Citation Nr: 18157921 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 09-42 539 DATE: December 13, 2018 ORDER A rating in excess of 40 percent for rheumatoid arthritis of multiple joints and the middle back with ankylosing spondylitis of the spine is denied. FINDINGS OF FACT 1. The Veteran had active service from April 1967 to May 1975. 2. At his death, a claim for an increased rating for a back disability was pending on appeal; his wife has been substituted on the claim. 3. A low back disability is manifested by subjective complaints of pain and limited range or motion; objective findings include limited range of motion and favorable ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for rheumatoid arthritis of multiple joints and the middle back with ankylosing spondylitis of the spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Codes (DCs) 5002, 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to his death, the Veteran claimed he was seeking service connection for a separate back disorder. This was addressed in a separate rating decision and is not before the Board. Under DC 5002, rheumatoid arthritis may be rated either under the active process or the residual ratings for limitation of motion or ankylosis. At the outset of the appeal, the Veteran was rated at 40 percent under DC 5002 for active process. In August 2017, separate ratings of 30 percent were assessed for rheumatoid arthritis of each foot, and 10 percent ratings were assessed for the fingers and thumbs of each hand, while a 40 percent rating was then continued for rheumatoid arthritis of the spine, now based on limitation of motion and ankylosis, which remains on appeal. The ratings assessed for the other joints of rheumatoid arthritis were not appealed, and as such are not currently before the Board. Finally, service connection for the cause of death, due to rheumatoid arthritis as a contributing factor, was granted in a separate May 2018 rating decision and is not currently on appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the level of disability during the appeal period that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the level of a disability during the appeal period for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claimed he was entitled to a higher rating for rheumatoid arthritis of the spine. To warrant a rating in excess of 40 percent, the evidence must show: • rheumatoid arthritis less than the criteria for 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 (60 percent under DC 5002); • rheumatoid arthritis with constitutional manifestations associated with active joint involvement, totally incapacitating (100 percent under DC 5002); or • unfavorable ankylosis of the entire thoracolumbar spine (50 percent). Turning to the evidence, a higher rating is not warranted under DC 5002. A review of the record showed neither the anemia nor the weight loss required for a higher rating. VA examiners in June 2017, April 2016, and January 2008 all failed to note anemia or weight loss caused by rheumatoid arthritis. Similarly, VA and private medical records do not show a diagnosis of anemia nor did they note significant weight loss caused by rheumatoid arthritis. Therefore, the medical evidence weighs against the symptoms warranting a higher rating under DC 5002. Next, unfavorable ankylosis of the entire thoracolumbar spine was not shown by the medical evidence. A July 2017 VA examiner found that the Veteran had favorable ankylosis of the entire thoracolumbar spine, but not unfavorable ankylosis. January 2008, March 2010, and April 2016 VA examiners did not note either favorable or unfavorable ankylosis of the thoracolumbar spine. Similarly, VA treatment and private medical notes did not show unfavorable ankylosis of the thoracolumbar spine. February 2015 VA diagnostic tests showed partial ankylosis of both sacroiliac joints, but not unfavorable ankylosis of the spine. As such, the medical evidence weighs against the Veteran’s symptoms having warranted a rating in excess of 40 percent for ankylosis. The Board has also considered the Veteran’s and appellant’s lay statements that his disability was worse. While they are competent to report symptoms because this required only personal knowledge as it came to them through their senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), they were not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s rheumatoid arthritis of the spine has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the appellant did not raise any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel