Citation Nr: 1338099 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-05 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a left shoulder disability, claimed on a direct-incurrence basis and as secondary to service-connected arthritis. 2. Entitlement to an increased (compensable) rating for a service-connected right hand disability. 3. Entitlement to an increased (compensable) rating for a service-connected left hand disability. 4. Entitlement to a combined rating for service-connected disabilities greater than 40 percent prior to February 27, 2012, and greater than 60 percent since April 1, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to May 1981 and from January 1982 to November 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) is from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2007 and December 2008. In the April 2007 decision, the RO denied service connection for a left shoulder disability. In the December 2008 decision that is also the subject of this appeal, the RO again denied service connection for a left shoulder disability, but this time based on the Veteran's claim that this disability was secondary to his service-connected inflammatory arthritis. Also in that additional decision, the RO granted service connection and separate ratings for multiple joints that were previously rated together under a single disability rating. This included granting service connection and a 0 percent rating for a right hand condition and granting service connection and a 0 percent rating for a left hand condition. The overall combined service-connected disability rating increased from 30 to 40 percent retroactively effective as of February 6, 2008. In perfecting his appeals for the assigned ratings for his left and right hand disabilities, and the denial of service connection for the left shoulder disability, the Veteran also contested the 40 percent combined evaluation for all of his service-connected conditions that was in effect at the time. In June 2011, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a Travel Board hearing. The Board subsequently remanded the claims in January 2012 for additional development and consideration. In July 2012 the RO assigned a 100 percent rating for the Veteran's service-connected right knee disability effective from February 27, 2012 to April 1, 2013. That, in turn, affected the combined rating when considering all of his service-connected disabilities. Speaking of which, the issue of entitlement to a combined rating for the service-connected disabilities greater than 40 percent prior to February 27, 2012, and greater than 60 percent since April 1, 2013, is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the remaining claims. FINDINGS OF FACT 1. It is at least as likely as not the left shoulder arthritis is etiologically related to previously service-connected inflammatory arthritis. 2. The Veteran's service-connected bilateral (left and right) hand disabilities are not manifested by an active rheumatoid arthritis process, X-ray findings of arthritis, ankylosis of the joints, or limitation of motion of any of the individual digits. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for service connection for left shoulder arthritis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. But the criteria are not met for compensable ratings for the left and right hand disabilities. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5216-5230 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. With respect to the Veteran's service-connection claim, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. With respect to his increased-rating claims, the Veteran is challenging the initial evaluations assigned following grants of service connection. As service connection has been granted and an initial disability rating and effective date assigned, the purpose of any pre-adjudication notice has been served. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In accordance with the applicable laws and regulations, the Veteran was provided a statement of the case (SOC) in January 2010 in response to his notice of disagreement (NOD) concerning the "downstream" disability rating issue. 38 U.S.C.A. §§ 5104(b), 7105(d); 38 C.F.R. § 3.103(b). See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). He has not alleged any notice deficiency during the processing or adjudication of his claims, much less which was unduly prejudicial, meaning outcome determinative of his claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file for consideration. He was also provided VA examinations that, collectively, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and record the relevant findings for rating his bilateral hand disability. Notably, the most recent examination in February 2012 stated that the Veteran's rheumatoid arthritis was in a period of inactivity. When there is a history of remission and recurrence of a condition, the duty to assist encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). In this case, however, the Veteran has already undergone two VA examinations for his bilateral hand disability during the period on appeal. These examinations recorded similar histories of complaints from him, and these histories are consistent with his treatment records from the period on appeal and his June 2011 hearing testimony. These combined histories all reflect ongoing symptomatology, not periods of activity and inactivity. Remanding the claims to allow him to appear for an examination when he subjectively experiences an "active" phase of his disability is not practical because he has only reported a constant level of symptoms. In Voerth v. West, 13 Vet. App. 117 (1999), the Court stated that a new examination was warranted in Ardison because active tinea pedis was a condition that would exist for weeks or months. The holding in Ardison did not apply in Voerth because an orthopedic disability is different from a skin condition. A flare-up lasting only one or two days not only renders a new VA examination impractical, but a "person who experiences a worsened condition only for a few days out of a year simply is less impaired than someone who suffers from the worsened condition for weeks or months." Voerth, at 123. Therefore, VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, regarding the Veteran's Travel Board hearing, it was adequate as the VLJ who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked and that might tend to substantiate or support the claims. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service Connection Service connection is warranted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A finding of secondary service connection generally requires competent medical evidence to connect or associate the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran was previously assigned a single rating for service-connected inflammatory arthritis. In the December 2008 rating decision on appeal, the RO reevaluated that condition under separate ratings for each affected body part, and it was noted in the accompanying rating code sheet that these separate ratings were previously evaluated as inflammatory arthritis. The Veteran's treatment records and examination reports also clearly document a left shoulder disability, including surgical treatment. The pertinent question is whether his current left shoulder disability is related to his previously service-connected inflammatory arthritis. The evidence of record includes left shoulder diagnoses of osteoarthritis, septic arthritis, degenerative joint disease, and rheumatoid (inflammatory) arthritis. The diagnosis of rheumatoid arthritis is contained in private records from November 2007, which note "some degree of active rheumatoid arthritis" in the left shoulder. Although VA examinations conducted in June 2008 and February 2012 determined the Veteran's left shoulder disability was not caused by or proximately due to an inflammatory arthritis condition, neither examiner specifically commented on the November 2007 finding. Moreover, while not medical evidence, per se, the Board is nonetheless mindful that the Veteran is presently service connected for arthritis disabilities of the ankles, knees, hands, elbows, and right shoulder. So it already has been conceded he has some type of systemic arthritis that is affecting multiple joints. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. Rather, there need only be this approximate balance of evidence for and against the claim for the Veteran to prevail. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Given the diagnosis of left shoulder rheumatoid arthritis, and in light of the Veteran's other widespread service-connected joint disabilities, the Board finds that any reasonable doubt regarding the etiology of the Veteran's left shoulder condition may be resolved in his favor. Therefore, service connection for left shoulder arthritis is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). All reasonable doubt regarding a degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2013). See also 38 C.F.R. § 4.7, indicating the lower rating will be assigned when the disability more reflects the requirements for that rating, and that otherwise the higher rating will be assigned. Where entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But irrespective of whether an initial or established rating, VA adjudicators must consider whether to "stage" a rating, meaning assign different ratings at different times if there have been occasions when the disability has been more severe than at others. This compensates the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999). Pain, weakened movement, excess fatigability, or incoordination must be analyzed to determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. The guidance provided in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. When the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The available Diagnostic Codes for rating the Veteran's hand disabilities are listed under 38 C.F.R. § 4.71a. The Veteran's left and right hand disabilities are each currently assigned a 0 percent (noncompensable) rating under Diagnostic Code 5215-5220. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5215 pertains to limitation of motion of the wrist. 38 C.F.R. § 4.71a. The Veteran is service-connected for his hands, and the treatment records and examination reports of record reflect complaints specific to the hands but not the wrists. Although Diagnostic Code 5215 is included in the Veteran's assigned ratings, evaluating his condition under this code is not appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in diagnostic code must be specifically explained). Even if this Diagnostic Code were considered, the April 2008 VA examination specifically noted full range of motion in the wrists without pain. Evaluation of ankylosis or limitation of motion of single or multiple digits of the hand is governed by Diagnostic Codes 5216 through 5230. Within that group, Diagnostic Codes 5216 through 5227 address ankylosis of the digits. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. However, neither the VA examination reports nor the Veteran's treatment records reflect any findings of ankylosis of the hands or digits. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). A 10 percent rating for limitation of motion of the thumb is available under Diagnostic Code 5228 when there is a gap of 1 to 2 inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating for limitation of motion of the index or long finger is available under Diagnostic Code 5229 when there is a gap of 1 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. However, the April 2008 VA examination noted that the tips of all fingers could touch the thumb and proximal thumb crease without difficulty or discomfort. The Veteran had full closure of both hands. The metacarpophalangeal joints, proximal interphalangeal joints, and distal interphalangeal joints all had full range of flexion. The February 2012 examination noted no limitation of motion, or painful motion, for any of the fingers or thumbs bilaterally. There was no gap between the thumb pads and fingers. There was no gap between any fingertips and the proximal transverse crease of the palm, or any associated pain motion in attempting to touch the palm with the fingertips. There was no limitation of extension or painful motion of the index or long fingers. There was no additional limitation of any of the above tests following repetitive motion. The examiner noted that there was no functional loss associated with the bilateral hands, fingers, or thumbs. Therefore, compensable ratings under Diagnostic Codes 5228 and 5229 are not warranted. The Board has also considered rating the Veteran's bilateral hand disabilities under Diagnostic Code 5002, which pertains to rheumatoid arthritis. However, that Diagnostic Code provides that for inactive processes, such as this case, residuals are only to be rated under the appropriate diagnostic codes for the specific joints involved, as the Board has done above. Similarly, a rating under Diagnostic Code 5003 for degenerative arthritis is not appropriate because it requires arthritis established by x-ray findings. Id. Here, x-rays from April 2008 and April 2011 reflect normal findings. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as pain and swelling. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These statements, as well as the Veteran's hearing testimony, are generally corroborated by the Veteran's treatment records, including findings of mild joint hypertrophy in the hands in June 2010. Therefore, the Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, when viewed with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. What has not been demonstrated is how the Veteran's bilateral hand conditions meet the schedular criteria for compensable ratings, or result in an overall level of impairment that is otherwise consistent with such ratings. In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), and the Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering if the Veteran is entitled to an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hand conditions with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Any potential limitation of motion or ankylosis associated with the Veteran's hand conditions is expressly contemplated by the applicable Diagnostic Codes. There is no indication that the Veteran's conditions results in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER Service connection for left shoulder arthritis is granted. However, compensable ratings for the left and right hand disabilities are denied. REMAND The Veteran appealed the combined ratings assigned for his service-connected disabilities, which are currently rated at 40 percent prior to February 27, 2012, and at 60 percent since April 1, 2013. Between February 27, 2012 and April 1, 2013, he was assigned a 100 percent rating. Therefore, that intervening period is not at issue. In this decision the Board additionally has granted service connection for his left shoulder arthritis. However, the RO/AMC resultantly needs to assign a rating and effective date for this now service-connected disability. Therefore, a decision on the propriety of the Veteran's combined ratings cannot be rendered until he has been assigned an effective date and disability rating for his now service-connected left shoulder disability. Accordingly, this claim is REMANDED for the following action: 1. Implement the Board's grant of service connection for the left shoulder arthritis, including by assigning an initial rating and effective date for this disability. 2. Then readjudicate the issue of whether the Veteran is entitled to a combined disability rating for all of his service-connected disabilities greater than 40 percent prior to February 27, 2012, and greater than 60 percent since April 1, 2013. If this claim continues to be denied, send him and his representative an appropriate SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs