2008 VA rheumatology note reflects that the Veteran was doing well after being restarted on Enbrel.  There was no synovitis in her knees and she had full range of motion.  Her other joints were okay.

A May 5, 2009 VA rheumatology note reflects that the Veteran complained of left shoulder pain.  She indicated that she had been doing a lot of physical activity lately and it hurt to abduct and internally rotate the shoulder.  It was noted that her knees were okay on Enbrel.  On physical examination, the left shoulder was tender to abduction and tender along the joint line.  There was no effusion.  The assessment was left shoulder bursitis.  The left subdeltoid space was injected with Xylocaine and Depo-Medrol with good relief.

An August 13, 2009 VA rheumatology note reflects that the Veteran's history of rheumatoid arthritis began with right knee swelling and evolved to her elbows and wrists, but never involved the hands and feet.  Different medicines were tried and she was eventually placed on Enbrel in 1999.  She had done extremely well since then with very little pain, stiffness, or deformity.  She indicated that she currently felt well.  On physical examination, there was no swelling of the shoulders.  The elbows, wrists, and finger joints were normal.  It was noted that X-rays of the hands in 2008 showed mild osteoarthritis, but no signs of rheumatoid arthritis.  The physician indicated that the Veteran's symptoms were atypical for inflammatory disease.  

A November 12, 2009 VA rheumatology note reflects that the Veteran complained that her left shoulder was bothering her and that she had muscle spasms that started under the shoulder and went under her left breast, waking her from sleep.  She reported that the shoulder had been injected, which gave her three to four weeks of relief.  On physical examination, range of motion of the left shoulder was limited due to pain.  There was no synovitis evident and no joint deformity.  There was very mild crepitus in the bilateral knees.  It was noted that August 2009 X-rays of the hips were within normal limits.  The physician noted that the Veteran had been doing well on Enbrel, but now had a history of left shoulder pain.  The physician indicated that the examination was consistent with frozen shoulder (i.e., adhesive capsulitis).  She received another left shoulder injection and X-rays were ordered.  

A December 2009 VA rheumatology note reflects that the Veteran was seen for a follow-up of the left shoulder.  She reported significant improvement in both pain and mobility for five weeks.  She said for the past two weeks, she noticed a return of pain to the level it was prior to her steroid injection.  She said pain control was adequate, but noticed increased muscle spasms at night that woke her from her sleep.  It was noted that November 2009 X-rays showed no fracture or dislocation and no degenerative changes.  On physical examination, she had decreased active extension, flexion, and abduction of the left shoulder.  Passive range of motion was improved, but with pain.  There was also some decreased range of motion in the right shoulder, but with full passive movement.  The physician indicated that the left shoulder pain was not consistent with inflammatory arthritis and that improvement with corticosteroid injection was not typical for adhesive capsulitis.  The physician noted that the condition was most likely tendonitis.  

The Veteran was referred for left shoulder physical therapy.  A February 5, 2010 record from a private physical therapist reflects that the Veteran continued to complain of left shoulder pain and muscle spasms.  She had difficulty reaching behind her back, grooming her hair, and carrying laundry.  She also said it was very difficult to reach overhead.  Active range of motion of the left shoulder was limited to 60 degrees on flexion and 45 degrees on abduction with pain.  Passive range of motion was limited to 80 degrees on flexion and 78 degrees on abduction with pain.  

A March 2, 2010 private physical therapy progress note reflects that the Veteran showed no significant improvements in global shoulder range of motion.  It was noted that there was a reduction in shoulder strength when compared to her initial evaluation.  Active range of motion was limited to 85 degrees on flexion and 80 degrees on abduction.  Passive range of motion was limited to 126 degrees on flexion and 128 degrees on abduction.  

A March 25, 2010 VA rheumatology note reflects that the Veteran was seen for left shoulder pain.  She reported that she had no other joint complaints except her shoulder.  She said the pain started about a year earlier, that she received an injection that helped some, but the pain progressed to the point were a second injection was needed.  She reported that she was sent for physical therapy in February, which helped the first two weeks, but was not helping much now though motion had improved.  She said her pain was worse at night and that she had difficulty sleeping.  On physical examination, there was no synovitis in the shoulders, elbows, wrists, finger joints, knees or ankles.  She had nearly full range of active and passive left shoulder motion.  There was pain at the extreme of external rotation.  There was no swelling or redness, but the subacromial space was mildly tender.  It was noted that rheumatoid arthritis was in remission and she was doing very well on Enbrel.  The physician noted that left shoulder pain appeared consistent with impingement, although it was not clear why she was not responding better.  

An April 12, 2010 private physical therapy note reflects that the Veteran reported that magnetic resonance imaging (MRI) revealed chronic tendonitis of the left shoulder.  She reported difficulty sleeping and pain when grooming her hair and showering.  She said she had range of motion to a point, but experienced pain when reaching overhead.  Active range of motion of the left shoulder was to 117 degrees on flexion and 93 degrees on abduction.  Passive range of motion was to 124 degrees on flexion and 104 degrees on abduction.  A discharge note from the following day indicates that no further physical therapy was ordered and the Veteran planned to follow-up with her doctor in June or July.

A July 1, 2010 VA rheumatology note reflects that the Veteran reported that she was doing much better.  After physical therapy, she said her shoulder pain was almost completely gone and she regained full range of motion.  It was also noted that her rheumatoid arthritis was doing very well with no pain or stiffness.  She said she felt great and was sleeping much better on Temazepam.  On physical examination, she had full range of motion of the shoulders with no pain or tenderness.  There was also no synovitis of the wrist, finger joints, knees, or ankles.  The assessment was that rheumatoid arthritis was in remission on Etanercept (Enbrel).  It was noted that multiple attempts in the past to discontinue Enbrel had resulted in flare-ups.  Capsulitis/impingement of the left shoulder was noted to be resolved.

A January 6, 2011 VA rheumatology note reflects that the Veteran reported that she had not been doing quite as well.  She said she still responded to Enbrel injection, but felt more pain in the day prior to the weekly shot.  She indicated that October 2010 had been particularly bad with more pain in the neck, low back, and lateral thighs.  On physical examination, there was no swelling in the elbows, shoulders, finger joints, knees, and ankles.  The Veteran's wrist was noted to be mildly tender, but not swollen.  It was also noted that the Veteran had more arthralgia but no synovitis.  The physician indicated that the treatment regimen would not be changed at that time.

A June 16, 2011 VA rheumatology note reflects that the Veteran reported much more pain and stiffness in the hands, shoulders, knees, ankles, and feet.  She said she slept poorly at night due to pain.  On physical examination, the shoulders were very tender; the elbows were okay; the wrists were tender with volar swelling; the first metacarpophalangeal (MCP) joints were positive for synovitis; the proximal interphalangeal (PIP) joints were tender with flexor tenosynovitis of the second, third, and fourth digits, bilaterally.  The knees were warm and tender.  There was no swelling of the ankles.  The metatarsophalangeal (MTP) joints were very tender.  The assessment was rheumatoid arthritis with significant flare and a need to change the regimen.  Different options were discussed and it was decided to switch to Humira and prednisone was added in the interim.  

A November 10, 2011 VA rheumatology note reflects that the Veteran reported having more joint pain since switching to Humira from Enbrel.  She continued to have pain, stiffness, and swelling in the hands, knees, and MTP joints.  She also had bilateral heel pain.  On physical examination, her shoulders and wrists were tender.  There was no swelling of the elbows or knees and the ankles were okay.  There was swelling of the MCP joints, but less tenosynovitis than the last visit.  Her MTP joints were tender bilaterally.  The assessment was that she still had some active disease and that there was much less synovitis than before starting Humira, but still incomplete control.  She also had bilateral plantar fasciitis, left worse than right.  Different options were discussed and Methotrexate was added to her regimen.  

A December 8, 2011 VA rheumatology note reflects that the Veteran was having persistent left heel pain and that right heel pain had resolved.  It was noted that a recent MRI had been negative for fracture except for a small plantar spur.  The Veteran was unsure if Humira was working and stated that she still had a lot of generalized joint pain, though no swelling.  On physical examination, there was no swelling of the shoulders, elbows, knees, ankles, or MTP joints.  The wrists and MCP/PIP joints were normal bilaterally.  The assessment was that rheumatoid arthritis appeared to be under very good control.  It was also noted that the Veteran had plantar fasciitis, which was not likely related to rheumatoid arthritis, and she was prescribed appropriate orthotics.  She also received an injection of Medrol into her left plantar fascia.  

An April 26, 2012 VA rheumatology note reflects that the Veteran reported that she had been admitted the previous month for a gastrointestinal bleed.  She had to discontinue Indomethacin (NSAIDs) and reported that her arthritis had gotten much worse, especially in the morning.  She complained of pain and stiffness in her hands, hips, shoulders, and knees.  She also reported back stiffness, which she had not had before.  On physical examination, there was no synovitis, nodules, hypertrophy, or deformities in her joints.  There was mild limitation of finger flexion and shoulder internal rotation bilaterally.  

A June 28, 2012 VA rheumatology note reflects that the Veteran reported pain in her left knee and ankle.  On physical examination, she had pain on full extension of the left knee and past 90 degrees on flexion.  There was minimal swelling, but no increased warmth or erythema.  She had full range of motion of the bilateral digits, wrists, and shoulders with no synovitis.  An addendum notes that Orencia injections were approved.  

On September 17, 2012, VA examinations of the shoulders, wrists, hands, hips, and knees were conducted.  

Regarding the shoulders, the examiner indicated that rheumatoid arthritis affected the Veteran's left shoulder and that she experienced flare-ups.  Left shoulder flexion was limited to 100 degrees with pain beginning at that point.  Left shoulder abduction was limited to 130 degrees with pain beginning at that point.  The examiner indicated that the Veteran could not perform repetitive-use testing because of fatigue.  The examiner indicated that functional loss/impairment of the left shoulder involved less movement than normal, excess fatigability, and pain on movement.  Left shoulder muscle strength was 3/5.  There was no ankylosis.  The examiner noted that the Veteran's shoulder condition did not impact her ability to work.

Regarding the wrists, the examiner indicated that rheumatoid arthritis affected both wrists and that the Veteran experienced flare-ups.  Range of motion of the right wrist was to 70 degrees on palmar flexion with pain beginning at that point, and to 60 degrees on dorsiflexion with pain beginning at that point.  Range of motion of the left wrist was to 20 degrees on palmar flexion with pain beginning at that point and to 20 degrees on dorsiflexion with pain beginning at that point.  The examiner indicated that the Veteran could not perform repetitive-use testing due to fatigue and pain.  The examiner noted that functional loss/impairment of the wrists included less movement than normal, weakened movement, excess fatigability, pain on movement, and swelling.  Muscle strength was 4/5 on the right and 3/5 on the left.  There was no ankylosis.  The examiner indicated that the Veteran's bilateral wrist disability did not impact her ability to work.  

Regarding the hands, the VA examiner indicated that rheumatoid arthritis affected both hands and that the Veteran had flare-ups.  There was limitation of motion of both thumbs involving a 1 inch gap between the thumb pads and fingers.  There was also limitation of motion in all fingers with a gap of 1 inch or more between the fingertips and proximal transverse crease of the palm.  The examiner indicated that there was painful motion in all fingers except the left ring finger.  There was also limitation of extension by no more than 30 degrees in the index and long fingers of both hands with pain.  The examiner indicated that the Veteran could not perform repetitive-use testing.  The examiner noted that functional loss/impairment involved less movement than normal, weakened movement, excess fatigability (only on the left), incoordination, pain on movement, and swelling.  Bilateral muscle strength was 3/5.  There was no ankylosis.  The examiner indicated that Veteran's hand/finger condition did not impact her ability to work.

Regarding the hips, the VA examiner indicated that rheumatoid arthritis affected both hips.  The Veteran reported having flare-ups of groin pain with lying down and walking.  Bilateral hip flexion was limited to 70 degrees with pain beginning at that point.  Left hip extension was to greater than 5 degrees with pain beginning at greater than 5 degrees.  Right hip extension was to 0 degrees with pain at that point.  Abduction was lost beyond 10 degrees bilaterally and the Veteran could not cross either leg.  The Veteran could not perform repetitive-use testing because of fatigue and pain.  The examiner indicated that functional loss/impairment involved less movement than normal, weakened movement, and excess fatigability.  Muscle strength was 4/5.  There was no ankylosis.  The examiner indicated that the Veteran's hip disability did not impact her ability to work.

Regarding the knees, the VA examiner indicated that rheumatoid arthritis affected both knees and that the Veteran had flare-ups of swelling and pain.  Range of motion of the right knee was limited to 90 degrees on flexion with pain beginning at that point.  The left knee was limited to 60 degrees on flexion with pain beginning at that point.  She had full extension in both knees.  The Veteran was unable to perform repetitive-use testing due to pain and fatigue.  The examiner indicated that functional loss/impairment involved less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, and disturbance of location.  Muscle strength was 4/5.  Lachman's test was normal for anterior instability.  Posterior drawer test was normal for posterior instability.  Valgus/varus stress testing was normal for medial-lateral instability.  There was no evidence or history of recurrent patellar subluxation or dislocation.  The examiner indicated that the Veteran's knee disability did not impact her ability to work.  

An October 4, 2012 VA rheumatology note indicates that the Veteran had been taking Orencia subcutaneously for three months and that she reported that it helped a little more than Humira.  She said she still had significant joint stiffness, fatigue, and joint pain.  Since the end of August, she had episodes of spontaneous bruising of the left hand at the dorsum that extended into the ventral aspect.  She had increased pain in the wrist and second and third digits.  On physical examination, fingertip to distal palmar crease distance was 3 cm. throughout and 4 cm. with the left second and third digits.  There was no synovitis.  Bilateral wrist flexion and extension was to 45 degrees.  There was tenderness to palpation of the left wrist.  The remainder of the examination was without synovitis.  Bilateral knee extension was full and intact.  Bilateral knee flexion was to 100 degrees.  The physician indicated that there had been only minimal response to Orencia, but the Veteran wished to complete the six month trial.  

Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before she filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

When evaluating disabilities of the joints, VA's Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations.  38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C .F.R. § 4.59.

Rheumatoid arthritis is rated under 38 C.F.R. § 4.71a, DC 5002.  Rheumatoid arthritis may be assigned ratings based on active or inactive disease processes.  Rheumatoid arthritis as an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating is evaluated as 100 percent disabling.  When there is less symptomatology than the criteria for 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, a 60 percent evaluation is assigned.  Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year are evaluated as 40 percent disabling.  One or two exacerbations a year in a well-established diagnosis is evaluated as 20 percent disabling.  38 C.F.R. § 4.71a, DC 5002

Diagnostic Code 5002 further provides that chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, should 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.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis.  The higher evaluation will be assigned.  38 C.F.R. § 4.71a, DC 5002.

For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements 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(f).

In this case, the AOJ evaluated the Veteran's rheumatoid arthritis, prior to February 5, 2010, as noncompensable under 38 C.F.R. § 4.71a, DC 5002.  Effective February 5, 2010, the AOJ rated each joint affected by rheumatoid arthritis separately under the corresponding diagnostic code.  

Period prior to February 5, 2010

Resolving the benefit of the doubt in the Veteran's favor, the Board finds that a higher 20 percent rating is warranted for rheumatoid arthritis prior to February 5, 2010.  In this regard, the evidence reflects that the Veteran had an exacerbation of rheumatoid arthritis in July 2008.  At that time, she had discontinued the use of Enbrel and her symptoms returned.  Although her symptoms resolved quickly when she restarted Enbrel and was given a prednisone taper, evidence of one or two exacerbations a year in a well-established diagnosis of rheumatoid arthritis warrants a 20 percent rating under Diagnostic Code 5002.  Furthermore, in Jones v. Shinseki, 26 Vet. App. 56 (2012), the U.S. Court of Appeals for Veterans' Claims (Court) determined that the Board erred when it considered the ameliorating effects of medication to evaluate a veteran's disability when those effects were not explicitly contemplated by the rating criteria.  Here, the rating criteria do not consider the use of medication.  Although it is difficult to ascertain the level of disability had the Veteran not restarted Enbrel, resolving the benefit of the doubt in her favor, the Board finds that a higher 20 percent rating is warranted prior to February 5, 2010.

The Board, however, does not find that a rating higher than 20 percent is warranted prior to February 5, 2010.  To warrant a higher rating under DC 5002, the evidence must show symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year.  Prior to February 5, 2010, the evidence reflects that, aside from the 2008 exacerbation, the Veteran's rheumatoid arthritis was in remission.  In August 2008, she reported that her symptoms had resolved after the prednisone taper.  In November 2008, she reported that she was doing well and her joints were okay on examination.  Other than her left shoulder, she had no specific joint complaints from May 2009 to February 2010.  

The Board has considered whether a rating higher than 20 percent would be warranted prior to February 5, 2010, if the chronic residuals of rheumatoid arthritis were rated separately under the specific diagnostic code for each joint affected.  As noted, the Veteran began having complaints of left shoulder pain, stiffness, and limited motion in May 2009.  The evidence, however, reflects that her left shoulder symptoms were not due to rheumatoid arthritis.  As noted by her treating physician in December 2009, her left shoulder pain was not consistent with inflammatory arthritis and improvement with corticosteroid injection was not typical for adhesive capsulitis.  Therefore, the most likely etiology was tendonitis.  

Although the Veteran did not have any other specific joint complaints during this time period, the Board notes that there were findings of some effusion of the right knee in August 2008, mild crepitus of the knees in November 2009, and some decreased active range of motion in the right shoulder in December 2009.  However, these isolated findings do not suggest ongoing chronic residuals warranting separately compensable ratings.  

For these reasons, the Board finds that a 20 percent, but no higher, rating for rheumatoid arthritis is warranted prior to February 5, 2010.

Period from February 5, 2010 to September 16, 2012

During this time period, the AOJ evaluated the chronic residuals of the Veteran's rheumatoid arthritis separately; however, the only identified joint affected was the left shoulder.  The AOJ evaluated the left shoulder disability under 38 C.F.R. § 4.71a, DC 5201, and assigned a 20 percent rating from February 5, 2010, and a 10 percent rating from March 2, 2010.  Therefore, the combined evaluation for rheumatoid arthritis was 20 percent from February 5, 2010 through March 1, 2010, and 10 percent from March 2, 2010 through September 16, 2012.  
At the outset, the Board notes that there is conflicting evidence as to whether the Veteran's left shoulder symptoms were attributable to rheumatoid arthritis.  As noted above, the Veteran's treating physician indicated that her symptoms were most likely tendonitis.  In March 2010, it was noted that her pain was consistent with impingement and her rheumatoid arthritis was in remission.  In April 2010, the Veteran reported that MRI findings were consistent with chronic tendonitis.  The September 2012 VA examiner, however, diagnosed rheumatoid arthritis of the left shoulder and provided no other diagnoses.  Because no clear medical distinction has been made and it appears the AOJ attributed all of the Veteran's left shoulder symptoms to her rheumatoid arthritis during this time period, the Board will resolve reasonable doubt in the Veteran's favor and do the same.  See Mittleider v. West, 11 Vet. App. 181 (1998) (Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability).

For the reasons explained below, the Board finds that a 20 percent rating is warranted for rheumatoid arthritis under either Diagnostic Code 5002 or Diagnostic Code 5201 from February 5, 2010 through January 5, 2011, and that a 40 percent rating percent rating is warranted under Diagnostic Code 5002 from January 6, 2011 through September 16, 2012.

Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203.  A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes.  In the instant case, as the Veteran is right-handed, her left shoulder is considered the minor upper extremity. 

Limitation of motion of the arm is evaluated under 38 C.F.R. § 4.71a, DC 5201.  Pertinent to the minor extremity, a 20 percent rating is assigned for limitation of motion of the arm to shoulder level or midway between side and shoulder level.  A 30 percent rating is assigned for limitation of the arm to 25 degrees from the side.  Id. 

Normal range of motion of the shoulder is from 0 to 180 degrees of flexion, from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation.  38 C.F.R. § 4.71, Plate I (2013). 

From February 5, 2010 through June 30, 2010, the evidence reflects that the Veteran's left shoulder disability met the criteria for a 20 percent rating under DC 5201.  In this regard, the Board notes that range of motion testing, along with complaints of pain when reaching overhead, indicate functional limitation of the left shoulder to the shoulder level.  As such, a 20 percent rating is warranted under DC 5201.  At no time, however, does the evidence reflect that her left shoulder was functionally limited to 25 degrees from the side.  Therefore, a higher 30 percent rating is not warranted under DC 5201.  The Board notes that as of July 1, 2010, the evidence reflects that the Veteran regained full range of motion and no longer had any left shoulder pain; however, her rheumatoid arthritis reportedly had a flare-up of active disease and generalized joint symptoms in October 2010, such that a 20 percent rating would still be warranted under DC 5002.  Therefore, resolving the benefit of the doubt in the Veteran's favor and considering the Court's holding in Jones, the Board finds that a 20 percent evaluation is appropriate from February 5, 2010 to January 6, 2011.

The Board has considered whether a still higher rating would be available under Diagnostic Code 5002.  From February 5, 2010 through January 5, 2011, the evidence reflects that the Veteran did not have any specific joint complaints except for the left shoulder.  In March 2010, it was noted that her rheumatoid arthritis was in remission and her left shoulder pain was consistent with impingement.  In July 2010, it was noted that her rheumatoid arthritis was in full remission and that her left shoulder capsulitis/impingement had resolved.  Because the evidence does not show symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year, the Board finds that the criteria for a higher 40 percent rating under DC 5002, for this period of time, are not met.  

From January 6, 2011, however, the evidence reflects worsening symptoms, as the Veteran had symptom combinations of active disease productive of definite impairment of health objectively supported by examination findings.  Accordingly, the Board finds that a higher 40 percent rating is warranted under 38 C.F.R. § 4.71a, DC 5002, from this date.  Specifically, the evidence of record shows that in January 2011, the Veteran reported having a bad flare-up, with her wrist or wrists noted as being mildly tender.  In June 2011, it was noted that she continued to have significant flare-up of symptoms and that there was tenderness and/or swelling in her wrists, MCP joints, PIP joints, knees, and MTP joints.  There was some improvement noted in November 2011, but still incomplete control of her symptoms.  In April 2012, she had similar complaints of pain and symptoms in multiple joints, and mild limitation of finger flexion and shoulder internal rotation.  In June 2012, there were some findings of the left knee, but otherwise she had full range of motion of the joints with no synovitis.  There were no incapacitating exacerbations during this time period and there was no indication of weight loss and anemia productive of severe impairment of health.  Hence, the criteria for a 60 percent rating were not met.  

The Board does not find that evaluating the Veteran's rheumatoid arthritis based on the chronic residuals for each joint affected is appropriate from January 6, 2011 through September 16, 2012.  In this regard, the evidence reflects active disease process with varying symptoms and joints affected.  The evidence does not reflect rheumatoid arthritis resulted in any chronic residuals of a particular joint during this time period.  

In summary, the Board finds that a 20 percent rating for rheumatoid arthritis is warranted from February 5, 2010 through January 5, 2011, and that a 40 percent rating is warranted from January 6, 2011 through September 16, 2012.  

Period from September 17, 2012

As of September 17, 2012, the AOJ evaluated the chronic residuals of the Veteran's rheumatoid arthritis separately based on each joint affected.  The combined evaluation is 80 percent as of September 17, 2012.



1.  Left Shoulder

During this time period, the Veteran's left shoulder is evaluated as 10 percent disabling under Diagnostic Code 5201.  The 10 percent evaluation is based on evidence of limitation of motion in a major joints.  38 C.F.R. § 4.71a, DC 5002; see also 38 C.F.R. § 4.59.  

Resolving the benefit of the doubt in the Veteran's favor, the Board finds that a higher 20 percent rating is warranted under 38 C.F.R. § 4.71a, DC 5201 from September 17, 2012.  In this regard, the Board notes that left shoulder flexion was limited to 100 degrees on flexion and to 130 degrees on abduction during the September 2012 VA examination.  Although range of motion was slightly greater than the shoulder level, the Board notes that the Veteran was unable to perform repetitive-use testing and that the examiner indicated functional limitation due to excess fatigability in addition to painful motion.  Considering painful motion and any additional functional impairment due to fatigability, the Board finds that a 20 percent rating is warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.  The medical evidence, however, reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered.  

2.  Wrists

The AOJ has evaluated rheumatoid arthritis of each wrist as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5215.  This diagnostic code provides ratings based on limitation of motion of the wrist.  Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major and minor wrist.  Limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major and minor wrist.  Id.

The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a.  For VA purposes, normal dorsiflexion of the wrist is from 0 to 70 degrees, and normal palmar flexion is from 0 to 80 degrees.  Normal radial deviation of the wrist is from 0 to 20 degrees, and normal ulnar deviation is from 0 to45 degrees.  38 C.F.R. § 4.71, Plate I.

Based on the evidence since September 17, 2012, the Board finds that ratings in excess of 10 percent for rheumatoid arthritis of the wrists are not warranted.  In this regard, the September 2012 VA examination findings reflect that the Veteran had normal right wrist dorsiflexion and that palmar flexion was limited to only 60 degrees.  Range of motion of the left wrist was more limited with dorsiflexion and plantar flexion limited to 20 degrees.  In October 2012, bilateral wrist flexion and extension was to 45 degrees.  These findings are commensurate with noncompensable ratings under Diagnostic Code 5215; however, 10 percent evaluations have been assigned based on objective evidence of limited motion with pain in each of these major joints.  See 38 C.F.R. § 4.59; DeLuca, supra.  The Board notes that higher ratings are not available unless there is evidence of ankylosis.  In this regard, the September 2012 VA examination report specifically notes that there was no ankylosis in either joint.  

3.  Hands

Limitation of motion of individual digits of the hand is evaluated under 38 C.F.R. § 4.71a, DCs 5228-5230.  As applicable to this case, the preamble to these diagnostic codes provides in particular, that:

(1)  For the index finger (digit II), zero degrees of flexion represents the finger fully extended, making a straight line with the rest of the hand.  The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position.  For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion.  38 C.F.R. § 4.71a, Table "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand."
(2)  When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 

(5)  If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation.  Id. 

Diagnostic Code 5228 for limitation of motion of the thumb assigns a noncompensable rating with evidence of a gap of less than one inch (2.5 cm. between the thumb pad and the finger, with the thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a.  A 10 percent evaluation is assigned with evidence of a gap of one inch to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Id. 

Diagnostic Code 5229 for limitation of motion of the index or long finger of either hand assigns noncompensable rating with evidence of a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees.  38 C.F.R. § 4.71a,.  A 10 percent evaluation is assigned with evidence of a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  Id. 

Under Diagnostic Code 5230, a noncompensable rating is assigned with any limitation of motion of the ring or little finger.  38 C.F.R. § 4.71a. 

In this case, the AOJ assigned two 10 percent ratings under Diagnostic Code 5229 for limitation of motion of the digits (presumably index and long finger) of the left hand, and a noncompensable rating under DC 5230 for limitation of motion of the left little finger.  The AOJ assigned a noncompensable rating under DC 5230 for limitation of motion of the right little finger.  Each of these ratings is effective September 17, 2012.

Initially, the Board observes that, according to the September 2012 VA examination, the Veteran has limitation of motion in each digit of both hands.  The Board notes that while there is some discrepancy in the examination report as to which fingers were affected, the findings in section 4 (b) & (c) of the report indicate that each thumb and finger had limited range of motion.  Hence, in accordance with paragraph (5) of the preamble to the diagnostic codes, because there is limitation of motion of two or more digits, each digit should be evaluated separately and the evaluations combined.  38 C.F.R. § 4.71a.

For the left hand, the examiner indicated that there was less than a 1 inch (2.5 cm.) gap between the thumb pad and the fingers.  Therefore, a noncompensable rating for the left thumb is warranted under DC 5228.  The examiner indicated that there was a 1 inch (2.5 cm) gap or more between the fingertip and the proximal transverse crease of the palm when each finger of the left hand was flexed to the extent possible.  Therefore, 10 percent ratings are warranted for the left index finger and left long finger under DC 5229, and noncompensable ratings are warranted for the left ring finger and left little finger under DC 5230.  When these evaluations are combined, a 20 percent rating is warranted for limitation of motion of multiple digits of the left hand.  See 38 C.F.R. § 4.25 (Combined Ratings Table).  

For the right hand, the examiner indicated that there was less than a 1 inch (2.5 cm.) gap between the thumb pad and the fingers.  Therefore, a noncompensable rating for the right thumb is warranted under DC 5228.  The examiner indicated that there was a 1 inch (2.5 cm) gap or more between the fingertip and the proximal transverse crease of the palm when each finger of the right hand was flexed to the extent possible.  Therefore, 10 percent ratings are warranted for the right index finger and right long finger under DC 5229, and noncompensable ratings are warranted for the right ring finger and right little finger under DC 5230.  When these evaluations are combined, a 20 percent rating is warranted for limitation of motion of multiple digits of the right hand.  See 38 C.F.R. § 4.25 (Combined Ratings Table).  

In October 2012, limitation of motion was also shown in each of the Veteran's fingers.  At that time there was a 4 cm gap between the fingertip and the proximal transverse crease of the palm in left second and third digits, and a 3 cm gap in the remaining fingers.  These findings are consistent with the evaluations above.  For the index and long fingers, a 10 percent evaluation is the maximum evaluation for limitation of motion.  For the ring and little fingers, a noncompensable evaluation is the maximum evaluation for limitation of motion.  No ankylosis of the fingers has been shown.  The Board has considered the directives of DeLuca and finds that the 20 percent combined ratings contemplates painful motion as well as weakness and the other pertinent factors.

Based on the foregoing, the Board finds that an evaluation in excess of 20 percent is not warranted for limitation of motion of multiple digits of the left hand and that a higher, 20 percent rating is warranted for loss of motion of multiple digits of the right hand.

4.  Hips/Thighs

Limitation of motion of the hip and thigh are rated under 38 C.F.R. § 4.71a, DCs 5251-5253.  Under DC 5251, which contemplates limitation of extension of the thigh, a maximum 10 percent rating is warranted when extension is limited to 5 degrees.  Under DC 5252, which contemplates limitation of flexion of the thigh, a 20 percent rating is warranted if flexion is limited to 30 degrees, and 10 percent rating is assigned when flexion is limited to 45 degrees.  Under DC 5253, which contemplates impairment of the thigh, a 20 percent disability rating is warranted for limitation of abduction, where motion is lost beyond 10 degrees; and a 10 percent rating is assigned when there is limitation of adduction of the thigh and inability to cross the legs, or when there is limitation of rotation of the thigh, and inability to toe-out more than 15 degrees in the affected leg.  38 C.F.R. § 4.71a.  Normal range of motion in the hip consists of flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71, Plate II. 

In this case, the AOJ has assigned separate evaluations under DCs 5251, 5252, and 5253 for limitation of motion of the right hip.  A 20 percent evaluation has been assigned under DC 5253, a 10 percent evaluation has been assigned under DC 5251, and a noncompensable evaluation has been assigned under DC 5252.  The Board finds that higher evaluations are not warranted.  The Veteran is receiving the maximum evaluation under DC 5253, which compensates her for limitation of abduction of the right leg with motion lost beyond 10 degrees.  She is also receiving the maximum evaluation under DC 5252 for limitation of extension.  Regarding limitation of flexion, the September 2012 VA examination showed flexion of the right hip limited to 70 degrees with pain beginning at that point.  To warrant a compensable rating, the evidence must show flexion limited to 45 degrees.  Even when pain and other DeLuca factors are considered, the evidence does not reflect functional loss/impairment equivalent to a compensable rating under DC 5252.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.  

Regarding the left hip, the AOJ has assigned separate evaluations under DCs 5252 and 5253, effective September 17, 2012.  A 20 percent evaluation has been assigned under DC 5253, and a noncompensable evaluation has been assigned under DC 5252.  The Veteran is receiving the maximum evaluation under DC 5253, which compensates her for limitation of abduction of the left leg with motion lost beyond 10 degrees.  Regarding limitation of flexion, the September 2012 VA examination showed flexion of the left hip limited to 70 degrees with pain beginning at that point.  As noted above, the evidence does not reflect entitlement to a compensable rating even when pain and other DeLuca factors are considered under DC 5252.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.  The Board also finds that a separate evaluation for limitation of extension is not warranted for the left hip because the evidence reflects that extension is limited to greater than 5 degrees.  See 38 C.F.R. § 4.71a, DC 5251.

Based on the foregoing, the Board finds that higher evaluations are not warranted for rheumatoid arthritis of hips/thighs.

5.  Knees

Disabilities of the knee are evaluated under 38 C.F.R. § 4.71a, DCs 5256-5263.

Under Diagnostic Code 5257, which concerns "other impairments of" the knees, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee; a 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5260, which concerns limitation of flexion of the leg, a noncompensable (zero percent evaluation) is assigned for flexion limited to 60 degrees; a 10 percent evaluation is assigned for flexion limited to 45 degrees; a 20 percent evaluation is assigned for flexion limited to 30 degrees; and a 30 percent evaluation is assigned for flexion limited to 15 degrees.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, which concerns limitation of extension of the leg, a noncompensable evaluation is assigned for extension limited to 5 degrees; a 10 percent evaluation is assigned for extension limited to 10 degrees; a 20 percent evaluation is assigned for extension limited to 15 degrees; a 30 percent evaluation is assigned for extension limited to 20 degrees; a 40 percent evaluation is assigned for extension limited to 30 degrees; and a 50 percent evaluation is assigned for extension limited to 45 degrees.  38 C.F.R. § 4.71a.

Under the rating schedule, normal range of motion of the knee for VA compensation purposes will be considered flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71a, Plate II.

A separate, compensable rating may be assigned under each of these three Diagnostic Codes (5257, 5260, and 5261), if the specific symptoms are shown.  See VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04.  Specifically, in VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  See 62 Fed. Reg. 63604 (1997).  Additionally, in VAOPGCPREC 9-98 (1998), the VA General Counsel explained that, when a Veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under DC 5260 or DC 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.  In the alternative, a compensable rating may be granted by virtue of 38 C.F.R. § 4.59 (which specifically provides that, when a Veteran has arthritis that is productive of painful motion due to unstable or malaligned joints due to healed injury, the disability is entitled to the minimum compensable evaluation for the joint, i.e., 10 percent under either DC 5260 or DC 5261).  See 63 Fed. Reg. 56703 (1998).

As an initial matter, the Board notes that the September 2012 VA examiner has indicated that the Veteran's rheumatoid arthritis affects both her knees; however, the Veteran is already in receipt of a 10 percent evaluation for service-connected residuals of a right knee injury under DC 5257, for recurrent subluxation or lateral instability.  This evaluation was subject to the Board's August 2012 decision, and is no longer on appeal.  As noted above, however, in certain circumstances separate ratings may be assigned under DCs 5260 and/or 5261 based on limitation of motion without violating the rule against pyramiding.  See 38 C.F.R. § 4.14.  In this case, during the September 2012 VA examination, the Veteran's right knee had full range of extension and flexion was limited to 90 degrees with pain at the endpoints.  While flexion must be limited to 60 degrees to warrant a noncompensable rating under Diagnostic Code 5261, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and entitlement to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.  Hence, a separate 10 percent rating for limitation of flexion of the right knee associated with rheumatoid arthritis is warranted from September 17, 2012.  

Regarding the left knee, the AOJ has assigned a 10 percent rating for limitation of flexion associated with rheumatoid arthritis under Diagnostic Code 5261 effective September 17, 2012.  The Board finds that a rating higher than 10 percent is not warranted under Diagnostic Code 5261.  At worse, flexion was limited to 60 degrees with pain beginning at that point, which is commensurate with a noncompensable rating.  Hence, the Board finds that a 10 percent rating adequately compensates the Veteran for painful motion and any additional functional impairment due to fatigability and other DeLuca factors.  38 C.F.R. §§ 4.40, 4.45, 4.59.  

The Board does not find that separate ratings are warranted for the left knee under Diagnostic Codes 5257 or 5260.  In this regard, the Veteran had full extension of the left knee in September and October 2012.  There was also no evidence of instability or subluxation during the September 2012 VA examination.  Lachman's test, posterior drawer test, and varus/valgus stress testing were all normal.  The examiner indicated that there was no evidence of patellar subluxation or dislocation.  

Based on the foregoing, the Board finds that a separate 10 percent rating is warranted for limitation of flexion associated with right knee rheumatoid arthritis; however, a rating in excess of 10 percent is not warranted for left knee rheumatoid arthritis.

Other Considerations

In making the aforementioned determinations, the Board has considered the Veteran's lay statements.  The Veteran is competent to report her observations with regard to the severity of her rheumatoid arthritis and various joint symptoms, including pain, stiffness, weakness, limited motion, and swelling.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board also finds her statements to be credible and consistent with the evaluations assigned.  To the extent she argues her symptomatology is more severe, her statements must be weighed against the other evidence of record.  Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's general lay assertions, as they are objective findings based on thorough examinations of the Veteran's symptomatology.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.

The discussion above reflects that the Veteran's rheumatoid arthritis symptomatology is contemplated by the applicable rating criteria.  The rating criteria contemplate flare-ups of active disease and chronic residuals in the affected joints.  Specific to each joint affected, the applicable rating criteria contemplate functional limitations due to pain and limited and abnormal mobility.  The above evaluations have taken into account additional functional loss/impairment due to other symptoms such as painful motion, weakness, fatigability, and swelling.  Significantly, the Veteran has not complained of or identified any symptoms that are not contemplated by the rating criteria.  Hence, the evidence compels the conclusion that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical.  Therefore, referral for consideration of extraschedular ratings for rheumatoid arthritis is not warranted.  38 C.F.R. § 3.321(b)(1).

The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In Rice, the Court held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record.  Here, however, the Veteran has not claimed nor does the evidence indicate that she is unemployable due to her service-connected disabilities.  Accordingly, a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is not deemed to be a component of the current appeal. 

In this case, the Board finds that a higher 20 percent rating is warranted for rheumatoid arthritis prior to February 5, 2010; a rating in excess of 20 percent is not warranted from February 5, 2010 through March 1, 2010; a higher 20 percent rating is warranted from March 2, 2010 through January 5, 2011, and a higher 40 percent rating is warranted from January 6, 2011 through September 16, 2012.  Effective September 17, 2012, the Board finds that the following ratings are warranted for chronic residuals of rheumatoid arthritis:  a 20 percent rating for the left shoulder, a 10 percent rating for the right wrist, a 10 percent rating for the left wrist, a 20 percent rating for the left hand, a 20 percent rating for the right hand, a 20 percent rating for impairment of the right hip/thigh, a 10 percent rating for limitation of extension of the right thigh, a 0 percent rating for limitation of flexion of the right hip, a 20 percent rating for impairment of the left hip/thigh, a 0 percent rating for limitation of flexion of the left hip, a 10 percent rating for limitation of flexion of the right knee, and a 10 percent rating for limitation of flexion of the left knee.  In reaching this decision, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher ratings.  38 U.S.C.A. § 5107(b).


ORDER

Prior to February 5, 2010, a 20 percent rating, but no higher, for rheumatoid arthritis is granted, subject to the legal authority governing the payment of compensation benefits. 

From February 5, 2010 through March 1, 2010, a rating in excess of 20 percent for rheumatoid arthritis of the left shoulder is denied.

From March 2, 2010 through January 5, 2011, a 20 percent rating, but no higher, for rheumatoid arthritis of the left shoulder is granted, subject to the legal authority governing the payment of compensation benefits. 

From January 6, 2011 through September 16, 2012, a 40 percent rating, but no higher, for rheumatoid arthritis is granted, subject to the legal authority governing the payment of compensation benefits. 

From September 17, 2012, a 20 percent rating, but no higher, for rheumatoid arthritis of the left shoulder is granted, subject to the legal authority governing the payment of compensation benefits. 

From September 17, 2012, a rating in excess of 10 percent for rheumatoid arthritis of the right wrist is denied.  

From September 17, 2012, a rating in excess of 10 percent for rheumatoid arthritis of the left wrist is denied.  

From September 17, 2012, a rating in excess of 20 percent for rheumatoid arthritis of the left hand is denied.  

From September 17, 2012, a 20 percent rating, but no higher, for rheumatoid arthritis of the right hand is granted, subject to the legal authority governing the payment of compensation benefits. 

From September 17, 2012, a rating in excess of 20 percent for impairment of the right hip/thigh associated with rheumatoid arthritis is denied.  

From September 17, 2012, a rating in excess of 10 percent for limitation of extension of the right thigh associated with rheumatoid arthritis is denied.  

From September 17, 2012, a compensable rating for limitation of flexion of the right hip associated with rheumatoid arthritis is denied.  

From September 17, 2012, a rating in excess of 20 percent for impairment of the left hip/thigh associated with rheumatoid arthritis is denied.  

From September 17, 2012, a compensable rating for limitation of flexion of the left hip associated with rheumatoid arthritis is denied.  

From September 17, 2012, a separate 10 percent rating for limitation of flexion of the right knee associated with rheumatoid arthritis is granted, subject to the legal authority governing the payment of compensation benefits.  

From September 17, 2012, a rating in excess of 10 percent for rheumatoid arthritis of the left knee is denied.  


REMAND

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 
11 Vet. App. 268, 271 (1998). 

In August 2012, the Board remanded the claim, in part, to afford the Veteran a VA examination to assess the current severity of her rheumatoid arthritis.  The Board specifically requested that the examiner address the Veteran's hands, wrists, elbows, shoulders, and the left knee.  In September 2012, VA examinations were conducted for each of these joints; however, the Veteran's elbows were never specifically addressed.  Specifically, the Board notes that a Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) was completed and that the examiner diagnosed rheumatoid arthritis of the left shoulder.  However, no other diagnoses were given for the arms or shoulders, and it is therefore unclear as to whether the Veteran's elbows were considered.  Notably, there are no findings in the DBQ report pertaining to the elbows.  Hence, a remand is necessary for another VA examination that specifically addresses the Veteran's elbows.

The record reflects that the Veteran receives ongoing treatment at the Hines VAMC.  Currently, the Virtual VA electronic folder includes VA treatment records dated to November 2012.  On remand, all updated pertinent VA treatment records should be obtained.


Accordingly, the case is REMANDED for the following actions:

1.  Any outstanding, pertinent private and/or VA treatment records should be obtained and incorporated in the claims folder.  Specifically, this should include any treatment records from the Hines VAMC since November 2012.  The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA.  All attempts to procure such records must be documented in the file.  If the AOJ cannot locate such records, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AOJ must then:  (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond

2.  Thereafter, the Veteran must also be afforded a VA examination that specifically addresses whether she has any chronic residuals of rheumatoid arthritis in her elbows.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review.

In accordance with the latest worksheets for rating elbow disability the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of any disability.  The examiner should address whether the Veteran has chronic residuals of rheumatoid arthritis in her elbows.  If so, the examiner should describe these residuals and provide range of motion findings for each affected joint.

A complete and well reasoned rationale for any opinion expressed must be provided.

3.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue remaining on appeal.  If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and her representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  Then return the case to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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 (West Supp. 2013).


______________________________________________
A. ISHIZAWAR
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs