Citation Nr: 1415514	
Decision Date: 04/09/14    Archive Date: 04/15/14

DOCKET NO.  08-26 452A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for rheumatoid-arthritis, fingers of the right hand (also claimed as bilateral swelling and pain of thumbs).

2.  Entitlement to an initial evaluation in excess of 10 percent for rheumatoid arthritis, fingers of the left hand (also claimed as bilateral swelling and pain of thumbs).

3.  Entitlement to an evaluation in excess of 10 percent for right wrist rheumatoid arthritis.

4.  Entitlement to an evaluation in excess of 10 percent for left wrist rheumatoid arthritis.

5.  Entitlement to an evaluation in excess of 10 percent for right knee rheumatoid arthritis.

6.  Entitlement to an evaluation in excess of 10 percent for left knee rheumatoid arthritis.

7.  Entitlement to an evaluation in excess of 10 percent for right ankle, foot rheumatoid arthritis (also claimed as pain and swelling of-big toes).

8.  Entitlement to an evaluation in excess of 20 percent for vasculitis, left lower extremity (also claimed as left leg injury).

9.  Entitlement to an evaluation in excess of 20 percent for vasculitis, right lower extremity (also claimed as right leg injury).

10.  Entitlement to an evaluation in-excess of 10 percent for Sjogren's syndrome.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran had active military service from March 1981 to March 1985 and from April 1985 to May 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Regional Office (RO) in Albuquerque, New Mexico.  

In January 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO.

The Veteran requested a hearing before a Veterans Law Judge at the RO.  However, in a September 2011 correspondence, the Veteran withdrew her request for a hearing, and has not requested that a new hearing be scheduled.  As such, her hearing request is deemed withdrawn.  See 38 C.F.R. §§ 20.702(e); 20.704(e) (2013).

The Board notes that in a November 2013 rating decision, the RO granted separate noncompensable evaluations for rheumatoid arthritis, ring and little finger, right hand (minor hand) and ring and little finger, left hand (major hand), effective October 3, 2013.  The Veteran has not expressed disagreement with this decision and it is accordingly not before the Board.  See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim is granted during the pendency of an appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability).  Additionally, the noncompensable evaluations assigned for these disabilities are the maximum rating under Diagnostic Code 5230 for limitation of motion of the ring and middle finger.  

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issue of entitlement to an evaluation in-excess of 10 percent for Sjogren's syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.





FINDINGS OF FACT

1.  The Veteran is left handed. 

2.  There is no evidence of ankylosis of the digits of the left or right hands. 

3.  The service-connected rheumatoid-arthritis, fingers of the right hand does not result in any limitation of motion.

4.  The service-connected rheumatoid-arthritis, fingers of the left hand does not result in any limitation of motion.

5.  The Veteran's right wrist rheumatoid arthritis has been manifested by painful motion limited, at worst, to dorsiflexion to 60 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees; the weight of the evidence is against a finding of ankylosis at any time during the course of the appeal.

6.  The Veteran's left wrist rheumatoid arthritis has been manifested by painful motion limited, at worst, to dorsiflexion to 60 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees; the weight of the evidence is against a finding of ankylosis at any time during the course of the appeal.

7.  The Veteran's right knee condition is manifested by pain and tenderness, but not by objective evidence of flexion limited to 30 degrees or less; extension limited to 15 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; or impairment of the tibia or fibula.

8.  The Veteran's left knee condition is manifested by pain and tenderness, but not by objective evidence of flexion limited to 30 degrees or less; extension limited to 15 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; or impairment of the tibia or fibula.

9.  The Veteran's right ankle disability is manifested by pain, slight instability, and a moderate amount of limitation of motion; marked limitation of right ankle motion is not shown.

10.  The Veteran's vasculitis, left lower extremity have not been manifested by stasis pigmentation or eczema

11.  The Veteran's vasculitis, right lower extremity have not been manifested by stasis pigmentation or eczema.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10 percent for rheumatoid-arthritis, fingers of the right hand (also claimed as bilateral swelling and pain of thumbs) have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5228, 5229 (2013).

2.  The criteria for an initial evaluation in excess of 10 percent for rheumatoid-arthritis, fingers of the left hand (also claimed as bilateral swelling and pain of thumbs) have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5228, 5229 (2013).

3.  The criteria for an evaluation in excess of 10 percent for right wrist rheumatoid arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5024, 5215 (2013).

4.  The criteria for an evaluation in excess of 10 percent for left wrist rheumatoid arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5024, 5215 (2013).

5.  The criteria for a rating in excess of 10 percent the Veteran's right knee rheumatoid arthritis disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5260 (2013).

6.  The criteria for a rating in excess of 10 percent the Veteran's left knee rheumatoid arthritis disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5260 (2013).

7.  The criteria for a disability rating in excess of 10 percent for the Veteran's right ankle rheumatoid arthritis disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5271 (2013).

8.  The criteria for a disability evaluation in excess of 20 percent for vasculitis, left lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Codes 7199- 7120 (2013).

9.  The criteria for a disability evaluation in excess of 20 percent for vasculitis, right lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Codes 7199-7120 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In this appeal, the RO provided notice to the Veteran in a November 2005 letter, prior to the date of the issuance of the appealed September 2006 rating decision.  The November 2005 letter explained what information and evidence was needed to substantiate a claim for increased ratings, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

The Veteran was not provided with notice regarding effective dates.  The Board finds, however, that any error in providing notice was nonprejudical to the Veteran.  As explained below, the Board has determined that an increased rating is not warranted for the Veteran's claimed disabilities.  Therefore, no effective date for higher ratings will be assigned, and the failure to provide notice concerning the effective-date element of the claim was no more than harmless error.

Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted for rheumatoid-arthritis, fingers of right hand and left hand and the initial ratings and effective dates have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of  May 2001, May 2002, April 2004, January 2006, March 2006, October 2011 and October 2013 VA examinations as well as the August 2006 VA addendum opinion.  The May 2001, May 2002, April 2004, January 2006, March 2006, October 2011 and October 2013 VA examination and August 2006 VA addendum opinion reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  As such, the Board finds that the May 2001, May 2002, April 2004, January 2006, March 2006, October 2011 and October 2013 VA examination and August 2006 VA addendum opinion reports are sufficient upon which to base a decision with regard to these claims.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran.  The Board finds that no additional RO action to further develop the record on the claims is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

General Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). 

Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013).  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2013).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. §4.7 (2013).

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 (2012), pertaining to functional impairment.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  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 provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. § 4.40 (2013). 

The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 

Handedness for the purpose of a dominance rating is determined by the evidence of record, or by testing on VA examination.  See 38 C.F.R. § 4.69 (2013).  Only one hand is considered dominant.  The evidence of record establishes that the Veteran is left-handed.

Factual Background

The Veteran underwent a VA examination in May 2001.  The examiner noted a medical history significant for migratory arthralgia and arthritis with swollen painful joints that was described on one occasion as polyarthralgia.  This was associated with rheumatoid arthritis and the Sjogren's syndrome and involved the hands, wrists, shoulders, ankles, lower back and feet.  She continued to have intermittent swelling and redness of the synovium of her joints of her hands, feet and knees.  She has taken frequent courses of steroids as well as other medications.  On examination, there was full range of motion of her upper extremities.  There was no edema or effusion in any of the joints.  There was normal sensitivity to pinprick in the hands.  The diagnosis was rheumatoid arthritis, involving hands, shoulders, knees, ankles, feet, and lower back.  The examiner noted that at the time of the examination, she had been on steroids for a long period of time and most of the swelling and signs of arthritis were no longer present. 

The Veteran underwent a VA examination in May 2002.  She was re-evaluated as she presented with complaints of a re-exacerbation of her arthritis and arthralgia which was associated with a reduction in her steroids.  She had polyalthralgia.  She reported intermittent redness and heat and swelling which was exacerbated whenever her primary care provider reduced her steroids.  Her current treatment included Prednisone, Plaguenil and cyclobenzaprine.  Exacerbation of her arthritis generally occurred when they attempted to reduce the Prednisone level.  There was no active infection.  There were no constitutional symptoms of bone disease.  She was a college student and stated that her arthralgia did interfere with her somewhat but she seemed to have adjusted to the pain.  On examination, there was no evidence of deformity, angulation, false motion, shortening or interarticular involvement.  There were no signs of malunion or nonunion.  The hands themselves were inflamed but the joints were not swollen.  The hands did not appear tender.  She apparently had an increase in her steroids recently and this reduced many of the signs of arthritis that were present prior to her increase in Prednisone.  There was no ankylosis and she had a full range of motion of all of her joints without any distress.  The diagnosis was rheumatoid arthritis exacerbated by decreasing steroids.  The examiner noted that the Veteran's steroids had been increased and her symptoms had started to subside.

A January 2004 VA treatment note indicated that the Veteran noted some recurrence of her erythematous lesions in the lower extremities.  She reported significant erythema, morning stiffness for about one hour and some mild fatigue.  She had noted her hands to be somewhat swollen.  A musculoskeletal examination revealed minimal synovitis in the small joints of the hands.  A skin examination showed some little papules in upper extremities and some mild erythematous lesions and petechiae in lower extremities.

The Veteran underwent a VA examination in April 2004.  The Veteran reported that since her last VA examination in May 2002, she had problems with dull, aching pain at an intensity of 3/10 in her knees, fingers, wrists and ankles.  She noticed stiffness, swelling, heat, redness and instability.  She reported flare-ups of her bone disease two times a year which were more likely in the allergy seasons.  These flare-ups were characterized by joint pain and swelling along with increased vasculitis in her legs.  Her pain increased from a dull, aching intensity of 3 to a more severe pain of 9 to 10 during the flare-up which typically lasted 2 to 3 days.  There was no current active infection.  The Veteran required help getting dressed during a flare-up.  X-rays of the hands and wrists taken in May 2001 showed normal bone mineralization.  She had a bone scan in May 2004 which showed bone mineral density measurements of .87 and .88 which were below the mean of a normal young person.  The diagnosis was rheumatoid arthritis, steroid dependent; vasculitis, steroid dependent; and Sjogren's syndrome, steroid dependent.

A November 2004 VA treatment report noted no significant synovitis in any areas but some tenderness in fibromyalgia points was noted.  The diagnosis was systemic lupus erythematosus and Sjogren's syndrome.

A March 2005 VA treatment note reported a completely normal range of motion of all the joints.  There was some diffuse swelling in the hands with some mild synovitis and she was complaining of Raynaud's phenomenon.  She had crepitus in the shoulders and knees and some mild tenderness in the ankles but her range of motion was completely within normal limits.  Her skin showed some areas of post inflammatory darkening in the lower extremities with some livedo reticularis noted.

The Veteran underwent a VA examination in January 2006.  The examiner noted that the Veteran had vasculitis that began in 2000.  She had Raynaud's phenomenon with affected the digits of the upper and lower extremities.   Symptoms of a Raynaud's episode were color changes and pain.  These episodes lasted between 15 and 30 minutes and occurred less than once per week.  On examination, there had been no ulceration but there was mottling and purpura of both lower legs.  The diagnosis was leukocytoclastic vasculitis, manifest as Raynaud's phenomenon and skin mottling.

Regarding her joints, the examiner noted that after receiving a diagnosis of rheumatoid arthritis she was started on Prednisone and soon after was given Methotrexate, which was not effective and caused a rash and other side effects.  She had tried various anti-inflammatory agents including methotrexate, Immuran, Plaquenil, Dapsone and had side effects from all of these.  She remains on Prednisone and Tramadol for pain.  She had a rash in the neck and lower legs and bruised easily.  The course since her treatment has been intermittent with remissions.  She had functional limitations with standing and walking as she could stand for 15-30 minutes and was able to walk more than 1/4 mile but less than 1 mile.  There was no deformity, giving way or stability.  There was pain and stiffness in the hands, knees, wrists ankles and feet.  There was no weakness or episodes of discoloration or sublaxation.  There were moderate flare-ups of joint disease that occurred every 1 to 2 months which lasted 3 to 7 days.  The flare-ups impaired walking and the use of hands and she had swelling and tenderness.  On examination, her right and left wrists had dorsiflexion of 0 to 60 degrees and palmar flexion from 0 to 80 degrees with no additional loss of motion on repetitive use.  The Veteran's right and left knees had 0 degrees of extension with no additional loss of motion on repetitive use.  There was no grinding, snapping or instability.  Her left and right ankles had dorsiflexion of 0 to 20 degrees and plantar flexion of 0 to 45 degrees with no additional loss of motion on repetitive use.  There was no joint anklyosis and no instability.  The diagnosis was rheumatoid arthritis with Sjogren's syndrome; vasculitis; Raynaud's phenomenon; chronic Prednisone use; and intolerance to multiple medications.

The Veteran underwent a VA examination in March 2006.  There was pain in her fingers and hands but no abnormal motion and no deformity.  There were severe flare-ups every 2 to 3 weeks that lasted 3 to 7 days.  She reported that she increased the dose of her Prednisone during severe attacks so that she could continue her work.  She had normal gait and no ankylosis was present.  On examination, her right wrist had dorsiflexion from 0 to 70 degrees, palmar flexion had from 0 to 80 degrees, ulnar deviation had 0 to 45 degrees and redial deviation was from 0 20 degrees.  There was no additional loss of motion on repetitive use due to pain, fatigue, weakness or lack of endurance.  Her left and right wrists had dorsiflexion from 0 to 70 degrees, palmar flexion had from 0 to 80 degrees, ulnar deviation had 0 to 45 degrees and redial deviation was from 0 to 20 degrees.  There was no additional loss of motion on repetitive use due to pain, fatigue, weakness or lack of endurance for either the left or right wrist.   The joints of both hands were tender but there was no warmth or swelling.  She had full range of motion and no wrist pain. 

Her left and right ankles had dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 45 degrees with no additional loss of motion on repetitive use due to pain, fatigue, weakness or lack of endurance.  Her joints of both feet were tender and warm but there was no swelling and she had full range of motion and no pain.  The diagnosis was rheumatoid arthritis of multiple joints.  She was responding to Prednisone when she had acute attacks.  This disability decreased her mobility, decreased her manual dexterity and caused her problems with lifting, carrying and pain.

In an August 2006 VA addendum opinion, the examiner noted that the Veteran had a complex autoimmune disease manifested by joint and vascular symptoms with multiple diagnoses by rheumatologists and by her primary care provider.  She had a positive rheumatoid factor with diagnoses of rheumatoid arthritis with multiple treatment modalities.  Prednisone seemed to work.  She had Sjogren's syndrome associated with the rheumatoid arthritis that was manifested by chronic dryness of the mouth, nose and eyes as well as vasculitis.  There currently did not appear to be any renal, gastric or lymphatic involvement.  A biopsy showed leukocycolastic vasculitis with symptoms of Raynaud's phenomenon.  She had a positive AMA which was suggestive of Stemid Lupus Erythematosis but the working diagnosis for most of her providers was rheumatoid arthritis with associated Sjogren's syndrome.  When seen by the examiner in January 2006, she had tenderness hand signs of symmetrical synovitis or tendonitis in the wrists, knees, ankles, cervical spines and feet bogginess of MCP and PIP joints of hands.  However, she had full range of motion of all joints except flexion and extension of the wrists which were from 0 to 60 degrees and rotation of the cervical spine which was from 0 to 45 degrees.  The examiner did not record the knee flexion or the lateral flexion of the neck.  When seen by this examiner in March, 2006, she had symmetrical tenderness of the ankles, wrists, hands with full range of motion of these joints with the exception of symmetrical decrease in ankle flexion which was from 0 to 10 degrees and limited by pain with no change noted with repetitive movement.  There was no pain or limitation in range of motion of the knees.  The examiner noted that the Veteran was taking Prednisone and Plaquenil at the time.  The examiner commented that Prednisone is effective and did reduce the extent of the arthralgia found during the examination.

The examiner indicated that the Veteran had an autoimmune, vascular disease characterized by remissions and exacerbations.  She could be totally incapacitated during the acute phase and almost normal during a remission.  She had multiple joint involvement and not all joints are involved at any given time which was the nature of the disease.  The disease was disabling because of joint pain related to connective tissue inflammation that limited weight bearing mobility, manipulative use of the hands and her ability to bend and lift articles.  The range of motion could be normal with or without pain or could be limited depending on the severity of the acute attack.  The effectiveness of various therapeutic modalities carried and treatment could be problematic.  The DeLuca criteria for these joints have been negative during the limited time in clinic.  The Veteran usually has pain throughout the entire range of motion of any affected joint in a clinical examination setting but may have limitations in range of motion after 4 to 6 hours of work during an acute attack.

In a July 2006 VA treatment note, the Veteran reported that she had very little pain and almost no significant joint swelling, redness or warmth as a result of being placed on Humira.

A May 2007 VA treatment note reported an exacerbation of symptoms which required a high dose of Prednisone.  A musculoskeletal examination showed mild sclerodactyly in both hands with some minimal chronic synovitis and sometimes Raynaud's phenomenon.  Trace dependent edema of the lower extremities was noted.  A neurological examination was nonfocal.  She still had mild redness of the neck but denied any other rashes.

A May 2007 VA rheumatology outpatient note reflected a diagnosis of Sjogren's syndrome, rheumatoid arthritis and systemic lupus erythematosus.  A musculoskeletal examination demonstrated diffuse swelling of the hands with Raynaud's.  Synovitis was noted around the ankles but no place else.  Her range of motion was normal.  The physician noted that the Veteran had significant Sjogren's type symptoms.

An October 2007 VA treatment report noted that the Veteran reported mild interim malaise and fatigue.  She noted a persistent sensation of pain and swelling in both hands with some morning stiffness for about an hour.  She required 20-30mg of Prednisone every day and noted significant worsening of pain in the right upper extremity.  A musculoskeletal examination showed minimal chronic synovitis in the small joints of both hands, especially in the wrists.  There was some tenderness in the lower lumbar area and minimal tenderness around the ankles.  There was crepitus in the knees but no dependent edema, cyanosis or clubbing.  The diagnosis was Sjogren's symptoms and rheumatoid arthritis.  The physician noted that the Veteran had been on multiple medications that had not been very helpful. 

A September 2008 VA treatment report indicated that the Veteran felt better since an increase in her medication.  She reported short lived morning stiffness and no major fatigue.  She did not note any major redness, warmth or swelling in the joints, except in the feet, where she felt there was some pain, especially if she stood for a long time.  The diagnosis was rheumatoid arthritis with good control of symptoms at this time.

A September 2009 VA treatment report noted that the Veteran was last seen in May and since that time had felt that her Remicade had helped.  She indicated that she had short-lived morning stiffness but no major fatigue.  She had no major swelling.  She still had pain in the base of her thumbs bilaterally and occasionally in her neck but the pain in general was well controlled.  An examination showed some tenderness to palpation at the base of the thumbs bilaterally but no significant synovitis noted in the hands, wrists, elbows, shoulders, knees or ankles.  She did have some minimal dependent edema in both feet and there were still chronic changes of vascular damage in the lower extremities.

The Veteran underwent a VA examination in October 2011 to address her left ankle disability.  Parenthetically, the Board notes that an evaluation of this disability is currently not before the Board.  The examiner noted that the Veteran had rheumatoid arthritis in both ankles and that she was currently being treated with Remicaid, Plaquenil, and Prednisone.  When she was on her feet a long time, she had flare-ups which consisted of bilateral swelling, burning and pain in her feet.  Plantar flexion of the right ankle was from 0 to 35 degrees with pain beginning at 35 degrees.  Dorsiflexion was 20 degrees or greater with no objective evidence of painful motion.  She did not have any additional loss in range of motion of the right ankle following repetitive-use testing.  The Veteran had weakened movement, swelling, excess fatigability, and interference with sitting, standing and weight bearing.  Muscle strength and laxity of the ankle was normal.  There was no ankylosis.  X-rays demonstrated moderately extensive soft tissue swelling or subcutaneous adipose around the ankles on each side.  There were also miniscule plantar calcaneal spurs. 

The Veteran underwent a VA examination in October 2013.  The examiner noted that the Veteran had a diagnosis of vasculitis of the bilateral lower extremities.  She had periodic flare-ups of Sjogren's vasculitis rash of the lower extremities.  Her last flare-up occurred in the spring of 2013 which necessitated an increase of Prednisone to 60mg.  Eventually, the Prednisone was slowly tapered back to the current 10mg and the Veteran was without current rash or vasculitis symptoms.  She also had bilateral lower leg purpuric discoloration and subQ nodules.  Her vasculitis did not impact her ability to work.

Regarding her rheumatoid arthritis, the examiner noted that the Veteran had switched to Orencia, a rheumatoid arthritis medication, 4 months ago which resulted in considerable improvement in her rheumatoid arthritis pain and stiffness.  She required continuous medication for her condition.  She did not have weight loss or anemia as a result of her condition but did experience pain in her wrists, hands/fingers, knees and ankles as well as limitation of motion.  She had exacerbations once a year which were not incapacitating.  Once a year she had incapacitating episodes as during peak exacerbations she had problems ambulating and performing hand/wrist manipulations which occurred most recently in April 2013.  She did not have constitutional manifestations associated with active joint involvement which were totally incapacitating.  The Veteran's condition affected her ability to work.

The Veteran had mild pain and stiffness and ankles the past 2 months since starting
Orencia dmard infusions about 4 months ago.  Her characteristic flare-ups of rheumatoid arthritis produced variably increased pain and stiffness which was worse with weight bearing activities.

On examination, her right and left ankles had plantar flexion of 45 degrees or greater and dorsiflexion of 20 degrees or greater with no objective evidence of painful motion.  There was no additional limitation of range of motion in the ankle following repetitive use and she did not have functional loss and/or functional impairment of the ankles.  There was no tenderness or pain on palpation.  Her muscle strength was normal.  There was no laxity and no ankylosis.  The examiner noted that October 2011 x-rays demonstrated moderately extensive soft tissue swelling or subcutaneous adipose around the ankles on each side and miniscule plantar calcaneal spurs.  With peak exacerbations, the Veteran had difficulty with the completion of all weight bearing activity.

Regarding her hands and fingers, it was noted that she had rheumatoid arthritis of the fingers in both hands.  She was currently on Orencia infusions and long term Prednisone as well as plaquenil.  Only her thumbs were painful and stiff.  Prior to April 2013, her metatarsophalangeal (MCP) joints and proximal interphalangeal (IP) joints were periodically swollen and hurt.  There was no limitation of motion or evidence of painful motion for any fingers or thumbs.  She was able to perform repetitive use testing and there was no additional limitation of motion of any of the fingers after the test.  There was no gap between the thumb pad and the fingers post-test and there was no gap between any fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-test.  There was no limitation of extension of the index finger or long finger post-test and the Veteran did not have any functional loss or functional impairment of any of the fingers or thumbs and did not have any loss of motion of the fingers or thumbs after repetitive use testing.  She did not have any pain or tenderness on palpation of the soft tissue of either hand, thumbs or fingers.  Hand grip was 5/5 and there was no ankylosis of the thumb and/or fingers.  Regarding her ability to work, hand/wrist forceful activities were difficult or impossible to perform with flares of rheumatoid arthritis involving the hands/wrists.

Regarding the Veteran's knees, the examiner noted that the Veteran had bilateral knee rheumatoid arthritis.  She was currently without significant knee pain but did have flare-ups.  Flexion of the right and left knee was 140 degrees or greater and there were no degrees of hyperextension.  There was no objective evidence of painful motion.  There was no additional limitation in range of motion in either knee or lower leg following repetitive-use testing.  There was no functional loss and/or functional impairment of the knee or lower leg. There was no pain on palpation of either knee.  Muscle strength testing was normal.  Knee stability and instability tests were normal.  There was no evidence or history of recurrent patellar subluxation/dislocation.  The Veteran's knee disabilities did not impact her ability to work.

The Veteran also had a diagnosis of bilateral wrist rheumatoid arthritis.  She had no current flare-ups of rheumatoid arthritis pain/stiffness of the wrists since 1-2 months ago.  Prior to April 2013, her wrist joints periodically swelled and hurt with moderated or greater limitations in motions and functional activities such as firm grip.  Palmar flexion of the bilateral wrists was from 0 to 80 degrees or greater without evidence of painful motion.  Dorsiflexion of the bilateral wrists was from 0 to 60 degrees or greater without evidence of painful motion.  After repetitive use testing, there was no additional loss of motion.  She did have functional loss of the wrists as there was less movement than normal in both wrists.  There was no pain or tenderness on palpation.  Muscle strength testing was normal.  There was no ankylosis.  The Veteran's wrists did not impact her ability to work.


I.  Rheumatoid Arthritis

From May 1, 2001 to April 7, 2004, the Veteran had a 40 percent disability evaluation under Diagnostic Code 5002 for rheumatoid arthritis involving hands, shoulders, knees, ankles, feet and lower back.  However, in the September 2006 rating decision, the RO noted that by evaluating each affected joint separately, the Veteran is provided with a higher combined evaluation.  Accordingly, the RO separated the affected joints and applied separate evaluations.   

Rheumatoid arthritis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5002.  Under Diagnostic Code 5002, rheumatoid arthritis is assigned various ratings based on whether the arthritis is an active process or manifested by chronic residuals.  38 C.F.R. § 4.71a, Diagnostic Code 5002.  For arthritis as an active process, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement, totally incapacitating.  Id.  A 60 percent rating is assigned where manifestations less than commensurate with criteria for a 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods.  Id.  A 40 percent rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year.  Id.  One or two exacerbations a year in a well-established diagnosis is evaluated as 20 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5002 (2013).

Diagnostic Code 5002 provides that rheumatoid arthritis in an inactive phase will be rated on the basis of 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.  Id.  

      A. Fingers of Left and Right Hand

Initially, the Board notes both the May 2002 and April 2004 VA examiners specifically noted that the Veteran's rheumatoid arthritis had no current active infection.  Additionally, subsequent VA treatment records and VA examinations did not indicate at any point that the Veteran's rheumatoid arthritis was in an active process.  However, even considering that the Veteran's rheumatoid arthritis was in an active phase and the October 2013 VA examiner found that the Veteran had exacerbations once a year, an initial evaluation in excess of 10 percent is not warranted.  Total incapacitation as a result of her rheumatoid arthritis is not shown. 

As noted above, the September 2006 rating decision, the RO, in an effort to provide the Veteran with a higher combined evaluation, evaluated each affected joint separately.  Under Diagnostic Code 5002, the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis.  Thus, even though the Veteran has exacerbations once a year which would merit a 20 percent rating under Diagnostic Code 5002, as each affected joint is rated separately to provide a higher combined evaluation, initial ratings in excess of 10 percent based on the active process regulations are not warranted.

Accordingly, in its September 2006 rating decision, the RO assigned separate evaluations for the fingers of each hand at a 10 percent disability evaluation based on the criteria for arthritis involving a group of minor joints under Diagnostic Codes 5220-5002.

Under Diagnostic Code 5002, rheumatoid arthritis in an inactive phase will be rated on the basis of 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.  

When two or more digits of the same hand are affected by any combination of amputation, ankylosis or limitation of motion, the disability is to be rated at that level that best represents the overall disability, i.e., amputation, unfavorable ankylosis, favorable ankylosis, or limitation of motion, assigning the higher level of evaluation when the level of disability is equally balanced between two levels. 38 C.F.R. § 4.71a, Note (2) preceding Diagnostic Code 5216.

The Board notes that Diagnostic Codes 5220 to 5223 pertain to favorable ankylosis of multiple digits.  Under Diagnostic Code 5220, a 40 percent rating for the non-dominant hand and a 50 percent rating for the dominant hand is warranted if the evidence shows favorable ankylosis of five fingers on the affected hand.  

The Board notes that other applicable rating criteria for the Veteran's hand disabilities are under Diagnostic Code 5216 to 5219 for unfavorable ankylosis of the multiple digits and Diagnostic Code 5224 to 5227 for ankylosis of the individual digits.  

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).  As such, the entirety of the Diagnostic Codes for ankylosis (5218, 5219, 5222, 5223, 5226 and 5227) will not be reproduced here, as they are not applicable.  

In this case, as the Veteran does not have ankylosis, the Board notes that the applicable diagnostic codes are Diagnostic Code 5228 and Diagnostic Code 5229 as limitation of motion of individual digits is addressed in Diagnostic Codes 5228-5230.

Under Diagnostic Code 5228, limitation of motion of the thumb provides a non-compensable rating (zero percent) for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71.  The ratings are the same regardless of whether the hand affected is the major or minor.

Under Diagnostic Code 5229, Under Diagnostic Code 5229, a 10 percent evaluation is authorized if the gap between the fingertip and the proximal transverse crease of the palm is one inch (2.5 cm) or more with the finger flexed to the extent possible or if extension is limited by more than 30 degrees.  Limitation of motion of the index or long finger warrants a noncompensable evaluation if the gap between the fingertip and the proximal transverse crease of the palm is less than one inch (2.5 cm) with the finger flexed to the extent possible and extension is limited by no more than 30 degrees.  

Under Diagnostic Code 5230, limitation of motion of the ring or little finger is considered noncompensably disabling.  38 C.F.R. § 4.71a.

There are rules that apply in evaluating the severity of ankylosis or limitation of motion of single or multiple digits of the hand.  For instance, for the index, long and ring fingers, zero degrees of flexion represents the fingers 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 MCP and PIP joints flexed to 30 degrees and the thumb abducted and rotated so that the thumb pad faces the finger pads.  Joints in these positions are considered in a favorable position.  For such fingers, the MCP joint has a range of zero to 90 degrees of flexion; the PIP joint has a range of zero to 100 degrees of flexion; and the DIP joint has a range of zero to 70 or 80 degrees of flexion.  38 C.F.R. § 4.71a, Note (1) preceding Diagnostic Code 5216.

After a review of all the evidence in this Veteran's case, the Board finds that a preponderance of the evidence is against the Veteran's appeal for initial ratings in excess of 10 percent for service-connected rheumatoid-arthritis, fingers of right and left hands (also claimed as bilateral swelling and pain of thumbs).

Initially, as noted above, the Veteran does not have ankylosis.  The evidence also demonstrates that while the Veteran has periodically experienced pain and swelling, at no point in time has the Veteran experienced a loss of range of motion in the joints of her fingers or thumbs.  Specifically, a March 2006 VA examination noted pain in her fingers and hands but no abnormal motion and no deformity while the most recent VA examination in October 2013 found that there was no limitation of motion or evidence of painful motion for any fingers or thumbs.  

The Board also notes that a 10 percent evaluation for limitation of motion of the under Diagnostic Code 5229 is the maximum rating available for this code.   As previously noted, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). ). As such, the pain experienced on motion has been considered in assigning this 10 percent evaluation.

The Board notes that a 20 percent rating is available under Diagnostic Code 5228 for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  However, a 20 percent rating is not warranted as the October 2013 VA examination specifically found that there was no gap between the thumb pad and the fingers post-test and there was no gap between any fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-test.  

Furthermore, the Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07.  The competent medical evidence reflects that the assigned 10 percent ratings properly compensate the Veteran for the extent of functional loss resulting from any such symptoms.  

Even taking pain on motion into consideration, as required by DeLuca, the Veteran has demonstrated full extension and full flexion of the joints of her fingers on her hands.  Additionally, in his August 2006 VA addendum opinion the VA examiner noted that the DeLuca criteria for these joints have been negative during the limited time in clinic, while the October 2013 specifically found that the Veteran did not have any functional loss or functional impairment of any of the fingers or thumbs and did not have any loss of motion of the fingers or thumbs after repetitive use testing.

The record also demonstrates that the Veteran experienced flare-ups of rheumatoid arthritis in her left and right hands which were usually characterized by pain and swelling.  These flare-ups often necessitated an increase of Prednisone to 60mg which was eventually tapered back once the flare-ups resolved.

The evidence also demonstrates that the flare-ups are relatively infrequent and fairly short in duration.  Therefore, even if the additional limitation of motion during such flare-ups were extreme, based on the frequency and duration of such episodes, the Board finds that the overall impairment resulting from her bilateral hand disability would still more closely approximate no more than a 10 percent rating for each hand.

With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent for either or both hand as contemplated by the holding in Deluca. 

Therefore, the preponderance of the evidence is against the Veteran's claim that she is entitled to an initial evaluation in excess of 10 percent rating for rheumatoid-arthritis, fingers of right and left hands (also claimed as bilateral swelling and pain of thumbs).  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


	B.  Left and Right Wrists

The Veteran filed a claim for an increased rating in September 2005.

The Veteran's left and right wrist disabilities are currently rated at 10 percent disability evaluations under Diagnostic Code 5215 applicable to limitation of motion of the wrist.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2013). 

The Board notes that a normal range of motion in the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees.  See 38 C.F.R. § 4.71, Plate I (2013). 

Under diagnostic code 5215, a 10 percent rating is warranted for either the major or minor limb when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2013).  A 10 percent rating is the only, and therefore the maximum, rating available under this code.  In the instant case, the Veteran is in receipt of the maximum 10 percent evaluation under this diagnostic code, and the Board, therefore, will consider whether the Veteran is entitled to a greater rating under other diagnostic codes. 

Diagnostic code 5214 provides higher evaluations when ankylosis of the wrist is present.  A 50 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the major wrist.  A 40 percent rating is warranted when there is ankylosis of the major wrist in any other position, except favorable.  A 30 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the major wrist.  See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2013).

The Board notes that there are additional diagnostic codes for the evaluation of wrist and forearm disabilities.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5205-5213 (2013).  The medical evidence of record, however, does not indicate the Veteran's service-connected disabilities include any of the symptomatology associated with the wrist and forearm disorders described in those diagnostic codes.

As noted above, a 10 percent evaluation is the maximum evaluation allowed under Diagnostic Code 5215.  As the Veteran is already assigned a 10 percent rating under this diagnostic code, an increased rating cannot be assigned under this diagnostic code. 

When considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5214 (ankylosis of the wrist) and 5307 (flexion of wrist and fingers) are not applicable because the medical evidence does not show that the Veteran has any of those conditions.  Specifically, no treatment record or any VA examination report has demonstrated any objective finding of ankylosis, muscle injury or nonunion or malunion of the radius or ulna.  Furthermore, sensory and neurological testing of the right upper extremities was normal.  Therefore, the Diagnostic Codes relating to neurological impairment are also not applicable in this case.

With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board notes the Veteran's complaints of pain, stiffness, and flare-ups of joint disease.  However, the Veteran is already receiving a 10 percent evaluation under Diagnostic Code 5215 for limitation of motion, which is the maximum evaluation allowed for limitation of motion of the wrist absent ankylosis. 

Regarding the complaints of flare-ups of joint disease, the October 2013 VA examiner noted that prior to April 2013, the Veteran's wrist joints periodically swelled and hurt with moderated or greater limitations in motions and functional activities such as firm grip.  However, the examiner also noted that she had no current flare-ups of rheumatoid arthritis pain/stiffness of the wrists since 1-2 months ago.  Additionally, while she did have functional loss of the wrists, after repetitive use testing, there was no additional loss of motion.  

Thus, based on the evidence above, the flare-ups are relatively infrequent, fairly short in duration and appear to have been improved greatly by the Veteran's medications.  Therefore, with no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent for either wrist disability as contemplated by the holding in Deluca. 

Thus, the Board finds that any pain associated with the Veteran's disability is encompassed in the current evaluations.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013).

As the preponderance of the evidence is against the claims for increased ratings, the benefit-of-the-doubt rule does not apply, and the claims for a rating in excess of 10 percent for a right and left wrist disability must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

	
      
C. Right and Left Knees

The Veteran filed a claim for an increased rating in September 2005.

The Veteran's left and right knee disabilities are currently rated at 10 percent disability evaluations under Diagnostic Code 5260 applicable to limitation of flexion of the knee.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). 

Limitation of flexion is rated as follows: flexion limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013).

Limitation of extension is rated as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013).

Separate evaluations may be assigned for limitation of flexion and extension of the same joint.  See VAOPGCPREC 09-04 (September 17, 2004).  Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.  Id.  The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2013).

VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257; evaluation of knee dysfunction under both codes does not amount to pyramiding under 38 C.F.R. § 4.14 . See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998).  Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability.  See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997).

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for either the Veteran's service connected right knee or left knee disability. 

While the Veteran had complaints of pain and tenderness, the evidence reflects no loss of motion as the recorded range of motion for both the right and left knee was 140 degrees of flexion with no loss of extension.  As the evidence does not show limitation of flexion to 30 degrees or less, a rating in excess of 10 percent for either knee is not warranted under Diagnostic Code 5260.  38 C.F.R. § 4.71, Plate II.

Additionally, as the record does not show extension limited to 10 degrees or greater, a separate compensable evaluation based on limitation of extension under Diagnostic Code 5261 is also not warranted for either knee.

While VA examiners have noted the Veteran's complaints of pain, these complaints do not result in additional functional impairment that would result in the limitation of motion to a level contemplated by a rating in excess of 10 percent.  

While the Board notes that the October 2013 VA examiner indicated that the Veteran was currently without significant knee pain but did have flare-ups, the Board has taken this into account.  However, even during flare-ups the pain did not result in the functional equivalent of flexion to 45 degrees or less or extension to 10 degrees or more as contemplated by compensable ratings.  Additionally, the October 2013 VA examiner specifically determined that the Veteran did not have additional limitation in range of motion of either knee and lower leg following repetitive use testing.  The Board finds that the 10 percent evaluation assigned for each knee adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of her left and right knee disabilities.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  Thus, higher evaluations based on functional loss are not warranted.  See DeLuca, supra.

Additionally there is no showing of instability as the October 2013 VA examination report showed no instability, even upon specific instability testing.  As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted for either knee.

The Board has also considered other diagnostic codes to determine if a higher evaluation is warranted.  However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, dislocated semilunar cartilage with frequent locking and effusion into the joint, malunion or nonunion of the tibia and fibula, or genu recurvatum.  Thus, Diagnostic Codes 5256, 5258, 5262, and 5263 do not apply.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262, 5263.  Furthermore, the diagnostic codes applicable to degenerative arthritis and those applicable to analogous conditions are inapplicable.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5024 (2013).  

While the Veteran is competent to report that her disabilities are worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Although the Veteran believes she meets the criteria for a higher disability rating, her complaints and the medical findings do not meet the schedular requirements for evaluations in excess of 10 percent, as explained and discussed above.

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
      
      D.  Right Ankle
      
The Veteran filed a claim for an increased rating in September 2005.

The Veteran's right ankle disability is currently rated at 10 percent disability evaluations under Diagnostic Code 5271applicable to limitation of motion of the ankle.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2013). 

Under Diagnostic Code 5271, a 10 percent rating is warranted for a moderate limitation of ankle motion, and a 20 percent rating is assigned for a marked limitation.  The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for the Veteran's service connected right ankle disability. 

As set forth above, in order for the Veteran's right ankle disability to warrant an evaluation in excess of 10 percent, the evidence must show a marked limitation of ankle motion.  A marked level of impairment is not demonstrated by the record as the January 2006 and most recent VA examination in October 2013 reflected that the Veteran had full range of motion of her right ankle.  Additionally, the March 2006 VA examination report and the October 2011 VA examination report reflected only slight limitation of motion as the March 2006 examination revealed dorsiflexion from 0 to 10 degrees and the October 2011 VA examination revealed as plantar flexion of the right ankle was from 0 to 35 degrees.

Indeed, even taking into account the Veteran's complaints of pain, the Board finds that a higher rating than 10 percent is not warranted as all of the examiners noted that there was no additional limitations after three repetitions of range of motion.   Thus, there is no objective evidence that Veteran has functional loss or additional limitation of ankle motion due to pain, weakness, and atrophy of a severity to afford her an evaluation higher than 10 percent.  See DeLuca; supra.

The Board notes that the Veteran has experienced flare-ups regarding her right ankle.  The January 2006 VA examiner noted that there were moderate flare-ups of joint disease that occurred every 1 to 2 months which lasted 3 to 7 days while the October 2013 VA examiner noted that flare-ups increased her stiffness and pain especially during weight bearing activities.  However, the October 2013 VA examiner also noted that the Veteran had exacerbations once a year which were not incapacitating.  .  

Therefore, even if the additional limitation of motion during such reported flare-ups were extreme, based on the reported functionality of the Veteran, the Board finds that the overall impairment resulting from her right ankle disability would still more closely approximate no more than a 10 percent rating.

Given this evidence, entitlement to an evaluation in excess of 10 percent is not warranted at any time during the appeal period for the right ankle disability.  As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

II.  Vasculitis

The Veteran filed a claim for an increased rating in September 2005.

The Veteran's vasculitis, left and right lower extremity disabilities are currently rated at 10 percent disability evaluations under Diagnostic Codes 7199-7120.  In this regard, the Board notes again that 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.  38 C.F.R. § 4.27 (2013).

Here, the Veteran's service-connected left and right lower extremity disabilities are rated as analogous to varicose veins under Diagnostic Code 7120.  38 C.F.R. § 4.20 (2013). 

Under Diagnostic Code 7120, a 10 percent rating is assigned for intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or by compression hosiery.  A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of an extremity, with or without beginning stasis pigmentation or eczema.  A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration.  A 100 percent rating is warranted for massive board-like edema with constant pain at rest.  38 C.F.R. §4.104, Diagnostic Code 7120.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's service connected vasculitis, left and right lower extremity disabilities. 

As set forth above, in order for the Veteran's vasculitis, left and right lower extremity disabilities to warrant an evaluation in excess of 20 percent, the evidence must show persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.

A March 2005 VA treatment note showed that the Veteran's had some areas of post inflammatory darkening in the lower extremities with some livedo reticularis noted while the January 2006 VA examination revealed no ulceration but mottling and purpura of both lower legs. A March 2007 VA treatment report noted trace dependent edema of the lower extremities and a September 2009 VA treatment note reported some minimal dependent edema in both feet and chronic changes of vascular damage in the lower extremities.  However, the most recent VA examination in October 2013 specifically noted that while the Veteran had vasculitis of the bilateral lower extremities, bilateral lower leg purpuric discoloration and subQ nodules and had periodic flare-ups of Sjogren's vasculitis rash of the lower extremities, the Veteran was without current rash or vasculitis symptoms as a result of an increase of Prednisone.

While the evidence demonstrates that the Veteran had edema, it does not show that findings for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  Again, an evaluation in excess of 20 percent requires either evidence of stasis pigmentation or eczema in addition to persistent edema.  Therefore, the criteria for a rating in excess of 20 percent evaluation under Diagnostic Code 7120 are not met. 38 C.F.R. § 4.101.

Given this evidence, entitlement to an evaluation in excess of 20 percent is not warranted at any time during the appeal period for the vasculitis, left and right lower extremity disabilities.  As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


III.  Extraschedular Consideration

The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected vasculitis of the bilateral lower extremities and rheumatoid arthritis of the fingers of the bilateral hands, bilateral knees, bilateral wrists and right ankle.   See Bagwell v. Brown, 9 Vet. App. 157 (1966).  Ordinarily, the VA Rating 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).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.21(b) (1) (2013). 

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.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful.  Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned.  Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted.


ORDER

Entitlement to an initial evaluation in excess of 10 percent for rheumatoid arthritis, fingers of the right hand (also claimed as bilateral swelling and pain of thumbs) is denied.

Entitlement to an initial evaluation in excess of 1.0 percent for rheumatoid arthritis, fingers of the left hand (also claimed as bilateral swelling and pain of thumbs) is denied.

Entitlement to an evaluation in excess of 10 percent for right wrist rheumatoid arthritis is denied.

Entitlement to an evaluation in excess of 10 percent for left wrist rheumatoid arthritis is denied.

Entitlement to an evaluation in excess of 10 percent for right knee rheumatoid arthritis is denied.

Entitlement to an evaluation in excess of 10 percent for left knee rheumatoid arthritis is denied.

Entitlement to an evaluation in excess of 10 percent for right ankle rheumatoid arthritis (also claimed as pain and swelling of-big toes) is denied.

Entitlement to an evaluation in excess of 20 percent for vasculitis, left lower extremity (also claimed as left leg injury) is denied.

Entitlement to an evaluation in excess of 20 percent for vasculitis, right lower extremity (also claimed as right leg injury) is denied.


REMAND

Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for entitlement to an evaluation in-excess of 10 percent for Sjogren's syndrome.

The Veteran's Sjogren's syndrome is currently rated at a 10 percent disability evaluation under Diagnostic Codes 6399-6350.  

Here, the Veteran's service-connected Sjogren's syndrome is rated as analogous to Systemic Lupus erythematosus (SLE) under 38 C.F.R. § 4.88b, Diagnostic Code 6350. 

Under Diagnostic Code 6350, SLE warrants a 10 percent disability rating where there are exacerbations once or twice per year or if the condition was symptomatic during the past two years.  A 60 percent disability rating is warranted where there are exacerbations lasting a week or more, two or three times per year.  A 100 percent disability rating is warranted where the condition is acute, with frequent exacerbations, producing severe impairments of health.  See, 38 C.F.R. § 4.88b, Diagnostic Code 6350. 
 
A Note following this diagnostic code states that this condition may be evaluated either by combining the evaluations for residuals under the appropriate system, or by evaluating under Diagnostic Code 6350, whichever method results in a higher evaluation.  Id.

The Veteran underwent a VA examination in October 2013 which noted that the Veteran had been diagnosed with rheumatoid arthritis and Sjogren's syndrome.  The examiner indicated that the Veteran's arthritis involved 1 non-incapacitating exacerbation per year and 1 incapacitating exacerbation per year.  

Although the October 2013 VA examination and opinion clearly addressed the severity of the rheumatoid arthritis, identifying related symptomatology and the frequency of exacerbations; the Board finds that the examination report did not clearly identify whether the Veteran had any other symptoms related service-connected Sjogren's syndrome, nor did the examiner identify whether symptoms of Sjogren's syndrome were acute with frequent exacerbations, producing severe impairment of health.  The Board finds, therefore, that a remand for an additional medical opinion is necessary for rating purposes.

Additionally, the Board notes that the October 2013 VA examiner noted that the Veteran continued to have characteristic dry eyes, mouth and vaginal surfaces secondary to Sjogren's syndrome.  In determining the frequency of the exacerbations of Sjogren's syndrome, the examiner should consider all disabilities associated with the Veteran's Sjogren's syndrome to include dry eyes, mouth and vaginal surfaces.

The Board must therefore find the VA examination report of record inadequate for purposes of evaluating the Veteran's Sjogren's syndrome.  Consequently, the Board finds that a remand for a new VA examination is warranted.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).

The Board believes that a medical examination assessing the current severity of the Veteran's Sjogren's syndrome is necessary to adequately decide this claim. 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  The Veteran should then be afforded a VA examination to determine the severity of her service-connected Sjogren's syndrome.  The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. 

The VA examiner must identify all current symptomatology related to the Veteran's Sjogren's syndrome to include dry eyes, mouth and vaginal surfaces.  The examiner must also state whether the Veteran's symptoms of Sjogren's syndrome include exacerbations lasting one week or more two to three times per year and whether the symptoms are acute with frequent exacerbations producing severe impairment of health.  A complete rationale for all opinions must be provided.

All necessary testing should be completed and any opinions rendered should be accompanied by rationale.

3.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim.  If action remains adverse to the Veteran, provide the Veteran with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs