Citation Nr: 21009271 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 08-19 787A DATE: February 22, 2021 REMANDED Entitlement to a higher rating for left wrist rheumatoid arthritis since July 1, 2008, rated as 10 percent disabling, is remanded. Entitlement to a higher rating for right wrist rheumatoid arthritis since July 1, 2008, rated as 10 percent disabling, is remanded. Entitlement to a higher rating for left hand rheumatoid arthritis with painful motion of the long finger since July 1, 2008, rated as noncompensable prior to December 11, 2014 and 10 percent disabling thereafter, is remanded. Entitlement to a higher rating for left hand rheumatoid arthritis with painful motion of the index finger since July 1, 2008, rated as noncompensable prior to December 11, 2014 and 10 percent disabling thereafter, is remanded. Entitlement to a higher rating for right hand rheumatoid arthritis with painful motion of the long finger since July 1, 2008, rated as noncompensable prior to December 11, 2014 and 10 percent disabling thereafter, is remanded. Entitlement to a higher rating for right hand rheumatoid arthritis with painful motion of the thumb since July 1, 2008, rated as noncompensable prior to December 11, 2014 and 10 percent disabling thereafter, is remanded. REASONS FOR REMAND These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection for rheumatoid arthritis with a noncompensable rating, effective January 5, 2007. A subsequent November 2009 rating decision awarded a 20 percent disability rating, effective July 1, 2008, for rheumatoid arthritis as an active process under 38 C.F.R. § 4.71a, Diagnostic Code 5002. In August 2015, the Board issued a decision denying entitlement to a compensable rating for rheumatoid arthritis prior to July 1, 2008, but remanding the issue of entitlement a rating in excess of 20 percent for rheumatoid arthritis since July 1, 2008 to the Agency of Original Jurisdiction (AOJ) for further development. The Veteran did not file a notice of appeal with the Court of Appeals for Veterans Claims (Court) with regard to the Board’s August 2015 decision; therefore, the rating period for the remaining issues on appeal dates back to July 1, 2008, despite the appeal originating from the initial award of service connection for rheumatoid arthritis. In January 2017, the AOJ issued another rating decision in the context of this appeal that awarded separate 10 percent ratings for left wrist rheumatoid arthritis, right wrist rheumatoid arthritis, left hand rheumatoid arthritis with painful motion of the index and long fingers, and right hand rheumatoid arthritis with painful motion of the thumb and long finger, all effective December 11, 2014. In July 2017, the Board issued a decision that granted earlier effective dates of July 1, 2008 for the separate 10 percent ratings for left wrist rheumatoid arthritis, right wrist rheumatoid arthritis, left hand rheumatoid arthritis with painful motion of the index and long fingers, and right hand rheumatoid arthritis with painful motion of the thumb and long finger, but it otherwise denied increased ratings for any aspect of the Veteran’s rheumatoid arthritis since July 1, 2008. The Board notes the AOJ implemented the Board’s grants of earlier effective dates for left wrist rheumatoid arthritis and right wrist rheumatoid arthritis in a July 2017 rating decision, but it does not appear the AOJ has implemented the grants of earlier effective dates for left hand rheumatoid arthritis with painful motion of the index and long fingers and right hand rheumatoid arthritis with painful motion of the thumb and long finger, as the Veteran’s rating code sheets do not include any ratings for the hands prior to December 11, 2014. The AOJ must implement these favorable findings for the Veteran upon receipt of this appeal. The Veteran appealed the Board’s July 2017 decision to the Court. In May 2018, the Court granted a joint motion for partial remand (JMPR) that vacated the Board’s July 2017 rating decision to the extent that it denied ratings in excess of 10 percent for left wrist rheumatoid arthritis, right wrist rheumatoid arthritis, left hand rheumatoid arthritis with painful motion of the index and long fingers, and right hand rheumatoid arthritis with painful motion of the thumb and long finger since July 1, 2008. In the JMPR, the parties agreed the Board relied on inadequate examinations in its July 2017 decision to the extent that the Veteran’s previous examiners did not adequately address additional functional impairment of the wrists and hands during flare-ups in accordance with the holdings in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The parties explicitly noted the issues of entitlement to a rating in excess of 20 percent for rheumatoid arthritis active process under 38 C.F.R. § 4.71a, Diagnostic Code 5002, and a compensable rating for right hand rheumatoid arthritis with painful motion of the ring finger were abandoned by the Veteran; therefore, the Board will not consider these issues further in the context of the present appeal. In November 2018, the Board remanded the remaining issues on appeal for new examinations in accordance with the terms of the May 2018 JMPR. The AOJ scheduled the Veteran for new examinations in November 2019 as directed. In July 2020, the AOJ issued a rating decision that awarded separate 10 percent ratings for the left hand long finger and index finger, both effective December 11, 2014, and separate 10 percent ratings for the right hand long finger and thumb, both effective December 11, 2014. As previously noted, the Board’s July 2017 decision granted an earlier effective date of July 1, 2008 for left hand rheumatoid arthritis with painful motion of the index and long fingers and right hand rheumatoid arthritis with painful motion of the thumb and long finger, which has not yet been implemented by the AOJ. When this oversight is corrected, the AOJ should also consider whether the now four separate ratings for the left hand long finger and index finger and the right hand long finger and thumb should all date back to July 1, 2008. The Veteran appeared at hearing before the undersigned in December 2020. A transcript of the hearing is of record. The Board notes the Veteran initially appeared at a hearing before another Veterans Law Judge (VLJ) in September 2010. The VLJ who held the September 2010 hearing is no longer employed by the Board; therefore, the Board will proceed without a panel decision in this case since the undersigned is the only current VLJ who has held a hearing with the Veteran. See Arneson v. Shinseki, 24 Vet. App. 379 (2012); see also December 2020 Hearing Transcript. Unfortunately, the Board finds another remand is necessary in this case. The terms of the May 2018 JMPR explicitly instructed the Board to obtain examination reports that comply with the holdings in several Court decisions, most notably Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The examiner who conducted the Veteran’s November 2019 VA examinations determined she was unable to provide an estimate of additional range of motion loss following repetitive use and/or during flare-ups because she had “no basis” to offer such opinion, but she did not adequately explain why the Veteran’s lay reports would not be relevant in this determination as required under Sharp. Thus, a remand is required to ensure compliance with both the Court’s and the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Further, during the December 2020 hearing before the undersigned, the Veteran reported her rheumatoid arthritis has increased in severity since the November 2019 VA examinations with her private rheumatoid arthritis specialist recently placing her on a biologic due to increased symptoms. The Veteran further reported there are outstanding private treatment records that document this increased severity. While the rating assigned for rheumatoid arthritis active process under 38 C.F.R. § 4.71a, Diagnostic Code 5002, is no longer encompassed by the scope of this appeal, the Board nevertheless finds VA’s duty to assist requires reasonable efforts to assist the Veteran in obtaining these outstanding private treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Make reasonable efforts to assist the Veteran in obtaining any outstanding private treatment records that may be relevant to her appeal, to include, but not limited to, those discussed during her December 2020 hearing. 2. Schedule the Veteran for new wrist, hand, and finger examinations (with an examiner other than the November 2019 VA examiner). The selected examiner must test range of motion of the wrists, hands, and fingers for pain in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must render specific findings as to whether there is pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why this is so. The examiner must also indicate whether, and to what extent, the Veteran experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner is advised that the Veteran is competent to report limitation during flare-ups. If additional functional loss is found beyond what was shown on initial range-of-motion and repetitive-use testing, the examiner must assess this impairment in terms of additional degrees of limitation of motion, to the extent possible, or otherwise provide an explanation as to why it cannot be expressed in terms of additional degrees of limitation of motion. It should be noted that stating the requisite findings cannot be provided without resorting to speculation because the Veteran is not experiencing a flare-up at the time of the examination will be deemed an inadequate reason for failing to provide the estimate of additional degrees of limitation of motion. There must be consideration of the Veteran’s lay reports in this regard. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.