Citation Nr: 21066218 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-33 204 DATE: October 29, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for rheumatoid arthritis of the left foot and ankle is denied. Entitlement to an increased rating in excess of 10 percent for rheumatoid arthritis of the right foot is and ankle denied. Entitlement to a rating of total disability, individual unemployability is granted. FINDINGS OF FACT 1. The Veteran left ankle and foot rheumatoid arthritis is manifested by moderate limitation of motion of 0 to 30 degrees. 2. The Veteran right ankle and foot rheumatoid arthritis is manifested by moderate limitation of motion of between 0 to 30 degrees. 3. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to ratings in excess of 10 percent for rheumatoid arthritis of the left foot and ankle have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5002. 2. The criteria for entitlement to ratings of 10 percent for rheumatoid arthritis of the right foot and ankle have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5002, 5271. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1997 to April 2002 and from February 2005 to July 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2013 and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to TDIU benefits is part and parcel of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the issue of entitlement to a TDIU was raised in conjunction with the Veteran's increased rating claims for rheumatoid arthritis and is addressed below. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1.-2. Entitlement to initial increased ratings in excess of 10 percent for rheumatoid arthritis of the left and right feet and ankles The Veteran contends her rheumatoid arthritis symptoms have increased in both of her feet and ankles. The Board notes that the RO rated the Veteran's ankles under Diagnostic Code 5002-5271. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's rheumatoid arthritis (Diagnostic Code 5002) of the left and right ankles are rated, by analogy, under the criteria for limitation of motion of the ankle (Diagnostic Code 5271). The Board notes that changes to the diagnostic codes listed in 38 C.F.R. § 4.71a were implemented on February 7, 2021. In this case, there is no evidence submitted after February 7, 2021. As such, only the pre-revision diagnostic codes are used here. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. The Veteran was afforded VA examinations in September 2019 and December 2019 for her rheumatoid arthritis and her ankles. The September 2015 VA examination, on which the Veteran was granted a 10 percent rating for each ankle, was found inadequate for not addressing various factors prescribed by the Court of Veterans Appeals for evaluating musculoskeletal disabilities. As such, only the latest examinations are addressed here. During the examinations, the Veteran reported she was unable to stand for prolonged periods of time secondary to the pain and swelling in her feet from rheumatoid arthritis. The September 2019 and December 2019 VA examination results are near identical. Any differences are noted here. Both examiners noted that the Veteran was first diagnosed with rheumatoid arthritis in June 2010 while on active duty. The histories noted that symptoms have progressed and spread to the Veteran's hips, shoulders, hands, and feet. The September 2019 VA examination was conducted during a flare-up of the Veteran's feet while the December 2019 VA examination was not. Both examiners noted that the Veteran requires continuous use of medication for her arthritis condition. The Veteran is prescribed Methotrexate 20mg weekly, and Prednisone as needed for flare-ups. The December 2019 examiner noted the addition of folic acid. Both examiners noted the Veteran has not lost weight and does not have anemia due to her arthritis condition. Both examiners noted bilateral pain attributable to the arthritis condition in the Veteran's toes/feet. The September 2019 VA examiner found limitation of movement of the toes/feet while the December 2019 examiner did not find any limitation of movement of the toes and feet. These findings are consistent with the Veteran having more severe symptoms during flare-ups. The September 2019 examiner did not note any joint deformities due to the arthritis condition and did not find any involvement of any body systems other than joints. The December 2019 VA examiner noted right foot/toe joint deformities attributable to the arthritis condition. Specifically, he found prominent erosion of the right 5th metatarsophalangeal (MTP) joint. Neither examiner noted that the Veteran has any exacerbations, incapacitating or non-incapacitating, due to her arthritis condition. Both examiners found that the Veteran's arthritis is not manifested by constitutional manifestation associated with active joint involvement which are totally incapacitation, is not manifested by weight loss and anemia productive of severe impairment of health, and is not manifested by symptom combinations productive of definite impairment of health objective supported by examination findings. Both examiners noted the September 2018 private x-ray imaging studies finding periarticular erosions of the head of the right 5th digit MTP joint. Both examiners also noted laboratory studies in May 2010 that showed abnormal erythrocyte sedimentation rate, c-reactive protein, rheumatoid factor, and anti-cyclic citrullinated peptide (anti-CCP) antibodies test results. No other tests were noted by the examiners. The examiners noted no other pertinent physical findings, complications, conditions, signs, symptoms, or scars with the condition. The December 2019 VA examiner also filled out a separate ankle and foot Disability Questionnaire (DBQ). The Veteran's range of motion of her right and left ankles are the same, being limited to 0 to 20 degrees for dorsiflexion and 0 to 30 degrees for plantar flexion. The examiner noted that these ranges of motion do not themselves contribute to functional loss. Repeated motion testing did not have any effect on these ranges of motion. The examiner noted that the examination was not conducted immediately after repetitive use over time or during a flare up. The examiner did note that repetitive use over time and for flare-ups, pain, fatigue, weakness, lack of endurance, and incoordination do not cause additional functional loss. The examiner also noted that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or flare-ups. The examiner found no pain in the ankle during examination on weight bearing or non-weigh bearing, however she did note mild Achilles' tendon and heel pain bilaterally. The examiner found normal strength (5/5) bilaterally for both ankles in plant flexion and dorsiflexion. The examiner found no crepitus, muscle atrophy, ankylosis, or signs of instability or dislocation. The examiner found no additional contributing factors to the disability for either ankle or any other pertinent physical findings, complications, conditions, signs, symptoms, or scars associated with the disability. The examiner did note that the Veteran wears ankle supports on a regular basis. The examiner noted that due to the Veteran's ankle conditions, the functional impairment is not such that no effective function remains other than that which would be equally well served by an amputation with prothesis. The Board reviewed all of the private treatment records obtained by the VA and supplied by the Veteran. None of these records indicate any symptoms worse than those identified by the September and December 2019 examiners. The Board considered all of the rating criteria for the ankles, feet, arthritis, as well as a rating for painful motion under 38 C.F.R. § 4.59. The Board finds a higher evaluation of 20 percent under Diagnostic Code 5271 is not warranted because the record does not show marked limited motion of the ankle, marked deformity or malunion of the os calcis or astragalus or, ankylosis in plantar flexion less than 30 degrees. Under the rating criteria for the foot (Diagnostic Code 5284), a 10 percent evaluation is assigned for moderate foot injuries or 20 percent for moderately severe foot injuries. The evidence of record identifies the Veteran's symptoms as mild and does not reflect symptoms more akin to a moderately severely foot condition. Although the Veteran is noted to have foot pain, the VA examinations revealed normal range of motion of the feet and no functional impairment due to the service-connected bilateral foot disabilities. Under the rating criteria for arthritis (Diagnostic Code 5003), an evaluation of 10 percent is assigned for limited motion of a major joint or group of minor joints which is not evidenced. Under the Diagnostic Code 5002 for multi-joint arthritis, an evaluation of 20 percent is not warranted unless the record shows one or two exacerbations a year in a well-established diagnosis. An evaluation of 40 percent is not warranted unless there is evidence of symptom combinations productive of impaired health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. An evaluation of 60 percent is not warranted unless the record shows an active process with weight loss and anemia productive of severe impairment of health, severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged periods. A higher evaluation of 100 percent is not warranted unless there is a totally incapacitating process with constitutional manifestations and active joint involvement. The evidence of record does not meet any of the requirements for a rating in excess of 10 percent. In reaching this determination, the Board has considered the Veteran's reports regarding her bilateral ankle and foot symptomatology. She has consistently reported symptoms of pain in her joints, swelling, and difficulty with activities, such as prolonged standing. The Veteran is competent to report her own observations with regard to the severity of her disabilities, including reports of pain and the impact the disabilities have on her daily functioning. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's reports of pain are consistent with the findings of the VA examinations and the 10 percent rating currently assigned. To the extent that the Veteran's appeal indicates that she believes her disabilities meet the criteria for higher disability ratings, her assertions must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. Based on the above, the Board finds that finds the highest rating available is a rating of 10 percent disabling under Diagnostic Code 5271 for moderate limitation of range of motion due to her rheumatoid arthritis based on plantar flexion range of motion being limited to 0 to 30 degrees. Total Disability, Unemployability (TDIU) Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology are considered as one disability 3. Entitlement to a rating of total disability, individual unemployability The Veteran contends that her rheumatoid arthritis symptoms cause her to be unemployable. Rheumatoid arthritis is a condition where the immune system attacks healthy cells in the body by mistake, causing inflammation in the affected parts of the body. See Center for Disease Control and Prevention, Definition of Rheumatoid Arthritis. Rheumatoid arthritis mainly attacks the joints, usually many joints at once. See id. In the Veteran's case, separate ratings have been assigned for multiple joints due to her rheumatoid arthritis. As such, these result from a common etiology and are considered a single disability for TDIU purposes. The Veteran's rheumatoid arthritis rated joints alone were rated in excess of 60 percent effective as of July 2, 2010. See April 2017 Rating Codesheet. As such, the Veteran is eligible for consideration of a TDIU under 38 C.F.R. § 4.16(a) based on her rheumatoid arthritis being a single disability rated at 60 percent or greater. The Veteran has undergone several VA examinations for her rheumatoid arthritis in 2019. Of these, a December 2019 VA examiner opined that the Veteran's arthritis causes the Veteran to be unable to be involved in any occupation requiring lifting of heavy weights, frequent ambulation, or use of her hands on a constant basis. The Board finds that this prevents the Veteran from conducting nearly all employment activities. While the Veteran may be able to sit, she is unable to conduct work with her hands; as such, even positions requiring only typing on a computer are not viable, as they would require use of her hands on a constant basis. This opinion also states that the Veteran's rheumatoid arthritis symptoms precludes her from performing any jobs that have her standing or lifting heavy object, even if not requiring use of her hands on a consistent basis. As such, the Board finds this combination of impairments precludes the Veteran from nearly all job activities, be they active or sedentary. Therefore, the Board finds that the Veteran is precluded for substantially gainful employment. The Veteran has reported that the last time she worked was when active duty in the United States Air Force in 2010. There is currently no evidence of record to question this. Based on the evidence of record, and finding the Veteran credible regarding her employment status, the Board grants TDIU for the period on appeal. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.