Citation Nr: 18160986 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-12 145A DATE: December 28, 2018 ORDER An initial rating higher than 10 percent for service-connected rheumatoid arthritis of the right wrist and bilateral hands is denied. A higher initial rating of 10 percent is granted for service-connected rheumatoid arthritis of the left wrist for the period through January 16, 2017, but an initial rating higher than 10 percent is denied for the period beginning January 17, 2017. FINDINGS OF FACT 1. The Veteran’s service-connected rheumatoid arthritis of the right wrist and bilateral hands has not manifested symptoms productive of definite impairment of health or worse or any incapacitating exacerbations, and a rating higher than 10 percent cannot be assigned based on limitation of motion of the wrist. 2. The Veteran’s service-connected rheumatoid arthritis of the left wrist has not manifested symptoms productive of definite impairment of health or worse or any incapacitating exacerbations, but it has manifested limitation of motion which is noncompensable except on the basis of affecting a major joint since her separation from service. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for service-connected rheumatoid arthritis of the right wrist and bilateral hands have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.25, 4.26, 4.27, 4.45, 4.71, 4.71a Diagnostic Codes 5002, 5215, and 5243 (2018). 2. The criteria for a higher initial rating of 10 percent for service-connected rheumatoid arthritis of the left wrist have been met for the period through January 16, 2017, but the criteria for an initial rating higher than 10 percent have not been met for the period beginning January 17, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.25, 4.26, 4.27, 4.45, 4.71, 4.71a Diagnostic Codes 5002, 5215, and 5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1998 to February 2011. This matter is on appeal from an August 2011 rating decision (notice was not sent until September 2011) of the Department of Veterans Affairs (VA) which granted service connection and an initial rating for her rheumatoid arthritis of the wrists and hands. A February 2015 rating decision increased this initial rating to 10 percent, while a January 2017 rating decision recharacterized it as pertaining only to the right wrist and bilateral hands and added a separate initial rating of 10 percent for the left wrist effective January 17, 2017. The appeal remains because these determinations were only partially favorable. AB v. Brown, 6 Vet. App. 35 (1993). Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notice accompanied the claim form (Fully Developed Claim – VA 21-526EZ) submitted by the Veteran. As such, it was provided prior to initial adjudication via the August 2011 rating decision. Service connection, the original benefit sought, further was granted therein. Notice of downstream issues like a higher initial rating is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Service, VA, and private treatment records concerning the Veteran are available. There is no indication of any outstanding treatment records. In April 2011 (with a June 2011 addendum) and January 2017, the Veteran underwent VA medical examinations. Neither she nor her representative has raised any notice or assistance deficiency. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (procedural arguments that are not raised need not be addressed); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Higher Initial Ratings Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 38 C.F.R. § 4.71a addresses disabilities of the musculoskeletal system. The Veteran’s service-connected rheumatoid arthritis of the right wrist and bilateral hands as well as her service-connected rheumatoid arthritis of the left wrist have been rated pursuant to Diagnostic Code 5215-5002 thereunder. Hyphenated Diagnostic Codes are used when the rating for a disability is based on a residual disability. 38 C.F.R. § 4.27. Diagnostic Code 5002 is for rheumatoid arthritis (atrophic). It establishes ratings for the disability as an active process and for chronic residuals of the disability. As an active process, a 20 percent rating is assigned with 1 or 2 exacerbations a year in a well-established diagnosis. Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations 3 or more times a year merits a 40 percent rating. A 60 percent rating requires symptoms that are less than criteria for a 100 percent rating, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations 4 or more times a year or a lesser number over prolonged periods. A 100 percent rating is reserved for constitutional manifestations associated with active joint involvement, totally incapacitating. For chronic residuals, such as limitation of motion or ankylosis, rating is under the appropriate Diagnostic Code(s) for the specific joints involved. When limitation of motion is noncompensable under the Diagnostic Code(s), however, a 10 percent rating is assigned for each major joint or group of minor joints affected. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating for the active process will not be combined with a rating or ratings for chronic residuals. The method resulting in this highest rating overall is to be used. Diagnostic Code 5215 is for limitation of motion of the wrist. It provides for a 10 percent rating for palmar flexion limited in line with the forearm as well as for dorsiflexion less than 15 degrees, regardless of whether the major (dominant) or minor (non-dominant) arm is involved. Normal range of motion of the wrist is palmar flexion from 0 to 80 degrees, dorsiflexion from 0 to 70 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. 38 C.F.R. § 4.71, Plate I. Finally, only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). This evidence and the evidence required to address any arguments raised accordingly is all that is considered herein. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). The Board finds, based on it, that an initial rating higher than 10 percent for service-connected rheumatoid arthritis of the right wrist and bilateral hands is not warranted. The Board further finds that a higher initial rating of 10 percent is warranted for service-connected rheumatoid arthritis of the left wrist for the period through January 16, 2017, but that an initial rating higher than 10 percent is not warranted for the period beginning January 17, 2017. It is unclear whether the Veteran has rheumatoid arthritis as an active process or has chronic residuals of rheumatoid arthritis. Numerous private treatment records dated from 2013-2015, reflect that her lab work was negative for rheumatoid factor. Yet there seemed to be some disease activity per a November 2013 private treatment record. Rheumatoid arthritis as an active process and chronic residuals of rheumatoid arthritis both shall be considered in light of this lack of clarity. Doing so does not prejudice the Veteran and satisfies VA’s duty to maximize benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB, 6 Vet. App. at 35. As an active process, there is no indication of weight loss or anemia attributable to the Veteran’s rheumatoid arthritis. Her weight has ranged from a low of 200 pounds per a June 2011 private treatment record to a high of 219 pounds per an August 2013 private treatment record. She has gained weight instead of lost weight, in other words. The Veteran has been diagnosed with anemia. Yet service treatment records document that it is attributable not to an autoimmune disease like rheumatoid arthritis but rather to iron deficiency. Additionally, service connection has been granted for this disability. To consider it again here would constitute impermissible pyramiding. 38 C.F.R. § 4.14. As such, the January 2017 VA medical examination determined that the Veteran’s rheumatoid arthritis does not manifest weight loss and anemia productive of severe impairment of health. It also was determined that it does not manifest symptom combinations productive of definite impairment of health. The Veteran has complained of fatigue/being tired most days, generalized weakness, insomnia and night sweats, as well as heat intolerance. However, examination findings do not provide objective support for any of these symptoms. Findings from the April 2011 and January 2017 VA medical examinations instead concern only the Veteran’s wrists, hands, and fingers, the joints determined at them to be affected by her rheumatoid arthritis. To the extent she argues contrary to these determinations that her feet/toes also are affected, her diagnoses of fibromyalgia, plantar fasciitis of the right foot and of the left foot, and right foot bunion surgery residuals with screws are notable. Service connection has been granted for each of these disabilities except fibromyalgia. Another determination from the January 2017 VA medical examination was that the Veteran’ rheumatoid arthritis does not have exacerbations which are totally incapacitating, severely incapacitating 4 or more times a year or a lesser number over prolonged periods, or even incapacitating 3 or more times a year. Indeed, it was determined that she does not have incapacitating exacerbations at all. Nothing else conveys incapacitating exacerbations either. The Veteran has reported pain, weakness/decreased strength, numbness, stiffness, tremors/shakiness, cramps, and swelling/puffiness in her wrists, hands, and fingers. Some of these symptoms, such as pain, swelling/puffiness, and tremors are frequent, whereas others are occasional. Stiffness is frequent yet temporary, lasting 30 minutes most mornings. The Veteran reported severe flare-ups less than yearly, though they lasted over a month, at the April 2011 VA medical examination. She otherwise has reported flare-ups or exacerbations, described as symptom days, often. The Veteran has indicated her disabilities, to include rheumatoid arthritis, take up all her free time and impact her relationships. However, she asserts that they impact her job only somewhat. With respect to rheumatoid arthritis only, she generally is able to do the typing and handwriting required at work, but sometimes her tremors are so bad she cannot write. The Veteran describes difficulty opening jars and repetitively lifting heavy objects. Statements from friends and coworkers attest to her pain, difficulty with lifting and repetitive activities, and inability to do yard work and house maintenance. Private treatment records contain findings of tenderness and puffiness in the fingers as well as note difficulty holding onto objects, while the June 2011 VA medical examination addendum found slight swelling in the right wrist. Decreased dexterity and strength as well as problems with lifting and carrying were noted at the April 2011 examination. What makes an exacerbation incapacitating is not defined in Diagnostic Code 5002. However, rating by analogy to a disability closely related in terms of the anatomical location, function affected, and the symptomatology is allowed. 38 C.F.R. § 4.20. Diagnostic Code 5243 concerns intervertebral disc syndrome. Like rheumatoid arthritis, it is a musculoskeletal disability which affects joints (of the spine) and causes symptoms such as pain and limitation of motion. Rating by analogy therefore is appropriate. An “incapacitating episode” is defined by Diagnostic Code 5243 as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note (1). Applying this definition to an incapacitating exacerbation under Diagnostic Code 5002, there is no indication that the Veteran ever has been prescribed bed rest by a physician for her rheumatoid arthritis. It is difficult to conceive of why bed rest would be prescribed for a disability which affects the wrists, hands, and fingers. Private treatment records further reveal that the Veteran receives care for this disability at regular intervals, notwithstanding that she experiences flare-ups or exacerbations. Her periods of acute signs and symptoms do not require treatment by a physician, in other words. In sum, the Veteran’s exacerbations are not incapacitating. Her reports that these exacerbations occur frequently are competent, however. Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of these reports is undisputed. The Veteran therefore more than satisfies the criterion for a 20 percent initial rating for rheumatoid arthritis as an active process, 1 or 2 exacerbations a year in a well-established diagnosis. While the January 2017 VA medical examination determined that she does not have exacerbations, (as it was found she does not have any that are not incapacitating or that are incapacitating), this determination is assigned little probative weight. It indeed is contrary to her competent and credible reports as well as to the rest of the medical evidence. As chronic residuals of the Veteran’s rheumatoid arthritis, it is reiterated that only her wrists, hands, and fingers are affected. There is no indication that the Veteran has any ankylosis in them. Regarding limitation of motion, a November 2010 service treatment record documents no hand of finger abnormalities. The June 2011 VA medical examination addendum shows that there was no limitation of motion in any finger on either hand. Range of motion likewise was normal in every finger on each hand at the January 2017 VA medical examination. Including the bilateral hands in the rating for the Veteran’s right wrist therefore is unnecessary. It is not prejudicial to her, however, so this determination will not be disturbed. Each of the Veteran’s wrists had limitation of motion. The November 2010 service treatment record shows that her right wrist had decreased palmar flexion and dorsiflexion. Her left wrist was normal. At the June 2011 VA medical examination addendum, the Veteran’s right wrist had only 70 degrees palmar flexion. Dorsiflexion was normal. Her left wrist also was normal. After 3 repetitions, there was no change in these measurements. A June 2011 private treatment record states that there was full motion in the Veteran’s wrists. Per December 2011 private treatment records, her right wrist had 58 degrees volar flexion (palmar flexion) and her left wrist had 40 degrees volar flexion. Her dorsiflexion was 72 or 73 degrees in the right wrist and 78 degrees in the left wrist. Repetition was not performed. Finally, palmar flexion and dorsiflexion in the Veteran’s right wrist and left wrist were normal initially and after 3 repetitions at the January 2017 VA medical examination. Her right wrist, in sum, has had limited motion with respect to dorsiflexion and palmar flexion except on one occasion, in January 2017. Yet, even at its worst, dorsiflexion in this wrist was far greater than 15 degrees. Palmar flexion in it also was far greater than limited in line with the forearm. The Veteran’s left wrist has had limited motion with respect to dorsiflexion and palmar flexion only once, in December 2011. Yet her dorsiflexion in this wrist was far greater than 15 degrees and her palmar flexion was far greater than limited in line with the forearm at that time. It follows that neither the Veteran’s right wrist nor her left wrist qualifies for a 10 percent rating under Diagnostic Code 5215. She has noncompensable dorsiflexion and palmar flexion limitation of motion in each wrist, in other words. Although not taken into account by Diagnostic Code 5215, it also is notable that she had decreased radial deviation in the right wrist initially and upon repetition at the June 2011 VA medical examination addendum. How radial and ulnar deviation were assessed for the December 2011 private treatment records is unclear, as the measurements for each wrist are higher than the normal 20 and 45 degrees. In any event, the measurements for the left wrist are lower than those for the right wrist. This strongly suggests some limitation of motion in it. Radial deviation in the Veteran’s right wrist and ulnar deviation in her left wrist were decreased initially and upon repetition at the January 2017 VA medical examination. She thus has noncompensable radial and ulnar deviation limitation of motion in each wrist in addition to limited dorsiflexion and palmar flexion. Each wrist is considered a major joint. 38 C.F.R. § 4.45(f). Diagnostic Code 5002 provides for a 10 percent rating for each, if the noncompensable limitation of motion is objectively confirmed. According to the June 2011 VA medical examination addendum and at the January 2017 VA medical examination, no pain was detected during range of motion in either wrist. There was no mention of pain during range of motion in service treatment records or the December 2011 private treatment records. However, pain and tenderness often was found in private treatment records. These records also often found puffiness, albeit in the fingers and not the wrists. Lastly, it is reiterated that slight swelling has been found in the right wrist. There accordingly is sufficient objective confirmation to justify a 10 percent initial rating for each wrist for chronic residuals of rheumatoid arthritis under Diagnostic Code 5002. These determinations apply since the Veteran separated from service in February 2011 because the findings supporting it have occurred from that time to recently. Under Diagnostic Code 5215 and the chronic residuals portion of Diagnostic Code 5215, a 10 percent rating is the maximum allowable for each wrist. Consideration of a higher initial rating for functional loss under 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) therefore is not necessary. Johnston v. Brown, 10 Vet. App. 80 (1997). To the extent the VA medical examinations did not comply with the requirements set forth by the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), or Sharp v. Shulkin, 29 Vet. App. 26 (2017), which address measurement of limitation of motion and functional loss, there is no prejudice to the Veteran for this same reason. The same is true with respect to the December 2011 private treatment records failing to take range of motion measurements after repetition (the reason given for discounting these measurements altogether below). All that remains is to determine whether rheumatoid arthritis as an active process or chronic residuals of rheumatoid arthritis results in a higher rating overall for her. Rating the Veteran’s rheumatoid arthritis as an active process results in a single 20 percent initial rating. For chronic residuals of her rheumatoid arthritis, a 10 percent initial rating is assigned for her right wrist and bilateral hands. Another 10 percent initial rating is assigned for her left wrist. Disability ratings are combined, not added. 38 C.F.R. § 4.25. With application of the bilateral factor, an additional 10 percent because both wrists are affected, the combined initial rating for the Veteran’s chronic residuals of rheumatoid arthritis of the right wrist and bilateral hands and chronic residuals of rheumatoid arthritis of the left wrist is 21 percent (rounded; 10 combined with 10 is 19 + an additional 10 percent (1.9) = 20.9). 21 percent is a slightly higher rating overall than 20 percent. 38 C.F.R. § 4.26. As such, separate 10 percent initial ratings for chronic residuals of rheumatoid arthritis of the right wrist and bilateral hands and for chronic residuals of rheumatoid arthritis of the left wrist are warranted. The Veteran already is in receipt of a 10 percent initial rating for her service-connected rheumatoid arthritis of the right wrist and bilateral hands. A higher initial rating thus is denied. With respect to the left wrist, the Veteran is in receipt of a 10 percent initial rating only for the period beginning January 17, 2017. A higher initial rating thus is denied for the period beginning on that date but granted for the period through January 16, 2017. The stage in her initial rating is eliminated, in other words. Each of the aforementioned determinations was based on the preponderance of the evidence. So, there is no benefit of the doubt to afford the Veteran. No further issues have been raised. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are raised). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel