Citation Nr: 18144600 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-39 896 DATE: October 25, 2018 ORDER Entitlement to a 40 percent rating, but no higher, from February 27, 2013 to February 16, 2017, for migratory polyarthritic inflammatory arthritis, is granted. Entitlement to a 100 percent rating beginning February 16, 2017, for migratory polyarthritic inflammatory arthritis, is granted. Entitlement to a temporary total evaluation, based on convalescence for surgery of service-connected right hip osteoarthritis, is denied. REMANDED Entitlement to an increased rating for surgical scars, associated with internal derangement right shoulder, post rotator cuff, is remanded. FINDINGS OF FACT 1. From February 27, 2013 to February 16, 2017, the Veteran’s migratory polyarthritic inflammatory arthritis manifested with symptom combinations productive of definite impairment of health. 2. Beginning February 16, 2017, the Veteran’s migratory polyarthritic inflammatory arthritis was comorbid with her systemic lupus erythematosus (SLE), causing constitutional manifestations associated with active joint involvement, totally incapacitating. 3. The Veteran was not service-connected for a right hip disability at the time of her surgery; therefore, a temporary total evaluation for right hip surgery may not be awarded as a matter of law. CONCLUSIONS OF LAW 1. From February 27, 2013 to February 16, 2017, the criteria for a 40 percent rating, but no higher, for migratory polyarthritic inflammatory arthritis, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5002 (2017). 2. Beginning February 16, 2017, the criteria for a 100 percent rating, for migratory polyarthritic inflammatory arthritis, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002 (2017). 3. The criteria for a temporary total convalescent rating for right hip surgery are not satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1984 to August 1993. As a threshold matter, the Board notes that, initially on appeal as well, was the issue of service connection for a right hip disability. However, this claim was granted during the course of this appeal and, as such, represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In addition, initially on appeal as well was the issue of service connection for right shoulder nerve damage. This claim was denied in an August 2013 rating decision. In September 2015, an SOC was issued; however, the Veteran’s substantive appeal was limited to issues pertaining to her right hip and her rheumatoid arthritis. Therefore, as the Veteran did not perfect a timely appeal to the rating decision denying entitlement to service connection for a right shoulder disability due to nerve damage, the Board has no jurisdiction to review this claim. 38 U.S.C. § 7105. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, 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, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. The Veteran’s migratory polyarthritic arthritis has been evaluated under Diagnostic Code 5002 for rheumatoid arthritis. Diagnostic Code 5002 provides that rheumatoid (atrophic) arthritis will be rated based on either as an active process or on the basis of chronic residuals, and the higher rating will be assigned. Ratings for rheumatoid arthritis as an active process will not be combined with the residual ratings for limitation of motion or ankylosis. Under Diagnostic Code 5002, rheumatoid arthritis as an active process is to be rated 20 percent for one or two exacerbations a year in a well-established diagnosis; 40 percent for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; 60 percent for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and a 100 percent rating for constitutional manifestations associated with active joint involvement that is totally incapacitating. 1. Entitlement to an increased rating in excess of 20 percent from February 27, 2013 to May 18, 2016, and in excess of 40 percent from May 18, 2016 to December 5, 2017, for migratory polyarthritic inflammatory arthritis. The Veteran seeks a higher rating for her migratory polyarthritic arthritis contending that her current evaluations do not reflect the severity of her condition throughout the entire appeal period. Initially, the Board notes that the Veteran is in receipt of a 100 percent rating for her polyarthritic arthritis from December 5, 2017. As this is a full grant of the benefits sought, there is no case or controversy for the Board to address for the period beginning on December 5, 2017. Accordingly, the Board will only address the appeal period prior to that date. Additionally, with regard to the remaining appeal period, the Board notes that the Veteran is currently in receipt of staged ratings; however, the period on appeal have been incorrectly noted. In the December 2017 Supplemental Statement of the Case (SSOC), the RO noted that the Veteran’s first appeal period began on June 8, 2004 to May 18, 2016, evaluated at 20 percent disabling, and the second period began on May 18, 2016 to December 5, 2017, evaluated at 40 percent disabling. A total rating was awarded as of December 5, 2017. However, the Board finds that the first period on appeal should begin on the date in which the Veteran filed her increased rating claim, namely, February 27, 2013. Procedural background shows that the Veteran was initially service-connected for this condition in a February 2006 rating decision. The Veteran submitted a Notice of Decision (NOD) and a Statement of the Case (SOC) was issued in June 2006. The Veteran did not take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. Therefore, the February 2006 rating decision became final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2017). Consequently, the Veteran’s appeal period with regard to the decision herein, begins February 27, 2013, the date the Veteran filed her claim for an increased rating, and the Board will review evidence pertaining to this issue up to one year prior to this date. Period beginning on February 27, 2013 to February 16, 2017 The Board has thoroughly reviewed the evidence of record and finds that for the period beginning February 27, 2013, to February 16, 2017, the Veteran’s migratory arthritis more nearly approximated the criteria for a 40 percent rating, but no higher, as the evidence shows the Veteran experienced pain in her hands, feet, wrists, and chest, causing symptom combinations productive of definite impairment of health. This finding results in an increased rating for the period from February 27, 2014 to May 18, 2016, and no increase from May 18, 2016 to February 16, 2017. The evidence shows that in February 2012, the Veteran presented for a rheumatologist visit complaining of stiffness for four hours, and joint pains in her hands, feet, elbows, hips, knees, and shoulders. Upon examining the Veteran, the examiner found abnormal findings in her hand, shoulder, hip, and foot examinations. The examiner assessed the Veteran’s symptoms as being moderate and was given a treatment plan. The Veteran received a VA examination in May 2013 for her arthritis. The examiner noted that the Veteran requires continuous use of medications for her condition, to include methotrexate, diclofenac, and plaquenil, but the Veteran has not lost weight due to her condition, and the Veteran does not have anemia attributed to the condition that causes impairment of health. The examiner further noted that the Veteran’s condition causes pain in her wrists, hand/fingers, and foot/toes, all bilaterally, but no limitation of motion was noted. The examiner noted that the Veteran has had one non-incapacitating episode in one year, with the most recent being June 2012, and no incapacitating episodes in the last year. On July 1, 2013, in a primary care visit, the Veteran complained of pain in her hands and feet, particularly her right foot being very painful. She reported that it hurts to type or hit the buttons to roll down the windows in her car. She further reported that her right foot has been hurting for three weeks on the lateral side of her foot. Shortly thereafter, on July 31, 2013, the Veteran presented to the emergency room complaining of right foot pain. She was advised to continue her medications and was referred for a podiatry consult. During her September 2013 podiatry consult, the examiner noted that the Veteran limps guarding the right foot, and the Veteran exhibited pain with palpation at the base of the 5th metatarsal and extending to the mid-shaft. The examiner diagnosed the Veteran with cuboid syndrome and provided an injection for pain relief. In January 2014, the Veteran reported that her injection provided pain relief until December, but she now has more pain in her right foot than she had previously. The examiner noted that her previous pain was at the cuboid, but her current pain is more distal. After ordering a bone scan, it was determined that the Veteran had only minor arthritic changes in the right foot. In an April 2014 podiatry note, the Veteran reported that her right foot pain persists and is getting worse. She reported that if she steps on uneven terrain applying focused pressure on the outside of her right foot, the pain is excruciating. The examiner noted that the Veteran walked with a definite limp. Upon examination, the examiner found pain at the articulating surface between the fourth and fifth metatarsal bases and the cuboid. The examiner assessed the Veteran with midtarsal joint arthralgia and rheumatoid arthritis and recommended a CT scan. In May 2016, during a VA examination, the Veteran again reported having ongoing pain in her hands, feet, and wrists. The examiner found that the Veteran’s rheumatoid arthritis affects her wrist, hand/fingers, toes/foot, bilaterally, but no limitation of joints. The examiner noted that the Veteran has four or more non-incapacitating episodes per year, with the last being May 11, 2016, and four or more incapacitating episodes per year lasting 2 to 4 weeks in duration, but the incapacitating episodes are not severely incapacitating. The examiner found that the Veteran does not have anemia or weight loss due to the condition, her condition is not manifested by constitutional manifestations associated with active joint involvement, or symptoms productive of definite impairment of health. Given the above and remaining evidence, the Board finds a 40 percent rating, but no higher, is warranted for the period beginning February 27, 2013 to February 16, 2017. The evidence shows that the Veteran has consistently reported pain in her hands, feet, elbows, and chest. In addition, the evidence shows that the Veteran’s complaints of right foot pain in July 2013 lasted in duration for at least one year as evidenced by her medical visits. Further, in her September, January, and March 2014 podiatry visits, she was noted to have a slight limp; however, subsequent visits in April, May, and June 2014, the Veteran was found to have a “definite limp” guarding the right foot. Moreover, in her June 2014 podiatry visit, the Veteran described the pain as “excruciating.” The evidence also shows that the Veteran began experiencing persistent chest pains. In June 2014, the Veteran presented for a follow-up visit where the examiner noted that the Veteran had been having atypical chest pains with negative workups for coronary artery disease and pulmonary disease, and that her pain was more musculoskeletal rather than indicative of cardiac disease. Additionally, the Veteran presented to the emergency room in November 2016 for persistent chest pains. After examining the Veteran and providing a chest x-ray, the examiner’s clinical impression was that the Veteran had chest pain with unknown etiology. She was recommended to follow-up with her rheumatologist. The Board notes that although the Veteran was advised her chest pains were due to heartburn, the examiner in a subsequent emergency room visit in March 2017 concluded that he was considering the possibility of a systemic lupus erythematosus (SLE) flare as being the cause of the Veteran’s chest pain. The Board has also considered the Veteran’s lay statements for which the Board finds the Veteran competent and credible. For example, in the Veteran’s July 2014 NOD she reported that her symptoms are constant, affecting her hands, feet, knees, and elbows. Additionally, in her November 2015 VA Form 9, she reported having severely incapacitating episodes of more than four a year, with pain that never goes away. Considering the totality of the medical and lay evidence, the Board finds the Veteran’s migratory arthritis more nearly approximates the criteria of a 40 percent rating, but no higher, beginning February 27, 2013 until February 16, 2017, as the Veteran’s pain in her hands, feet, wrists, and chest caused symptom combinations productive of definite impairment of health. The Board finds that the Veteran is not entitled to a higher rating as the Veteran’s condition was not productive of severe impairment caused by anemia and weight loss, severely incapacitating episodes, or constitutional manifestations causing total incapacitation. As noted previously, the May 2013 examiner noted that the Veteran had one exacerbation that was non-incapacitating; however, this appears to have been the result of the Veteran being off her medications for about 6 months for ENT surgery and hip surgery. Additionally, although the Veteran has reported having anemia, the May 2013 examiner found that the Veteran’s mild anemia was considered iron deficiency related from heavy menses, and the May 2016 examiner found no evidence of anemia. Nonetheless, there is no evidence that the Veteran had any weight loss and anemia, combined, productive of severe impairment of health. Further, the Veteran has contended a higher rating is warranted because her condition causes constant non-incapacitating flares with constant pain, and that her flares occur for long periods; however, the Board notes that the Veteran has been able to continue working as noted in her May 2013 and May 2016 VA examinations. Specifically, in her May 2013 examination, the Veteran reported that she sits mostly for her work as a claims processor for VA, and that significantly gelling of her joints will occur if she does not get up and walk regularly. In her May 2016 examination, she reported that although she is able to work, she has to rest and sleep once she gets home, and do no other activities. Notably, there is no indication that the Veteran’s condition incapacitated her to the extent that she could not continue working. In sum, the Board finds the preponderance of evidence weighs in favor of awarding a 40 percent rating, but no higher, from February 27, 2013 to February 16, 2017. Period beginning February 16, 2017 The Board notes that for the Veteran was awarded an increase to 100 percent disability effective December 5, 2017. However, after reviewing the evidence, the Board finds that a 100 percent rating is warranted as of February 16, 2017. In support thereof, the Board notes that the Veteran’s 100 percent disability rating was based upon findings in her December 5, 2017 non-degenerative arthritis examination. In the examination, the examiner diagnosed the Veteran with inflammatory arthritis, and also noted that the Veteran has systemic lupus erythema (SLE) arthritis. The examiner found that the Veteran has four or more non-incapacitating episodes with constant pain, and four or more incapacitating episodes lasting four to six weeks in duration. The examiner concluded that it would be mere speculation to separate the symptoms from the polyarthritis and the SLE as they mirror each other and can overlap. Based upon this conclusion, the RO found that the Veteran’s co-morbid conditions more nearly approximated the criteria for a 100 percent rating. While the Board agrees with this finding, the Board notes that the Veteran’s co-morbid conditions appeared to begin worsening as early as February 16, 2017. On February 16, 2017, the Veteran presented to the emergency department with a complaint of chronic muscle pain. It was noted that she visited the urgent care two days prior for a sore throat and has been on amoxicillin for two days, but her throat condition has been the same. Upon examination, the examiner noted the Veteran’s history of SLE and that she may be immunocompromised on methotrexate, which could increase the significance of her sinus disease. In a March 1, 2017 rheumatology note, the Veteran complained that recent strep throat seemed to flare her arthritis. The examiner assessed the Veteran with SLE with persistent arthritis symptoms, and added prednisone 10 mg for arthritis flares. In a March 8, 2017 emergency room visit, the Veteran was admitted after complaining of chest pains describing her pain as the worst episode she has had. The examiner noted that the Veteran presented with typical/atypical chest pains and persistent arthritis symptoms, and concluded that an SLE flare may be the cause of the Veteran’s chest pain. The examiner gave the Veteran one dose of prednisone 20mg, and a stress test was recommended. The following day, a stress test was performed with results showing symptoms “resolved,” and the Veteran was discharged with a diagnosis of atypical chest pain. She was advised to see her rheumatologist. Further, in an April 2017 mental health visit, the Veteran reported that she was still working but experiencing stress, significant pain, and fatigue. The examiner noted the Veteran was clearly fatigued. In a September 2017 rheumatology visit, the Veteran reported that her condition has been worse with three notable flares over the summer. In light of the above, the Board finds that a 100 percent rating is warranted beginning February 16, 2017, as the evidence shows that the Veteran’s condition began to worsen due to the comorbidity of the Veteran’s SLE and arthritis. The Veteran’s pain complaints were persistent in the following months and increased to the extent that prednisone, and ultimately and increased dosage, was added to her medication regiment. The Veteran is not entitled to a date earlier as this is the earliest date evidence is factually ascertainable exhibiting such worsening. The Board is aware that the Veteran complained of chest pains shortly prior to February 2017; however, the Veteran noted in a December 2016 medication management note that her chest pains were due to heartburn, and was prescribed medication for such. She further reported that she changed her diet and has been more compliant in her pantoprazole. As a result of the above, the Board finds the preponderance of evidence weighs in favor of the award of a 100 percent rating beginning February 16, 2017. 2. Entitlement to a temporary total evaluation based on convalescence for surgery of service-connected right hip osteoarthritis. A temporary total disability rating (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more (emphasis added). 38 C.F.R. § 4.30. A review of the record shows that the Veteran had right hip surgery in November 2012; however, the Veteran’s claim for service connection of this condition was filed after said surgery, and the Veteran was not granted service connection for her right hip disability until December 2017. Consequently, as the Veteran was not service-connected for the condition at the time of her surgery in November 2012, the claim for a temporary total rating based on convalescence must be denied as a matter of law. The Veteran does not have a disability for which service connection has been established that required surgery or immobilization by cast during the pendency of this claim. Accordingly, the criteria for a temporary total rating are not satisfied. See id. As a temporary total rating must be denied as a matter of law, the benefit-of-the-doubt rule does not apply. Sabonis v. West, 6 Vet. App. 426, 430 (1994); cf. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an increased rating for surgical scars, associated with internal derangement right shoulder, post rotator cuff, is remanded. After review of the record, the Board finds that further development is necessary before the Board can adjudicate the remaining issue on appeal. In July 2014, the Veteran filed a Notice of Disagreement with respect to the denial of an increased rating for surgical scars associated with her service-connected right shoulder. However, to date, the RO has not issued a statement of the case (SOC). As such, this claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the matter is REMANDED for the following action: 1. In response to the Veteran’s July 2014 Notice of Disagreement furnish the Veteran a fully responsive statement of the case relating to the issue of entitlement to an increased rating for surgical scars associated with service-connected right shoulder disability. Gayle E. Strommen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel