Citation Nr: 1342549	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  10-22 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to an initial compensable disability rating for psoriatic arthritis of the bilateral hands.

2.  Entitlement to an initial compensable disability rating for psoriatic arthritis of the bilateral feet.


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel



INTRODUCTION

The Veteran had active military service from September 1986 to October 2008.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that granted service connection for psoriatic arthritis of the bilateral hands and feet and assigned initial noncompensable disability evaluations, effective from November 1, 2008.

In October 2010, the Veteran testified at a videoconference hearing before the undersigned.  A transcript of the hearing is of record.

In July 2011 and April 2013, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C.

In December 2012 correspondence, the Veteran provided the RO with her new mailing address in the state of Washington and, in April and requested that her claims file be moved to VA RO in Washington state.  The request is referred to the agency of original jurisdiction (AOJ) for appropriate action.

The matter of entitlement to ratings in excess of 10 percent for psoriatic arthritis of the left and right hands and feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC.



FINDING OF FACT

Psoriatic arthritis of the Veteran's hands and feet is manifested by deformity, swelling, and pain on motion. 


CONCLUSIONS OF LAW

1.  The schedular criteria for initial and separate 10 percent ratings for psoriatic arthritis of the Veteran's left and right hands have been met since November 1, 2008.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5002, 5009, 5225, 5226, 5228-5230 (2013). 

2.  Resolving all reasonable doubt in the Veteran's favor, the schedular criteria for initial and separate 10 percent ratings for psoriatic arthritis of her left and right feet are met since November 1, 2008.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5009, 5270, 5271, 5284 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  This decision grants a 10 percent rating for psoriatic arthritis in each hand and foot, and defers consideration of higher ratings.  There is no need for further notice or assistance to aid the Veteran in substantiating the aspects of the claims being decided here.

Rating Criteria

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2013).

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  Id.  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Veteran's statements describing the symptoms of her service-connected psoriatic arthritis of the bilateral hands and feet are deemed competent.  These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013).

The Veteran's disabilities are rated under Diagnostic Code 5009.  Pursuant to Diagnostic Code 5009, other types of arthritis, such as psoriatic arthritis, should be rated under Diagnostic Code 5002 as rheumatoid arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5002.  Under Diagnostic Code 5002, the disability may be rated as an active process or on the basis of chronic residuals.  Id.

For an active process, a 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis.  38 C.F.R. § 4.71a, Diagnostic Code 5002.  A 40 percent rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year.  Id.

A 60 percent evaluation is assignable for less than criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times yearly or a lesser number over prolonged periods.  Id.  A 100 percent evaluation is assignable when there are constitutional manifestations associated with active joint involvement, totally incapacitating.  Id.

If rated based on chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, the rating should be under the appropriate diagnostic codes for the specific joint or joints involved.  Id.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5002.  Id.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.

The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation is to be assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5002, Note.  In the present case, the combined evaluation for the residual ratings is 70 percent.

Review of the VA examinations in February and July 2009, September 2011, and June 2013, and the TRICARE records, discloses no limitation of motion of the fingers or feet, although the June 2013 examiner stated that, due to residuals of chronic inflammation of the Veteran's right little finger caused weakness, it rested in mild flexion of the PIP joint and mild hyperextension of the DIP joint, but could be put in normal position passively.  The examiner also noted deformity of the thumbs.  All the VA examiners, and private clinicians, reported that the Veteran did have psoriatic arthritis in the right and left hands.  The Board finds that the above clinical findings amount to a noncompensable disability rating under Diagnostic Codes 5228-5230.  Based on the objective findings of record, bilateral hand range of motion is noncompensable under the rating criteria for limitation of motion of the hand and fingers. 

Although the limitation of motion is noncompensable under rating criteria for the hands fingers, and feet under Diagnostic Code 5002, a 10 percent disability rating is for application for each such major joint affected by limitation of motion or group of minor joints affected by limitation of motion.  Thus, a 10 percent disability rating is warranted under Diagnostic Code 5002 for psoriatic arthritis of the right hand/fingers, and a 10 percent disability rating is warranted for psoriatic arthritis of the left hand/fingers.  See 38 C.F.R. § 4.71a, Diagnostic Code 5002.  For the purposes of rating disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on parity with major joints.  See 38 C.F.R. § 4.45(f).  Thus, the Veteran's hand and fingers are encompassed as a group of minor joints, and are rated as such.  See also 38 C.F.R. § 4.14 (2013).  Further, the evaluation of the same impairment of function under various diagnoses is to be avoided.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

For the purposes of rating disability from arthritis, multiple involvements of the toes are considered groups of minor joints, ratable on parity with major joints.  See 38 C.F.R. § 4.45(f).  Thus, the Veteran's foot and toes are encompassed as a group of minor joints, and are rated as such.  See also 38 C.F.R. § 4.14.  Further, the evaluation of the same impairment of function under various diagnoses is to be avoided.  Esteban v. Brown, 6 Vet. App. at 262.

As such, initial 10 percent ratings are warranted for psoriatic arthritis of the Veteran's left and right hands and left and right feet.  The matter of schedular ratings in excess of 10 percent for her left and right hands is addressed in the remand, infra.


ORDER

Initial and separate 10 percent ratings for psoriatic arthritis of the left and right hands are granted effective November 1, 2008.

Initial and separate 10 percent ratings for psoriatic arthritis of the left and right feet are granted effective November 1, 2008.


REMAND

In its April 2013 remand, the Board directed that the Veteran should be provided an examination in which the examiner reported whether her psoriatic arthritis of the bilateral hands and feet was manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain.  If so, the examiner should report the additional range of motion loss due to those factors.  Mitchell v. Shinseki, 25 Vet. App. at 32 and DeLuca v. Brown, 8 Vet. App. at 202, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59.

The June 2013, VA examiner reported that it would be speculative to describe any such additional limitation due to pain, weakness, fatigability, or incoordination or additional loss of [range of motion] due to "'pain on use or during flare-ups.'"  The examiner did not explain why it was not possible to provide opinions as required by the courts and VA regulations.  Cf. Jones v. Shinseki, 23 Vet. App. 382 (2010).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a new VA examination of her hands and feet performed by an appropriately qualified physician to determine current severity and all manifestations of her service-connected psoriatic arthritis of the bilateral hands and feet.

a.  The examiner should assess the severity of the arthritis of the Veteran's hands and feet (to include ranges of motion and frequency of flare-ups) and, to the extent possible, the examiner should also provide an assessment of any resulting limitation of occupational functioning.

b.  The examiner should report the ranges of motion, and note whether motion is further limited by weakened movement, excess fatigability, incoordination, pain, or flare-ups.  Such inquiry should not be limited to muscles or nerves.  

These determinations should, be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups.

c.  The examiner should address whether there are constitutional manifestations of arthritis associated with joint involvement that are totally incapacitating; whether there are less severe manifestations with weight loss, anemia, severe impairment of health; or whether there is definite impairment of health supported by objective findings on examination.

e.  The examiner should note the frequency and length of any incapacitating episodes.

f.  If the examiner is unable to render an opinion without resort to speculation, he or she must provide reasons why the necessary opinion cannot be provided and whether the inability is due to the limits of scientific or medical knowledge or whether additional evidence would permit the opinion to be rendered.  The examiner is advised that the Veteran is competent to report limitations during flare-ups.  

The findings requested in these instructions are needed to evaluate the Veteran's disability in accordance with the criteria contained in the schedule for rating disabilities.

2.  The AOJ should review the examination report to ensure that it contains all the findings requested in this remand. 

3.  If the benefits sought on appeal remain denied, the AOJ should issue a supplemental statement of the case before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2013).


______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs