Citation Nr: 21069290
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 15-44 964
DATE: November 18, 2021

ORDER

A disability rating greater than 20 percent for polyarthralgia of the lumbar spine is denied.

Before July 19, 2019, a disability rating greater than 20 percent for polyarthralgia of the right shoulder is denied.

Since July 19, 2019, a disability rating greater than 30 percent for polyarthralgia of the right shoulder is denied.

A disability rating greater than 20 percent for polyarthralgia of the left shoulder is denied.

A disability rating greater than 10 percent for polyarthralgia of the right elbow, based on limitation of flexion, is denied.

A disability rating greater than 10 percent for polyarthralgia of the left elbow, based on limitation of flexion, is denied.

A disability rating greater than 10 percent for polyarthralgia of the right elbow, based on limitation of supination, is denied.

A disability rating greater than 10 percent for polyarthralgia of the left elbow, based on limitation of supination, is denied.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right thumb is granted.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left thumb is granted.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right index finger is granted.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left index finger is granted.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right middle finger is granted.

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left middle finger is granted.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the right thumb is denied.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the left thumb is denied.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the right index finger is denied.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the left index finger is denied.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the right middle finger is denied.

Since October 9, 2018, a disability rating greater than 10 percent for painful motion of the left middle finger is denied.

Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the right ring finger is granted.

Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the left ring finger is granted.

Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the right little finger is granted.

Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the left little finger is granted.

Throughout the period on appeal, a disability rating greater than 10 percent for polyarthralgia of the right knee, based on limitation of motion, is denied. 

From May 20, 2021 and no earlier, a separate 10 percent rating for polyarthralgia of the right knee, based on mild subluxation or instability, is granted.

From November 4, 2015 and no earlier, a 20 percent disability rating for polyarthralgia of the right ankle is granted.

From January 6, 2014 and no earlier, a 20 percent disability rating for polyarthralgia of the left ankle is granted.

Before October 4, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

Before November 4, 2015, special monthly compensation (SMC) at the total plus 60 percent rate is denied. 

Entitlement to a certificate of eligibility for one automobile and adaptive equipment, or for adaptive equipment only, is denied. 

REMANDED

Entitlement to service connection for cataracts, to include as caused or aggravated by steroid medication used to treat the Veteran's service-connected polyarthralgia, is remanded.

Before October 9, 2018, entitlement to a disability rating greater than 10 percent for polyarthralgia of the left knee, based on limitation of motion, is remanded.

Before October 9, 2018, entitlement to a separate disability rating for polyarthralgia of the left knee, based on recurrent subluxation or lateral instability, is remanded. 

Since October 9, 2018, entitlement to a disability rating greater than 10 percent for polyarthralgia of the left knee, based on recurrent subluxation or lateral instability, is remanded. 

Throughout the period on appeal, entitlement to a separate disability rating for polyarthralgia of the left knee, based on a torn meniscus, is remanded. 

FINDINGS OF FACT

1. The Veteran's lumbar spine polyarthralgia is manifest by daily low back pain with muscle spasm and an antalgic gait. Although limited and painful, forward flexion of the thoracolumbar spine is not manifest by forward flexion of 30 degrees or less, nor ankylosis. 

2. The Veteran is right hand dominant. 

3. Before July 19, 2019, the Veteran's polyarthralgia of the right shoulder is manifested by painful motion of the major extremity, but motion of the right arm is not limited to midway between the side and shoulder or worse. 

4. Since July 19, 2019, the Veteran's polyarthralgia of the right shoulder is manifest by painful limitation of motion of the right arm midway between the side and shoulder level, but greater than 25 degrees from the Veteran's side.  

5. Throughout the period on appeal, the Veteran's polyarthralgia of the left shoulder is manifested by painful motion of the minor extremity, but motion of the left arm is not limited to 25 degrees from the Veteran's side or less. 

6. Throughout the period on appeal, the Veteran's polyarthralgia of the right and left elbows is not limited to flexion of the forearm of 90 degrees or less. 

7. Throughout the period on appeal, the Veteran is in receipt of the highest available schedular rating for his right and left elbow disabilities based on limitation of supination. 

8. Throughout the period on appeal, the Veteran's polyarthralgia of the right and the left hand is manifest by stiffness, decreased grip strength, intermittent sharp stabbing pain, and painful motion of the hands and fingers, although the Veteran has generally maintained dextrous finger control. 

9. The Veteran experiences painful motion of the right and left hand as collectively relates to each individual finger or digit. 

10. Throughout the period on appeal, the Veteran is in receipt of the highest available schedular rating for his right and left index fingers, long fingers, ring fingers and littles finger based on painful motion due to arthritis. 

11. At no time during this appeal has the Veteran exhibited a gap of more than two inches (5.1 centimeters) between his thumb pad and the fingers with the thumb attempting to oppose the fingers on either hand. 

12. Throughout the period on appeal, the Veteran's right knee polyarthralgia is manifest by painful motion not limited to 45 degrees of flexion or less, or 10 degrees of extension or more. 

13. From May 20, 2021 and no earlier, the Veteran described experiencing sensations of instability or "giving out" of the right knee. 

14. From July 3, 2013 to November 4, 2015, the Veteran's polyarthralgia of the right ankle is manifested by no more than moderate limitation of motion of the ankle.

15. Since November 4, 2015, the Veteran's polyarthralgia of the right ankle is manifest by marked limitation of motion of the ankle rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle joint.

16. From July 3, 2013 to January 6, 2014, the Veteran's polyarthralgia of the left ankle is manifested by no more than moderate limitation of motion of the ankle.

17. As of January 6, 2014, the Veteran's polyarthralgia of the left ankle is manifested by marked limitation of motion of the ankle rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle joint. 

18. The Veteran resigned from full-time employment with October 3, 2013 as the end date of his employment; this position did not constitute marginal employment. 

19. From December 2, 2011 until October 3, 2013, the Veteran was engaged in substantially gainful employment.  

20. Before November 4, 2015, the Veteran did not have a single service-connected disability rated as 100 percent disabling (including TDIU), plus an additional service-connected disability or disabilities independently ratable at 60 percent. 

21. The Veteran's service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes of a severity specified by regulation, severe burn injury, or amyotrophic lateral sclerosis. 

22. The Veteran does not have ankylosis of one or both knees or hips.

CONCLUSIONS OF LAW

1. The criteria have not been met for a rating greater than 20 percent for polyarthralgia of the lumbosacral spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5002-5237 (before February 7, 2021), 5003-5237 (since February 7, 2021).

2. Before July 19, 2019, the criteria have not been met for a rating greater than 20 percent for polyarthralgia of the right shoulder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5201.

3. Since July 19, 2019, the criteria have not been met for a rating greater than 30 percent for polyarthralgia of the right shoulder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5201 (before February 7, 2021), 5003-5201 (since February 7, 2021).

4. The criteria have not been met for a rating greater than 20 percent for polyarthralgia of the left shoulder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5201 (before February 7, 2021), 5003-5201 (since February 7, 2021).

5. The criteria have not been met for a rating greater than 10 percent for polyarthralgia of the right elbow, based on limitation of flexion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5206 (before February 7, 2021), 5003-5206 (since February 7, 2021).

6. The criteria have not been met for a rating greater than 10 percent for polyarthralgia of the left elbow, based on limitation of flexion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5206 (before February 7, 2021), 5003-5206 (since February 7, 2021).

7. The criteria have not been met for a rating greater than 10 percent for polyarthralgia of the right elbow, based on limitation of supination. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5213 (before February 7, 2021), 5003-5213 (since February 7, 2021).

8. The criteria have not been met for a rating greater than 10 percent for polyarthralgia of the left elbow, based on limitation of supination. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5213 (before February 7, 2021), 5003-5213 (since February 7, 2021).

9. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the right thumb. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5228.

10. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the left thumb. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5228.

11. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the right index finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229.

12. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the left index finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229.

13. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the right middle finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229.

14. From December 2, 2011 to October 9, 2018, the criteria have been met for a separate 10 percent disability rating for painful motion of the left middle finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229.

15. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the right thumb. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5228 (before February 7, 2021), 5003-5228 (since February 7, 2021).

16. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the left thumb. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5228 (before February 7, 2021), 5003-5228 (since February 7, 2021).

17. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the right index finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229 (before February 7, 2021), 5003-5229 (since February 7, 2021).

18. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the left index finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229 (before February 7, 2021), 5003-5229 (since February 7, 2021).

19. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the right middle finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229 (before February 7, 2021), 5003-5229 (since February 7, 2021).

20. Since October 9, 2018, the criteria have not been met for a rating greater than 10 percent for painful motion of the left middle finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5229 (before February 7, 2021), 5003-5229 (since February 7, 2021).

21. Throughout the period on appeal, the criteria have been met for a zero percent disability rating for polyarthralgia of the right ring finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5230 (before February 7, 2021), 5003-5230 (since February 7, 2021).

22. Throughout the period on appeal, the criteria have been met for a zero percent disability rating for polyarthralgia of the left ring finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5230 (before February 7, 2021), 5003-5230 (since February 7, 2021).

23. Throughout the period on appeal, the criteria have been met for a zero percent disability rating for polyarthralgia of the right little finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5230 (before February 7, 2021), 5003-5230 (since February 7, 2021).

24. Throughout the period on appeal, the criteria have been met for a zero percent disability rating for polyarthralgia of the left little finger. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002-5230 (before February 7, 2021), 5003-5230 (since February 7, 2021).

25. Throughout the period on appeal, the criteria have not been met for a rating greater than 10 percent for polyarthralgia of the right knee, based on limitation of motion.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5002 (before February 7, 2021), 5003 (since February 7, 2021).

26. From May 20, 2021 and no earlier, the criteria have been met to establish a separate 10 percent rating for polyarthralgia of the right knee, based on mild subluxation or instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5003-5257.

27. From November 4, 2015 and no earlier, the criteria are met to establish a 20 percent disability rating, and no higher, for polyarthralgia of the right ankle. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5271 (before February 7, 2021), 5003-5271 (since February 7, 2021).

28. From January 6, 2014 and no earlier, the criteria are met to establish a 20 percent disability rating, and no higher, for polyarthralgia of the left ankle. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5002-5271 (before February 7, 2021), 5003-5271 (since February 7, 2021).

29. Before October 4, 2013, the criteria are not met to establish entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16.

30. Before November 4, 2015, the criteria are not met for special monthly compensation at the housebound, or total plus 60 percent rate. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. § 3.350(i). 

31. The criteria are not met for establishing eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.808.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from November 1971 to November 1991. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2013, November 2015, and April 2016. There has since been a lengthy procedural history in this case, much of which was previously recounted in the Board's January 2019 and September 2020 remands, and that history need not be repeated here. 

The Board does acknowledge for the sake of clarity, however, that the prior January 2019 decision by the Board bifurcated several issues on appeal by denying a given portion of time during the appeal and remanding a separate later portion of time for the same issues. This decision was appealed to the United States Court of Appeals for Veterans Claims, and in December 2019, both parties agreed to a joint motion for partial remand (JMPR) for further explanation of the reasons and bases for the decisions rendered, and in large part this effectively reassociated the entire period on appeal, or in other words, did away with the prior bifurcation. However, it is important to note that the December 2019 JMPR expressly confirmed that the Veteran was not appealing the portion of the Board's January 2019 decision that denied entitlement to a rating greater than 10 percent for bilateral ankle polyarthralgia prior to July 3, 2013, which is why the ankles are not addressed for the period dating back to the original receipt of the Veteran's claim for increased ratings, but instead address the period only from July 3, 2013 to the present because a prior unappealed Board decision on those issues stands as a final ruling. 

Nonetheless, the remaining issues on appeal were last before the Board in September 2020 at which time additional evidentiary development was requested to comply with due process requirements. For all remanded matters except the issue of service connection for cataracts and increased rating for the Veteran's left knee disability that are again remanded below, the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and have now been returned to the Board for further appellate review.

The evidence makes clear that the Veteran obtains most of his recent medical care through non-VA or private medical providers, especially as relevant here, a private primary care provider, rheumatologist, and pain management specialist. Few, if any, records from these medical practices have been provided to VA by the Veteran. The September 2020 remand by the Board instructed that the Veteran be contacted to provide identifying information for all health care providers who have provided treatment for the disabilities on appeal to obtain the necessary authorizations for VA to provide assistance in obtaining these records which may have supported the Veterans claims. Following the remand, in September 2020, the Veteran was sent a letter explaining the process for VA to obtain private treatment records on the Veteran's behalf and he was asked to identify all providers of private medical care for the disabilities on appeal. The Veteran did not respond to this request, and no further obligation remains where a claimant does not cooperate fully with VA's reasonable efforts to obtain the relevant records. 38 C.F.R. § 3.159(c)(1)(i). The appeals will be decided based on the evidence within the record. 

The Board also acknowledges that in some instances, passive range of motion testing of a joint affected by service-connected arthritis was not performed because it was medically contraindicated due to the Veteran's pain on examination and his safety during the examination. See, e.g., VA examination, May 2021. Also, the Veteran has denied experiencing flare-ups of arthritis as it affects his lumbosacral spine, shoulders, elbows, hands, knees, and ankles. In all, when reviewed collectively, the examinations provided by VA have fulfilled VA's duty to assist the Veteran in obtaining evidence in support of his claims, and the Board will proceed with a decision on the rating issues at hand. VA's duty to assist the claimant to obtain evidence in support of the claims decided herein is fulfilled. 

Also, as a preliminary matter, the January 2019 and September 2020 remands listed an additional issue as "Entitlement to a rating in excess of 10 percent for left shoulder polyarthralgia prior to December 2, 2011." The Board finds this to be unnecessary and confusing, as it is not a separate issue but is instead a legally required consideration within the increased rating claim for the left shoulder. To be clear, 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), state the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date. This is sometimes referred to informally as a "look back period" before the date that an increased rating claim was received. In this case, the date that the claim in question was received by VA was December 2, 2011. As such, the Board has examined all available evidence for the period from December 2, 2010 to December 2, 2011 to determine if a factually ascertainable increase in any claimed disability occurred during that allowable period as it is part of the existing claim, including that for an increased rating for the left shoulder. However, the claim itself does not predate December 2, 2011 and a separate issue on appeal for that period of time is not warranted. 

INCREASED RATINGS

Disability ratings are based on the average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities.

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

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Facial expression, wincing, etc., on pressure or manipulation is carefully noted and related to the affected joints in assessing manifestations of painful motion. 38 C.F.R. § 4.59. 

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Where, however, evidence weighs against a claim for any benefit sought, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

The Veteran's polyarthralgia disabilities have been evaluated under Diagnostic Code (DC) 5002 as chronic residuals of rheumatoid arthritis. Under DC 5002, rheumatoid arthritis as an active process is rated 20 percent disabling with one or two exacerbations a year in a well-established diagnosis, 40 percent disabling with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year, 60 percent disabling where symptoms are less than the criteria for a 100 percent rating, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or lesser number over prolonged periods, and 100 percent disabling with constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71A, Diagnostic Code 5002 (in effect prior to February 7, 2021). 

Under the same DC 5002, for chronic residuals of rheumatoid arthritis prior to February 7, 2021, with residuals such as limitation of motion or ankylosis, favorable or unfavorable, disability is 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. Id. 

Effective February 7, 2021, during the process of this appeal, DC 5002 was changed from "Arthritis rheumatoid" to "multi-joint arthritis (except post-traumatic and gout), 2 or more joints, as an active process." The rating criteria for the active process as listed two paragraphs above were not changed otherwise. However, the criteria pertaining to rating based on chronic residuals was removed from this diagnostic code and notes were added to state that examples of conditions rated using this diagnostic code include, but are not limited to, rheumatoid arthritis, psoriatic arthritis, and spondyloarthropathies (Note 1). For chronic residuals of multi-joint arthritis, disability is now to be rated using diagnostic code 5003 (Note 2). Further, the ratings for the active process will not be combined with the residual ratings for limitation of motion or, ankylosis, or diagnostic code 5003, and instead, the higher evaluation is to be assigned (Note 3). 38 C.F.R. § 4.71A, Diagnostic Code 5002 (in effect since February 7, 2021).

In short, chronic residuals of rheumatoid arthritis were ratable under Diagnostic Code (DC) 5002 before February 7, 2021, but only ratable under DC 5003 for degenerative arthritis after February 7, 2021. The diagnostic codes used in this appeal have been changed accordingly. The Veteran is advised however, that this has virtually no substantive effect on the Veteran's disability ratings, because under either diagnostic code his service-connected polyarthralgia is rated based on the limitation of motion of the specific joint or joints involved, or a 10 percent rating where limitation of motion is not compensable but there is evidence of painful motion of that joint. 38 C.F.R. §§ 4.59, 4.71A. 

The Board has considered whether at any time during the present appeal a higher combined rating would be available were the Veteran's rheumatoid arthritis to be rated on the basis of an active process as opposed to the currently rated chronic residuals based on painful motion and limited motion of the affected joints, but finds that a rating greater than the combined ratings established below for chronic residuals is not available under the criteria for active process because at no time during the present appeal has the Veteran exhibited constitutional manifestations of rheumatoid arthritis associated with active joint involvement that is totally incapacitating, which would be required for a 100 percent rating for rheumatoid or multi-joint arthritis as an active process. 38 C.F.R. § 4.71A, DC 5002. Thus, the Board focuses on rating the affected joints based on painful motion or limitation of motion relevant to each joint or group of joints as discussed below. 

The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to the present appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to each claim.

1. A disability rating greater than 20 percent for polyarthralgia of the lumbosacral spine is denied. 

The Veteran describes his low back disability as manifest by a persistent dull aching pain that is worse with prolonged sitting, prolonged standing, lifting, walking, or bending. See, e.g., VA examination, May 2021. He denies flare-ups affecting the thoracolumbar spine. Id. 

The Veteran's lumbosacral spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5002-5237 (before February 7, 2021), and 5003-5237 (since February 7, 2021). The hyphenated notation seen for this rating and others addressed below designates that the disability rating is based upon chronic residuals of rheumatoid arthritis, now known as multi-joint arthritis, (the code before the hyphen) where limitation or painful motion is evaluated under the appropriate diagnostic codes for the specific joint or joints involved (the code after the hyphen), which in this instance denotes limitation of motion for the lumbosacral spine. 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.  

Here, the Veteran subjectively describes back pain that radiates into his left leg "sometimes," which he is competent to report as symptoms experienced with his own senses. See VA examination, May 2021. The Board has no reason to doubt this description. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his multi-joint arthritis of the lumbosacral spine, which is a medically complex determination that cannot be based on lay observation alone.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. 

In contrast, the record does not reflect that there is any associated objective neurological abnormality associated with his lumbosacral spine polyarthralgia. Instead, straight leg raising tests which may suggest radiculopathy, when performed have been negative, and medical examiners have explicitly found that the Veteran does not have radicular pain or other signs or symptoms due to radiculopathy, and that he has no other neurological abnormalities or findings related to his thoracolumbar spine condition. See, e.g., VA examinations, July 2013, July 2019 & May 2021. On this basis, the Board finds that the Veteran is not shown to have any objective neurological abnormality associated with his lumbosacral spine arthritis, and the Board turns to the Veteran's limitation of motion of the affected joint as the basis for this disability rating. 

The Board finds that the preponderance of the evidence is against a rating greater than 20 percent for polyarthralgia of the lumbosacral spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and disturbance of locomotion. The Veteran denies experiencing flare-ups of his lumbosacral spine disability. 

In all, the evidence does not show that the Veteran at any time during the appeal has exhibited forward flexion of the thoracolumbar spine to 30 degrees or less, or any ankylosis of the lumbosacral spine. See, e.g., VA examinations, May 2021 (forward flexion to 50 degrees), July 2019 (to 50 degrees), November 2015 (to 60 degrees) and July 2013 (greater than 90 degrees). When taken together, the examinations do not show that additional loss of function or range of motion was present after repetitive use or repeated use over time, nor was pain, weakness, fatigability, or incoordination found to significantly limit functional ability with repeated use over time. 

In all, the preponderance of the evidence is against the Veteran's claim for a rating greater than 20 percent for his multi-joint arthritis of the lumbosacral spine. 

2. Before July 19, 2019, a disability rating greater than 20 percent for polyarthralgia of the right shoulder is denied. 

The Veteran's right shoulder polyarthralgia is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5002-5201, which designates a rating for rheumatoid arthritis or multi-joint arthritis based upon limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201.  

Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

The Board finds that the preponderance of the evidence is against a rating greater than 20 percent for the right shoulder before July 19, 2019.  The evidence shows that the Veteran is right-handed, thus the right arm is the dominant or major arm for rating purposes. See VA examinations. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, however, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's reports would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity.  

Upon VA examination in July 2013, the Veteran's right shoulder was manifest by stiffness, pain, and decreased range of motion. The Veteran denied flare-ups impacting the function of the shoulder. Right shoulder flexion was demonstrated at 120 degrees (where 180 is normal). Painful motion began at 100 degrees. Abduction was 90 degrees, with painful motion beginning at that point. This equates to limitation of motion at the shoulder level only. 

A state Vocational Rehabilitation evaluation record from January 2014 documents even greater range of motion, above shoulder level, with 130 degrees of flexion, 110 degrees of abduction, and full adduction, internal rotation, and external rotation of the right shoulder. 

The November 2015 VA examination showed right shoulder flexion to 90 degrees, abduction to 80 degrees, and full external and internal rotation. 

In all, the evidence does not show that the Veteran's right arm was limited to motion midway between the Veteran's side and shoulder level, but instead reflects that the Veteran's right arm motion is limited at the shoulder level, or at worst above the midway mark between the Veteran's side and shoulder level. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code because the Veteran does not exhibit ankylosis of scapulohumeral articulation, or impairment of the humerus, clavicle or scapula, and the rating criteria for rheumatoid arthritis dictate rating by limitation of motion. See 38 C.F.R. § 4.71a. 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating greater than 20 percent for his right shoulder before July 19, 2019, and the appeal is denied. 

3. Since July 19, 2019, a disability rating greater than 30 percent for polyarthralgia of the right shoulder is denied. 

Effective February 7, 2021, VA amended Diagnostic Code 5201, upon which the Veteran's right shoulder rating is based, to reflect that limitation of motion may be shown by flexion and/or abduction with explicitly clarified degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.

The July 2019 VA examination found 40 degrees of forward flexion and abduction, with 55 degrees external rotation and 65 degrees of internal rotation. This range of motion meets the criteria for a 30 percent rating for the major extremity because flexion/abduction was less than 45 degrees which is defined as limitation midway between the Veteran's side and shoulder level. The Veteran was subjectively noted to be unable to reach overhead as functional loss due to pain. There was objective evidence of crepitus. The examination report did not adequately describe estimated range of motion after repeated use over time and observed repetitive use testing was not completed because the Veteran described that such testing would be too painful, so an additional examination was afforded.

The July 2021 VA examination again reflected no flare-ups affecting the shoulder. Range of motion was greater than the prior examination at 80 degrees of flexion, 60 degrees of abduction, 75 degrees of internal rotation and 45 degrees of external rotation. Passive range of motion reflected the same as active range of motion. The Veteran was noted to have "difficulty" with overhead work or lifting anything overhead and was unable to throw objects or push/pull heavy objects. There was no objective evidence of crepitus on this examination. The Veteran was able to perform repetitive use testing, and there was no additional loss of function or range of motion after three repetitions. Although the Veteran was not examined immediately after repeated use over time, the examiner estimated that range of motion of the shoulder would be further limited by pain and would produce flexion to 75 degrees, abduction to 55 degrees, internal rotation to 70 degrees, and external rotation to 40 degrees. 

The evidence shows that the Veteran's right shoulder, since July 19, 2019, has been limited by painful motion to no worse than 40 degrees of flexion/abduction, and is not limited to 25 degrees from the Veteran's side. On this basis, a higher 40 percent disability rating is not warranted, and the claim must be denied. 

4. A disability rating greater than 20 percent for polyarthralgia of the left shoulder is denied. 

The Veteran's left shoulder disability is also rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm as listed above. Because the Veteran is right-handed, the left arm is the non-dominant or "minor" extremity for rating purposes. The Board ultimately finds that based on the evidence in its entirety, no greater than a 20 percent rating is warranted throughout the appeal period because at no time is the Veteran's left arm motion shown to be limited to 25 degrees from the Veteran's side, as is required to warrant the only higher (30 percent) rating available for limitation of motion of the minor extremity. 

Upon examination in July 2013, the left shoulder exhibited 105 degrees of flexion with painful motion beginning at 90 degrees, 155 degrees of abduction with evidence of painful motion at 120 degrees. Range of motion remained consistent with the above measurements after repetitive use testing. 

The January 2014 state Vocation Rehabilitation range of motion testing showed 130 degrees of flexion, 110 degrees of abduction, and full adduction and rotation, both internal and external for the left shoulder. 

The November 2015 VA examination showed, left shoulder flexion to 140 degrees, abduction to 80 degrees, and full external and internal rotation.

The July 2019 VA examination reflected range of motion measurements of 55 degrees of flexion and abduction, 30 degrees of external rotation, and 75 degrees of internal rotation. Pain and crepitus were noted on examination. 

Although the above examinations may not have been complete in all respects, there is nothing to indicate that the initial ranges of motion reported were inaccurate. 

Finally, the May 2021 VA examination shows 105 degrees of flexion, 85 degrees of abduction, 60 degrees of internal rotation, and 55 degrees of external rotation. Pain without crepitus was noted. No additional loss of function or reduced range of motion was shown after observed repetitive use. Although the Veteran was not examined immediately after repeated use over time, the examiner estimated range of motion of the left shoulder after repeated use over time to be limited to 100 degrees of flexion, 80 degrees of abduction, 55 degrees of internal rotation, and 50 degrees of external rotation. 

Based on the record in its entirety, and the VA examination results collectively, the Board finds that the preponderance of the evidence is against a rating greater than 20 percent at any time during the appeals period for the Veteran's left shoulder disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and stiffness. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by those statements would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the Veteran's side. The criteria are not met for a rating greater than 20 percent for polyarthralgia (multi-joint arthritis) of the left shoulder, and the appeal must be denied.  

5. A disability rating for polyarthralgia of the right and left elbows, greater than 10 percent for each elbow based on limitation of flexion, is denied. 

The Veteran's right and left elbow polyarthralgia disabilities, as manifested by limitation of flexion, are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5206. 

Diagnostic Code 5206 provides the rating criteria for limitation of flexion of the forearm. A 10 percent rating is assigned for flexion limited to 100 degrees for either arm; a 20 percent rating is assigned for flexion limited to 90 degrees for either arm; for flexion limited to 70 degrees, a 20 percent rating is assigned for the minor arm and a 30 percent rating is assigned for the major arm; for flexion limited to 55 degrees, a 30 percent rating for the minor arm and a 40 percent rating for the major arm; and for flexion limited to 45 degrees, a 40 percent rating for the minor arm and a 50 percent rating for the major arm. 

Full (normal or unimpaired) range of motion of the elbow joint is as follows: extension and flexion from zero to 145 degrees, full pronation to 80 degrees, and full supination to 85 degrees. 38 C.F.R. § 4.71 Plate I.

Upon VA examination in July 2013, the Veteran's elbow disabilities were described as primarily manifest by pain and stiffness. The Veteran denied flare-ups affecting the elbow and/or forearm. Range of motion of the elbow was documented to be full flexion bilaterally, with pain beginning at 100 degrees for the right elbow and 110 degrees for the left elbow. No limitation of extension was exhibited for either elbow, with no objective evidence of painful motion in extension for either elbow. After repetitive use testing, the Veteran continued to exhibit full flexion in both elbows. 

The January 2014 state Vocational Rehabilitation range of motion testing reflected full range of motion in flexion and extension for both elbows. 

The November 2015 VA examination showed right elbow flexion and extension from zero to 105 degrees, and left elbow flexion and extension from zero to 100 degrees. 

The July 2019 VA examination showed right elbow flexion and extension from zero to 115 degrees, and left elbow flexion and extension from zero to 125 degrees. 

Finally, at the May 2021 VA examination, the Veteran continued to deny flare-ups of the elbow or forearm. He described experiencing bilateral elbow aching pain (frequent for right elbow and intermittent for left elbow), that is worse with repetitive use, lifting, pushing, and pulling. Range of motion testing showed right elbow flexion and extension from zero to 120 degrees, and left elbow flexion and extension from zero to 130 degrees. Pain on motion was noted on flexion of the right elbow. Passive ranges of motion were the same as active ranges of motion bilaterally. No crepitus was observed. No additional loss of function or range of motion was shown after repetitive use testing with three repetitions. Although the Veteran was not examined immediately after repetitive use over time, the examiner estimated that additional functional loss due to pain would result in right elbow flexion to 115 degrees and left elbow flexion to 125 degrees.  

Based on the record in its entirety, and the VA examination results collectively, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent at any time during the appeals period for the Veteran's right and left elbow disabilities. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and stiffness. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by those statements would not result in symptoms more nearly approximating limitation of motion to 90 degrees or less for either arm. 

The Board also considered whether any other Diagnostic Codes are applicable, beyond the rating for limitation of supination of the forearm discussed below, but finds that limitation of extension is not demonstrated, and no other elbow or forearm disability is shown as attributable to the Veteran's multi-joint arthritis. In all, the criteria are not met for a rating greater than 10 percent each for polyarthralgia (multi-joint arthritis) of the right and left elbow, based on limitation of flexion, and the appeal must be denied.  

6. A disability rating for polyarthralgia of the right and left elbows, greater than 10 percent for each elbow based on limitation of supination, is denied. 

Elbow and forearm disabilities based on limitation of supination have only one rating available in the Rating Schedule; a 10 percent rating is warranted where supination is limited to 30 degrees or less, whether it be for the major or minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5213. The Veteran has been awarded the highest schedular rating available for limitation of supination of each elbow throughout the relevant appeals period. 

If a musculoskeletal disability is evaluated at the highest schedular evaluation available upon limitation of motion, then a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. See Johnston v. Brown, 10 Vet. App. 80 (1997).

Although the Board has considered whether any other Diagnostic Codes are applicable, there is no evidence of limitation of pronation or bone fusion such that supination and pronation are lost and the hand is fixed in a position described by the regulation, nor any other ratable impairment of the elbow joints for which service connection is not already in effect. See, e.g., VA examinations (showing range of motion of the forearm may be limited, but that motion is retained, and supination and pronation are not lost). 

As the Veteran is in receipt of the highest schedular rating for limited motion of the right and left elbow based on supination, there is no basis to award a higher rating and the appeal is denied. 

7. From December 2, 2011 to October 9, 2018, in place of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right thumb is granted.

8. From December 2, 2011 to October 9, 2018, in place of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left thumb is granted.

9. From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right index finger is granted.

10. From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left index finger is granted.

11. From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the right middle finger is granted.

12. From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, a separate 10 percent disability rating for painful motion of the left middle finger is granted. 

From December 2, 2011 to October 9, 2018, instead of a 10 percent rating for the bilateral hands, separate 10 percent disability ratings for polyarthralgia of the right and left thumbs, right and left index fingers, and right and left middle fingers, consistent with the ratings established since October 9, 2018, are granted. These ratings will take the place of the previously assigned 10 percent rating for the bilateral hands. 

During this period of the appeal, a 10 percent rating was assigned based upon painful motion of the bilateral hands. See 38 C.F.R. § 4.59. Although separate ratings were assigned for other bilaterally paired joints, such as ankles, knees, elbows, wrists, and shoulders, it is unclear why the Agency of Original Jurisdiction elected to combine the rating for the hands into a single 10 percent rating assigned to both hands. 

Then, as of October 9, 2018, the Agency of Original Jurisdiction awarded separate ratings for each of these fingers based on painful motion. See Rating decision, November 2018. The effective date of this change was linked to a form perceived to be the Veteran's intent to file a claim. Id. However, a claim of increased rating for polyarthralgia of the hands has been ongoing since December 2, 2011, and the Veteran's symptoms affecting the hands have been generally consistent throughout the appeals period reflecting painful motion of the fingers and hands even where there is no objective limitation of motion. In all, the Board finds that separate ratings equivalent to the minimum compensable rating for the finger joints is warranted throughout the appeals period. 38 C.F.R. § 4.59. 

However, the Board finds that no higher than a 10 percent rating is warranted for any of the Veteran's thumb, index or middle fingers because although the Veteran's service-connected polyarthralgia of the hands was manifest by stiffness, decreased grip strength, and intermittent sharp stabbing pain, the Veteran maintained dextrous finger control. 

Shortly before the December 2011 date of the current claim for an increased rating, x-ray evidence confirmed that no radiographic findings suggested rheumatoid arthritis present for either hand. See Private treatment record, July 2011. 

A July 2013 VA examination then confirmed polyarthralgia affecting both hands. The Veteran described stiffness in his hands with sharp stabbing pain that was worse in the mornings. Pain was also noted to worsen with increased usage such as using a computer mouse. The Veteran denied flare-ups impacting the function of the hands. Upon examination, no limitation of motion of any fingers or thumbs was demonstrated, nor did the examiner note any painful motion for any fingers or the thumbs. The examiner found that there was no functional loss or functional impairment of either hand, any fingers, or any thumbs. In this respect, no compensable rating would be warranted where there is no functional impairment present. However, as a 10 percent rating has already been established for this period, the Board not only will not disturb that rating, but is compelled to correct the error of applying a single rating only where the hands are separate groups of minor joints. 

During a November 2015 VA examination, the Veteran reported experiencing worsening in the right hand while left hand pain remained stable. He experienced symptoms of constant dull aching pain in the metacarpophalangeal (MCP) joints and proximal interphalangeal (PIP) joints with intermittent sharp or shooting pain daily, along with grip and control challenges using the hands. The Veteran continued to deny any flare-ups of the hand, finger, or thumb joints. Range of motion remained normal for both hands, and no objective evidence of pain was noted upon examination of the hands, fingers, and thumbs. Grip strength was noted to be a 4 out of 5 for the right hand with active movement against some resistance, and full grip strength for the left hand. Functional impact was described by the examiner as hand pain affecting the right-hand grip strength which resulted in the Veteran being unable to hold onto objects for a long time. 

Based on the above, although no compensable limitation of motion is demonstrated, the Veteran is found to have actually painful joints of the right and left hands. As such, separate 10 percent ratings for the thumb, index, and middle fingers of each hand, as the minimum compensable rating, and no higher, are warranted. 

13. Since October 9, 2018, a disability rating greater than 10 percent for polyarthralgia of the right thumb is denied. 

14. Since October 9, 2018, a disability rating greater than 10 percent for polyarthralgia of the left thumb is denied. 

Under Diagnostic Code 5228, for limitation of motion of the thumb, with a gap of one to two inches (2.5 to 5.1 cm), with the thumb pad attempting to oppose the fingers, a 10 percent rating is warranted. With 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, a 20 percent rating is warranted. Thumb disabilities based on limitation of motion are rated the same for either a major or minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5228.

A November 2018 VA examination report states that since the prior examination, the Veteran experienced onset of weakness in the right hand and began dropping things from that hand earlier in 2018. He could no longer make a fist without severe pain, joints were swelling more, the Veteran reported no grasping strength, and he reported that his thumb joint had become loose and hyperextended easily. The Veteran continued to deny flare-ups of the hand, finger, or thumb joints. He described the functional loss stemming from his hand disabilities as being unable to unscrew the top of a jar, tie his shoes, use hand tools, and struggling with buttons on clothing. For his dominant right hand specifically, he reported being unable to twist a doorknob, hold a pen for handwriting, use a computer mouse, zip his pants, or fasten a coat with that hand.

VA examinations during this period noted limitation of motion of the thumb joints of the right hand. Upon examination in November 2018, the Veteran demonstrated a 1.0 centimeter gap between the pad of the right thumb and the fingers, and no gap for the left thumb. In July 2019, the same measurement showed a 3.0 centimeter gap for the right thumb, and again no gap for the left thumb. 

The May 2021 VA examination then showed all range of motion measurements were normal for each hand. There was no gap between the pad of the thumb and the fingers of either hand. 

In all, at no time during the present appeal has the Veteran demonstrated 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. As such, a rating greater than 10 percent is not warranted. 38 C.F.R. § 4.71A, DC 5228. 

15. Since October 9, 2018, a rating greater than 10 percent for polyarthralgia of the right index finger is denied. 

16. Since October 9, 2018, a disability rating greater than 10 percent for polyarthralgia of the left index finger is denied. 

17. Since October 9, 2018, a disability rating greater than 10 percent for polyarthralgia for the right middle finger is denied. 

18. Since October 9, 2018, a disability greater than 10 percent for polyarthralgia of the left middle finger is denied. 

Under DC 5229, for limitation of motion of the index or long finger, a zero percent rating is to be assigned with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent rating is to be assigned with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71A, Diagnostic Code 5229. 

Here, the Veteran is already in receipt of a 10 percent rating based on painful motion for each index and middle finger. As the Veteran is in receipt of the highest schedular rating for limited motion of the right and left index and middle fingers, there is no basis to award a higher rating for any of these fingers and the appeal is denied.

19. Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the right ring finger is granted.

20. Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the left ring finger is granted.

21. Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the right little finger is granted.

22. Throughout the period on appeal, a zero percent disability rating for polyarthralgia of the left little finger is granted.

The Board notes that the Veteran was previously granted service connection for polyarthralgia of the "bilateral hands". Rating decision, March 2003. The hands include the ring and little fingers. 38 C.F.R. § 4.71A, Plate III. Although compensable ratings are not available for the little and ring fingers, and any limitation of motion of these fingers is explicitly assigned a zero or noncompensable rating, service connection is nonetheless already in effect for these digits and should be reflected as such. See, e.g., Rating decision, November 2018 (terminating rating for "bilateral hands" and awarding separate compensable ratings for 3 fingers of each hand, neglecting to include remaining 2 fingers of each hand); 38 C.F.R. § 4.71A, DC 5230. 

However, as the Veteran is now in receipt of the highest schedular rating (at zero percent) for any limited motion of the right and left ring or little fingers, there is no basis to award a higher rating.

23. Throughout the period on appeal, a disability rating greater than 10 percent for polyarthralgia of the right knee, based on limitation of motion, is denied.

As an initial matter, service connection is in effect for rheumatoid arthritis or polyarthralgia of the right knee. However, the Veteran has also been diagnosed with osteoarthrosis or osteoarthritis of the right knee. See, e.g., VA examination, July 2013; Private x-ray records, January 2010. Osteoarthritis has not been disassociated from the service-connected right knee disability. As such, VA will resolve any reasonable doubt in the Veteran's favor and consider his limitation of motion of the knees as due to the service-connected polyarthralgia disability. See Mittleider v. West, 11 Vet. App. 181 (1998); 38 C.F.R. § 3.102. 

As discussed above, regardless of whether the diagnostic code 5002 or 5003 is used, the Veteran's right knee polyarthralgia continues to be evaluated based on the limitation of motion of the specific joint involved, and where such limitation is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71A, Diagnostic Codes 5002 & 5003. 

The Veteran's service-connected right knee polyarthralgia is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5002 before February 7, 2021, and under Diagnostic Code 5003 since February 7, 2021. The knee joint in general may be rated under various diagnostic codes. DCs 5256, 5258, 5259, 5262, and 5263 are not relevant here as this Veteran does not have ankylosis of the right knee, and does not have dislocated semilunar cartilage (also known as a torn meniscus) of the right knee, or malunion or nonunion of the tibia and fibula, or genu recurvatum, so the criteria under these diagnostic codes are not considered further. See, e.g., VA examination, May 2021; 38 C.F.R. § 4.71A. 

Other disability ratings may be assigned only where the symptoms of a given disability are not duplicative or overlapping with the symptoms of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

The Board finds that instability of the knee right knee joint is at least as likely present from May 20, 2021 and that rating is granted below. However, for this period, pain and limitation of motion are the symptoms described or shown by the Veteran's right knee disability, and thus the Board will discuss DCs 5260 and 5261 which relate to limitation of flexion and extension of the knee joint. 38 C.F.R. § 4.71A. 

Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 

Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees.

Upon VA examination in July 2013, the Veteran described his knees as being painful and stiff, with the left knee worse than the right. There were no flare-ups impacting the function of the knee and lower leg. Right knee range of motion was exhibited as 125 degrees of flexion (with painful motion beginning at that point) and full extension. There was no further limitation of motion after repetitive use testing. The right knee exhibited normal muscle strength, no instability, and no patellar subluxation or dislocation on joint testing. 

The January 2014 state Vocational Rehabilitation testing shows right knee flexion to 80 degrees. 

Upon examination in November 2015 the Veteran described constant aching of the knee with right knee pain that was a 3 out of 10 on a pain scale, but described as being worse with activities. The Veteran stated he could not stand for more than 10 to 15 minutes at a time because of his knee pain. Range of motion of the right knee was 60 degrees of flexion and full extension. There was no evidence of pain on weight bearing or crepitus. The Veteran performed repetitive use testing without any additional loss of function or range of motion. There was no history of recurrent subluxation or lateral instability noted for the right knee. 

A November 2018 examination focused on impairment presented by the Veteran's left knee disability, but in so doing, also evaluated the range of motion of the right knee. Again, full extension was demonstrated with flexion to 90 degrees. Pain was noted during examination on flexion of the right knee joint. Repetitive use testing was not conducted. 

Upon examination in May 2021, the Veteran stated that when knee pain began during the 1990s, it was worse in the right knee. As years progressed, the left knee became significantly worse with persistent left knee pain, but right knee pain was occasional with stairs or repetitive use. The Veteran again confirmed no flare-ups related to the right knee or lower leg. Range of motion testing of the right knee showed full extension and 95 degrees of flexion. Pain was exhibited with both flexion and extension. Passive range of motion was the same as active. Repetitive use testing did not result in any additional loss of function or range of motion. Although the Veteran was not examined immediately after repeated use over time, the examiner estimated additional loss of motion to be 90 degrees of flexion while maintaining full extension. 

Considering the evidence in its entirety, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for polyarthralgia of the right knee, because at no time during the present appeal is the Veteran shown to have any limitation of extension or a compensable limitation of flexion. Instead, limitation of flexion to no worse than 60 degrees, which warrants a zero percent rating, was shown. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating flexion limited to 45 degrees. 

In all, at no time during the present appeal has the Veteran shown a compensable limitation of motion of the right knee. As such, a rating greater than 10 percent is not warranted, and the appeal must be denied. 38 C.F.R. § 4.71A. 

24. From May 20, 2021 and no earlier, the criteria are met to establish a separate 10 percent rating for polyarthralgia of the right knee, based on mild subluxation or instability. 

Upon examination on May 20, 2021, the Veteran first described that both knees give out, although he described the left side as worse than the right. This is the first factually ascertainable evidence of right knee instability, as prior examinations reported the Veteran's descriptions of only the left knee giving out. 

Although recurrent patellar instability is not shown by examination, the objective medical evidence in this case is not categorically more probative that the Veteran's own lay statements regarding his sensations of giving way or instability of the right knee. See English v. Wilkie, 30 Vet. App. 347 (2018). The Board will resolve all reasonable doubt in favor of the Veteran and assign a 10 percent rating for slight instability of the right knee from May 20, 2021. As right knee pain is described as occurring only occasionally, and that both knees "can" give out with no frequency described, a rating for no greater than slight instability is warranted. 38 C.F.R. § 4.71A, Diagnostic Code 5003-5257. 

25. From November 4, 2015 and no earlier, the criteria are met to establish a 20 percent disability rating for polyarthralgia of the right ankle.

The Veteran's polyarthralgia of the right ankle is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limitation of motion of the ankle. Id.  

Prior to February 7, 2021, the rating criteria did not include a definition of the terms "moderate" and "marked" within the rating schedule. However, the Merriam Webster dictionary defines "moderate" as meaning "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. While "marked" is defined as meaning "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked.

Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271 and included explicit degree measurements for "moderate" and "marked" limitations. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Of note, the rating criteria were changed only to add clarification with specific range of motion measurements in addition to the existing descriptors and assigned ratings.  

Full range of motion of the ankle joint includes dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71 Plate II.

In this case, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for the Veteran's right ankle polyarthralgia before November 4, 2015 because his right ankle polyarthralgia was manifest by no greater than moderate limitation of motion during this period. However, by examination on November 4, 2015, and no earlier, the Veteran's right ankle plantar flexion is limited to 10 degrees, which the Board finds to be indicative of marked limitation of motion in this case prior to the specific degree measurements assigned by the later regulation change. 

The July 2013 VA examination report describes multi-joint pain due to the Veteran's service-connected arthralgia, which included bilateral ankle pain. Right ankle plantar flexion was exhibited to 20 degrees with painful motion beginning at the same point. Dorsiflexion (extension) was exhibited to 10 degrees with painful motion beginning at the same point. In both case, half or nearly so of normal range of motion was maintained. After repetitive use testing, no additional functional loss or limitation of motion was observed. Less movement than normal, excess fatigability, pain on movement, and disturbance of locomotion were present. The Veteran retained muscle strength evaluated as a 4 out of 5 indicating active movement against some resistance. VA ankle examination, July 2013. 

The January 2014 state Vocational Rehabilitation examination report shows a greater range of motion than that demonstrated on VA examination with 30 degrees of plantar flexion and 15 degrees of dorsiflexion for the right ankle with pain noted on examination. 

For the period from July 3, 2013 to November 4, 2015, the Board finds no greater than a moderate limitation of motion of the right ankle. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limitation of motion.  

Then, in the November 2015 VA examination report the Veteran describes a constant achy pain in both ankles that becomes worse with walking and/or standing. The Veteran was unable to walk for more than 15 minutes at a time. Range of motion was recorded as 10 degrees for both dorsiflexion and plantar flexion with pain noted during the examination. There was no additional loss of function or range of motion after repetitive use testing. 

The Board finds that the limitation of plantar flexion to 10 degrees, as demonstrated on the November 2015 examination is greater than a moderate amount of limitation and is of greater emphasis. This is less than one quarter of the normal range of motion in plantar flexion of the ankle. In all, the Board finds that a marked limitation of motion of the right ankle exists as of November 4, 2015 the date of this examination, even though subsequent VA examinations do show significantly greater plantar flexion range of motion. To this extent, reasonable doubt is resolved in the Veteran's favor. 

The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating.  However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code, because the Veteran does not have ankylosis, malunion or astragalectomy related to his service-connected polyarthralgia of the ankle. See 38 C.F.R. § 4.71a. 

Thus, since November 4, 2015, the Veteran is shown to have marked limitation of motion of the ankle evaluated as 20 percent disabling. This is the maximum rating available for limited motion of the ankle under the schedular rating criteria, and there is no basis to award a higher rating. The Board therefore does not address the medical findings regarding limitation of motion of the ankle after this date as they provide no greater benefit to the Veteran. The appeal is granted. 

26. From January 6, 2014 and no earlier, the criteria are met to establish a 20 percent disability rating for polyarthralgia of the left ankle.

The Veteran's polyarthralgia of the left ankle is also rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle, with the same criteria discussed above.

From July 3, 2013 to January 6, 2014, the Veteran's left ankle polyarthralgia is not shown to result in more than a moderate limitation of motion. 

The July 2013 examination shows left ankle plantar flexion of 20 degrees with pain beginning at the same point, and dorsiflexion of 10 degrees with pain beginning at the same point. 

The January 2014 state Vocational Rehabilitation examination then shows left ankle plantar flexion of 30 degrees with dorsiflexion of 5 degrees, with pain noted on examination. This measurement on dorsiflexion equates to only one quarter of the normal range of motion in this plane of motion and the Board will resolve reasonable doubt in favor of the Veteran to determine that this is a marked limitation of motion of the left ankle given the facts of this case. 

Thus, since January 6, 2014, the Veteran is shown to have marked limitation of motion of the ankle evaluated as 20 percent disabling. As discussed previously, this is the maximum rating available for limited motion of the ankle under the schedular rating criteria, and there is no basis to award a higher rating. The Board therefore does not address the medical findings after this date regarding limitation of motion of the ankle as they provide no greater benefit to the Veteran. The appeal is granted.  

27. Before October 4, 2013, a TDIU rating is denied.

A TDIU rating may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a).  The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

This Veteran has previously been granted a TDIU rating that became effective on October 4, 2013, the first date after he left full-time employment. However, because evidence of unemployability was submitted during his appeal from assigned disability ratings, a claim for entitlement to a TDIU rating will be considered to have been raised by the record as "part and parcel" of the underlying rating claims dating back to December 2, 2011. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

On this basis, and given the facts of this case, the Board is required to consider whether the period of the appeal during which the Veteran was employed full-time constituted "marginal employment", which is not substantially gainful employment, and would not preclude a TDIU rating before the date currently established. 

For this purpose, marginal employment is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). 

Here, the Veteran reports that his earned income for the 12 months preceding his resignation in October 2013 was over $21,000 which is much greater than the applicable poverty rate, which was less than $12,000 for both the years 2012 and 2013. Therefore, the Veteran's full-time employment is not marginal employment based upon the income earned. 

The Board also has considered whether employment during the 2011 to 2013 period might constitute marginal employment on a facts found basis which includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. 

In a January 2012 statement by the Veteran, he reported that his employment "is reduced and the possibility of termination due to missing work and the inability to perform at the hired level" should warrant a finding of unemployability. It is important to note, however, that the assigned disability ratings in themselves are recognition of the average impairment in earning capacity that results from these disabilities. "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.

In other words, the Board does not dispute that the Veteran was significantly impacted by his service-connected disabilities and the functional impairment that they produced in his everyday life during the period on appeal, including in his occupational setting, as this impairment was the basis for the existing disability ratings and their associated compensation. However, the question now before the Board is whether those service-connected disabilities alone rendered the Veteran unable to secure or follow a substantially gainful occupation, and the evidence weighs against this finding. The Veteran is found to have been engaged in a substantially gainful occupation throughout the period on appeal prior to October 4, 2013. 

The record reflects that for five years prior to the Veteran's resignation in October 2013, he was employed by one company, a fitness equipment business. See, e.g., VA Form 21-4192 provided by the Veteran's employer, November 2012. He worked in an information technology (IT) support position, setting up and trouble-shooting computer equipment. Veteran's statement, October 2013. 

The Veteran's employer stated that the company was aware of his VA disability status at the time that the Veteran was hired, but they were proud to employ a disabled veteran. The Veteran could use a larger more padded chair due to his arthritis, and he was allowed to set his own pace of work. His work schedule was coordinated around his numerous doctor's appointments, even when this was challenging due to complaints by the Veteran's co-workers. The employer stated the Veteran's "disabilities do have a small negative impact on our business operations but nothing at this point that would cause us great concern." Employer's statement, May 2013. 

The Board finds that although some disability accommodations were afforded to the Veteran by his employer such as different seating and a flexible work schedule, the facts of this case do not support that the employment was marginal employment. Instead, it appears that given the Veteran's education, skills, and work history, he retained the ability to secure and follow a substantially gainful occupation until his resignation on October 3, 2013. In other words, the evidence does not show that the Veteran would have been unable to secure or follow a substantially gainful occupation but for the accommodations allowed by his employer. 

Because, based on the reasoning above, the Veteran was not unable to secure or follow a substantially gainful occupation during the period from December 2, 2011 to October 3, 2013, but is instead found to have been engaged in substantially gainful occupation throughout this period, a TDIU rating is not warranted before October 4, 2013 and the appeal must be denied.

Special Monthly Compensation

28. Before November 4, 2015, SMC at the total plus 60 percent rate is denied. 

SMC at the total plus 60 percent rate, also known as the housebound rate, was established for this Veteran as of November 4, 2015, the date at which a 100 percent rating was assigned for the Veteran's coronary artery disease. The Board addresses the period on appeal prior to November 4, 2015 to determine whether this level of SMC is warranted any earlier, but finds that it is not. 

Initially, it is important to note that the evidence does not show, nor does the Veteran report, that he is in fact, substantially confined to his dwelling and its immediate premises as a direct result of his service-connected disabilities, to warrant SMC under 38 U.S.C. § 1114(s) on a factually housebound basis. Instead, the existing SMC is awarded at this rate based on a total plus 60 percent rating.  

The Board notes that the existing SMC rating is warranted only where the service-connected disabilities that are independently ratable at 60 percent and 100 percent are "separate and distinct" from one another and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). In this case, although the Veteran's coronary artery disease (CAD) and multi-joint arthritis (rheumatoid arthritis, also called polyarthralgia) may involve different bodily systems and anatomical segments, they are not separate and distinct in this instance. 

Instead, here, the Veteran's CAD was granted service connection as secondary to the Veteran's service-connected arthritis based upon a likely medical relationship between the heart condition and the Veteran's prednisone medication used to treat his arthritis. See Rating decision, November 2015. These disabilities are therefore not separate and distinct but determined to be medically related through secondary service connection as the source of the Veteran's existing disability compensation. Nonetheless, the Board will not disturb the existing SMC, but addresses only the period prior to November 4, 2015 as the matter on appeal. 

To qualify for SMC at the total plus 60 percent rating, the Veteran's polyarthralgia ratings would need to combine (not add) to a total or 100 percent rating, yet they do not in this case. Diseases arising from a single disease entity, such as the multi-joint arthritis here, are rated separately then combined. 38 C.F.R. § 4.25(b). Using the Combined Ratings Table in 38 C.F.R. § 4.25, which considers the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition in the order of severity, when each service-connected disability rating is considered for the period from December 2, 2011 to November 4, 2015, (and incorporating the additional ratings established above for the same period) a combined value of 95 or greater is not reached. As such, less than a total rating is established and SMC on the basis of a total plus 60 percent rating is not warranted before November 4, 2015. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran is advised that the agency of original jurisdiction will recalculate these totals if any additional award is granted based on the increased rating or service connection claims remanded below.  

Automobile and Adaptive Equipment

29. Entitlement to a certificate of eligibility for one automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied.

The Veteran asserts that his service-connected multi-joint arthritis has resulted in the permanent loss of use of his hands, as well as his shoulders and elbows, "limiting my ability to use the manual features and do normal operation of my current vehicle." See Veteran's statement, January 2016. In particular, he seeks a smaller vehicle which would be easier to enter and exit and that has electrically operated windows, rather than manual windows operated by a crank handle. Id.  

Financial assistance in acquiring an automobile (or other conveyance) with adaptive equipment is available only where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; or (5) amyotrophic lateral sclerosis (ALS).

Here, the Veteran does not have service-connected ALS or any burn injury, thus the last two conditions above are not for consideration in this case. Also, although the Veteran's claim of service connection for cataracts is remanded for further development below, it is uncontested that even were service connection for cataracts to be granted, the Veteran has maintained 20/20 visual acuity in each eye, with full visual fields. See VA examination & opinion, May 2021. He would not qualify for an automobile with adaptive equipment based on a visual impairment, and therefore this determination is not found to be inextricably intertwined with the issue of service connection for cataracts that is subject to remand below. 

Thus, the remaining determination by the Board is whether the Veteran has a permanent loss of use of at least one hand or foot. The applicable regulation for automobiles and adaptive equipment does not define the phrase "loss or permanent loss of use." However, under the eligibility criteria found in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, the appellant must show that he or she had anatomical loss of a foot or hand, or permanently lost the use of a foot or hand due to service-connected disability.

The Board notes that the term "loss of use" is used in several other places in various statutes and regulations describing disability ratings by VA. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.

A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing. That regulation specifies that "loss of use" was defined by the adjacent modifier, "such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).

However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 and had Congress or the Secretary of VA wished for such a definition to apply to the legal requirements for automobile and adaptive equipment benefits, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s) involved, with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran experiences a permanent loss of use.

To establish eligibility for financial assistance for the purchase of automobile adaptive equipment only, ankylosis of one or both knees or one or both hips is required. 38 C.F.R. § 3.808. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007).

In this case, service connection is in effect for the following disabilities: coronary artery disease, polyarthralgia (affecting the lumbosacral spine, bilateral shoulders, bilateral elbows, bilateral wrists, bilateral hands and bilateral thumbs, index, and middle fingers, bilateral knees, bilateral ankles, and right great toe), tinnitus, and bilateral hearing loss. For these disabilities, the Veteran has been in receipt of a combined total (100 percent) disability rating since December 2011.  

However, considering the relevant evidence in its entirety, the Board finds that the Veteran's service-connected disabilities do not result in such a severe degree of functional impairment as to approximate "permanent loss of use" of at least one hand or foot, or ankylosis of either knee. 

Instead, VA examination reports consistently reflect that although range of motion of the Veteran's knees, hands, fingers, and other joints for which service connection has been established may be limited by his arthritis, or by painful motion, he does not exhibit ankylosis of either the right or left knee and does not experience a permanent loss of use of at least one hand or foot. See, e.g., VA examinations, July 2021, November 2018, & July 2013 (documenting no ankylosis of either knee joint); see also VA examination, May 2021 (documenting normal range of motion of both hands, with functional impairment that does not equate to loss of use of a hand but rather requires breaks when performing prolonged typing or writing).  

The Social Security Administration (SSA), in a claim for disability benefits from that agency, determined in a January 2014 physical residual functional capacity assessment that while the Veteran had some degree of exertional limitation in push and or pull activities with the upper and lower extremities, including operation of hand or foot controls and manipulative operations, he remained unlimited in handling objects (gross manipulation).  

The Veteran was further shown to have no difficulty in opening a door using a knob, and no worse than moderate difficulty in other actions such as picking up a coin or pen, using buttons or zippers, and tying shoelaces. In all, he was found to have "dextrous finger control" although his hand grip strength was decreased. SSA medical records by Dr. AM, January 2014. 

To be clear, the Board has no reason to doubt the Veteran's report that he has trouble with prolonged gripping, typing, writing, or other repetitive uses of his hands due to frequent aching pain with intermittent swelling of the finger joints. However, the limitations described are not found to equate to a permanent loss of use of one or both hands because the Veteran retains the ability to perform multiple tasks with his hands. 

The record also does not show, nor does the Veteran claim, that his service-connected arthritis of the right big toe and/or bilateral ankles results in loss of use of a foot. See, e.g., VA opinions, May 2021. Instead, the Veteran is described as having retained the functional ability to stand or walk for a total of 2 hours, and occasionally climb stairs. See SSA records, January 2014. 

In all, a preponderance of the evidence demonstrates that while the Veteran suffers from pain and functional impairment from his service-connected bilateral upper and lower extremity disabilities, he retains the ability to make use of his hands and feet. Therefore, the weight of the evidence is against finding that the Veteran has permanent loss of use of a hand or foot due to service-connected disability, and there is no ankylosis of either knee.

In so finding, the Board recognizes that the Veteran suffers impairment due to his service-connected bilateral upper and lower extremity disabilities that could potentially benefit from automobile adaptive equipment in some form. However, eligibility for this benefit is determined by the existing law and regulations that require the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. The claim cannot be granted based upon need or usefulness alone, without meeting the underlying eligibility criteria. Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of his knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, at this time he does not qualify as eligible for financial assistance in the purchase of an automobile or other conveyance with adaptive equipment, or for adaptive equipment only, under 38 C.F.R. § 3.808. As such, the appeal must be denied.

REASONS FOR REMAND

30. Entitlement to service connection for cataracts, to include as caused or aggravated by steroid medication used to treat the Veteran's service-connected polyarthralgia, is remanded.

A remand order by the Board imposes a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); but see Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (no violation when the examiner "substantially complied with the Board's remand order"). Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of whether or not the Veteran's chronic steroid use, as medication used to treat his service-connected disabilities, aggravated or worsened his diagnosed cataract disability. 

Specifically, a May 2021 VA opinion stated that the current severity of the Veteran's cataracts was greater than the baseline, but that the cataracts were not aggravated beyond their natural progression by his use of steroid medications. Instead, the examiner noted that the progression of cataract development is consistent with natural progression over time rather than aggravation. However, the examiner does not offer a rationale or reason for why natural progression is more likely than worsening due to steroid medication use in this instance. 

Also, this opinion is unclear because it appears as though the worsening identified by the examiner between a condition baseline and current status is the development itself of the cataracts in both eyes. See VA opinion, May 2021 (comparing responses in Section VI, question 6A, Sections I & II). Instead, the medical question should be whether the severity of the cataracts increased from their baseline. 38 C.F.R. § 3.310(b). 

Accordingly, given the deficiencies described above in the VA opinion report, the Board finds that a new medical opinion with an adequate supporting rationale is required to decide the Veteran's claim.  

31. Before October 9, 2018, entitlement to a disability rating greater than 10 percent for polyarthralgia of the left knee, based on limitation of motion, is remanded.

32. Before October 9, 2018, entitlement to a separate disability rating for polyarthralgia of the left knee, based on recurrent subluxation or lateral instability, is remanded. 

33. Since October 9, 2018, entitlement to a disability rating greater than 10 percent for polyarthralgia of the left knee, based on recurrent subluxation or lateral instability, is remanded. 

34. Throughout the period on appeal, entitlement to a separate disability rating for polyarthralgia of the left knee, based on a torn meniscus, is remanded.

The evidence shows that the Veteran has consistently described additional symptoms and greater severity of symptoms for his left knee versus his right knee. For the left knee, the Veteran has described, pain, weakness, giving way, and sensations of "locking" of the knee joint, and prior falls occurring due to left knee pain and weakness. See, e.g., VA examinations, November 2015 and July 2013. In particular, the left knee also shows a known meniscal tear present during the appeals period. 

For the left knee, a rating under more than one diagnostic code may be required to fully compensate for the Veteran's symptoms. It is the Board's duty to ensure that all functional impairment due to symptoms of the Veteran's service-connected disability are contemplated by the ratings assigned. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Also, however, the evaluation of the same manifestation of disability under various diagnoses is to be avoided. 

In addition, symptoms of disability for which service connection has not been established should not be considered in a rating determination, unless it is impossible to separate the effects of the service-connected and nonservice-connected conditions, in which case all symptoms are to be attributed to the service-connected disability. Mittleider v. West, 11 Ve.t App. 181 (1998). 

Here, the Veteran is shown to have conditions of rheumatoid arthritis, osteoarthritis, and a meniscal tear affecting the function of his left knee during the period on appeal. Service connection is only in effect for rheumatoid arthritis and the symptoms of that disability. The evidence is not clear as to which disability is causing which left knee symptoms of impairment, nor whether it is possible or not to separate the effects resulting from the various diagnosed left knee conditions. An additional medical opinion is required to clarify these matters, particularly as related to the left knee meniscal tear. 

The matters are REMANDED for the following action:

1. Obtain an addendum opinion regarding whether the Veteran's bilateral cataracts have at least as likely as not been aggravated (worsened) beyond their natural progression by the Veteran's chronic use of steroid medications to treat his service-connected multi-joint arthritis. 

2. Obtain an addendum opinion to consider all manifestations of disability affecting the Veteran's left knee for the period from December 2, 2010 forward (encompassing one year prior to the present claim). The Board leaves a determination regarding whether the Veteran needs to be physically re-examined, or whether additional evidence needs to be obtained verbally through telemedicine or other acceptable means to the discretion of the examiner. The Veteran describes left knee symptoms including, but not limited to, pain, weakness, effusion into the joint, sensations of giving way and "locking" of the knee joint, and prior falls occurring due to left knee pain and weakness. 

The examiner is asked to respond to EACH of the following questions: 

a.	Is it possible to separate the left knee symptoms or effects of rheumatoid arthritis, versus osteoarthritis, and versus the left knee meniscal tear? Why or why not? 

b.	If it is possible to distinguish between any of the effects from these left knee disorders, please clearly explain what symptoms are attributable to each disorder. Please note that some symptoms (such as knee pain) may be caused by multiple left knee conditions, but if any condition is at least as likely as not (likelihood of 50 percent or more) to be attributable to one condition versus another, the examiner should indicate the likely source of that symptom and explain why. 

Prior examiners have stated that the left knee meniscal tear is a "pathologically separate" condition from the Veteran's service-connected polyarthralgia or rheumatoid arthritis. While these disorders may or may not have the same etiology, the Board must consider whether the symptoms from these disabilities are distinguishable or overlapping. 

The Board recognizes that the complex nature of the medical questions involved may require significant work on the part of the medical examiner. Full and thoroughly explained reasoning for the opinions offered will prevent further delays in adjudication and is very much appreciated.

 

David Gratz

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McDonald, Counsel

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.