Citation Nr: 21011306 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-00 037 DATE: March 1, 2021 ORDER Entitlement to a separate rating for rheumatoid arthritis (RA) is denied. An initial rating in excess of 10 percent for acquired pes cavus, bilateral, associated with RA is denied. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral thumbs associated with RA is denied. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral index fingers associated with RA is denied. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral long fingers associated with RA is denied. An initial compensable rating for limitation of motion of the bilateral ring fingers associated with RA is denied. An initial compensable rating for limitation of motion of the bilateral little fingers associated with RA is denied. FINDINGS OF FACT 1. The Veteran’s rheumatoid arthritis residuals warrant a combined higher rating than his active symptoms. 2. The Veteran’s pes cavus manifests with symptoms including definite tenderness under the bilateral metatarsal heads and some limitation of dorsiflexion at the ankle bilaterally, but not with marked tenderness under the metatarsal heads, limitation of dorsiflexion at ankle to right angle, or shortened plantar fascia. 3. The Veteran’s limited motion in his bilateral thumbs has not been manifested by limitation of motion of the thumb with a gap of more than two inches (5.1 cm) between the thumb pad and fingers, with the thumb attempting to oppose the fingers. 4. The Veteran’s limited motion in his bilateral index fingers has not been manifested by 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. 5. The Veteran’s limited motion in his bilateral longs finger has not been manifested by a gap 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. 6. The Veteran’s limited motion in his bilateral ring fingers has not been manifested by ankylosis of any finger joint. 7. The Veteran’s limited motion in his bilateral little fingers has not been manifested by ankylosis of any finger joint. CONCLUSIONS OF LAW 1. The criteria establishing entitlement for a separate rating for rheumatoid arthritis (RA) are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.102, 4.71a, Diagnostic Code (DC) 5002. 2. The criteria for a rating in excess of 10 percent for pes cavus, bilateral, associated with RA have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5278. 3. The criteria for a rating in excess of 10 percent for limited motion of thumbs, bilateral, associated with RA have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5228. 4. The criteria for a rating in excess of 10 percent for limited motion of index fingers, bilateral, associated with RA have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5229. 5. The criteria for a rating in excess of 10 percent for limited motion of long fingers, bilateral, associated with RA have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5229. 6. The criteria for a noncompensable rating for limited motion of ring fingers, bilateral, associated with RA have been met; there is no compensable schedular rating available. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5230. 7. The criteria for a noncompensable rating for limited motion of ring fingers, bilateral, associated with RA have been met; there is no compensable schedular rating available. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to September 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO) in which the RO denied a rating greater than 20 percent for service-connected RA. The Veteran disagreed with the decision and subsequently perfected an appeal to the Board. In November 2018, the Board remanded the increased rating claim for further development, to include scheduling the Veteran for a new VA medical examination. Upon completion of the requested development, the RO issued a rating decision in July 2020 in which service connection was established for 11 conditions found to be secondary to the Veteran’s service-connected RA; this resulted in a combined disability rating of 60 percent disabling, effective from August 27, 2019. The RO also terminated the Veteran’s rating for RA, effective August 27, 2019, as it was determined that a higher rating based on RA residuals was available. A supplemental statement of the case (SSOC) was issued that same month addressing entitlement to an increased rating for RA, alone of based on residuals, greater than 20 percent prior to August 27, 2019, and greater than 60 percent from that date. The matter was then returned to the Board for further appellate consideration. The Veteran’s representative filed a January 2021 brief requesting an increased RA rating and alleging that the examinations conducted were inadequate. These contentions are addressed below. 1. Entitlement to a separate rating for rheumatoid arthritis (RA) At the time of appeal, the Veteran was service-connected for RA that was rated as 20 percent disabling, from December 2001 to August 2019. The Veteran did not address the termination of his separate RA rating in his January 2021 brief to the Board. However, he stated that he has flare ups 3 or more times a year, lasting 2 to 4 weeks in duration. This describes, in part, RA symptoms warranting a 40 percent rating. See 38 C.F.R. § 4.71a, DC 5002. As such, the Board takes this filing in part as an appeal for a separate RA rating. As alluded, RA can be rated in two different ways. DC 5002 distinguishes between the active process – RA itself, identifiable by diagnostic testing – and the ratings for residuals caused by the active process – symptoms manifesting as pain, limited motion, or ankylosis. VA regulations do not allow a veteran receive ratings for both the active process and its residuals. 38 C.F.R. § 4.71a, DC 5002 Note(3). Only the higher of the two ratings is assigned. Residuals are rated under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 4.71a, DC 5002. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.  When evaluating the severity of a disability, it is essential the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings and is employed for initial or established ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. As an individual rating, RA ratings are assigned according to the following criteria: for a 40 percent rating, symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; for a 60 percent rating, weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and for a 100 percent rating, constitutional manifestations associated with active joint involvement, and total incapacitation. 38 C.F.R. § 4.71a, DC 5002. Here, the Veteran’s August 2019 VA RA examination reflects incapacitating exacerbations three times annually on average, each resulting in two to four weeks of incapacitation, with symptom combinations productive of definite impairment of health. This assessment is uncontradicted on record. It is consistent with a 40 percent disability rating, as described above. However, the Veteran’s 11 new service-connected conditions, added in the July 2020 rating decision, are all for RA residuals rated based on pain or limitation of range of motion. Of these, four are rated at 0 percent disabling (noncompensable), namely the bilateral (right and left) little and ring fingers. The remaining seven are all rated at 10 percent disabling, including the rest of the Veteran’s fingers and his bilateral acquired pes cavus. Given the bilateral factors applicable to these ratings and in accordance with regulation, these disabilities combine to a 60 percent rating. See 38 C.F.R. §§ 4.25, 4.26. In sum, the Veteran has presented sufficient evidence to show that he would have a separate rating for RA at 40 percent, if he did not already have a higher, combined VA rating for his RA residuals. For the reasons stated above, the Board finds that the preponderance of evidence is against awarding the Veteran a separate rating for RA under DC 5002 and any appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. An initial rating in excess of 10 percent for acquired pes cavus, bilateral, associated with RA The Veteran further contends that his September 2019 VA foot examination did not properly evaluate his reported symptom flare ups and is accordingly inadequate. He asserts that his bilateral pes cavus warrants a higher rating than the 10 percent rating currently assigned. The Veteran’s pes cavus is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5002-5278. Hyphenated DC are used when a rating for a disability under one DC is based upon rating of the residuals of that disability under another DC. 38 C.F.R. § 4.27. In this case, RA under DC 5002 is the service-connected disorder, and bilateral pes cavus under DC 5278 is the residual condition. Under DC 5278, a 20 percent rating is warranted for unilateral pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, or marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DC 5278. A 30 percent rating is warranted for bilateral pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, or marked tenderness under metatarsal heads. Id. A 30 percent rating is also warranted for unilateral pes cavus with marked contraction of plantar fascia, dropped forefoot, all toes hammer toes, very painful callosities, or marked varus deformity. Id. A maximum 50 percent rating is warranted for bilateral pes cavus with marked contraction of plantar fascia, dropped forefoot, all toes hammer toes, very painful callosities, or marked varus deformity. Id. The Veteran’s August 2019 VA foot examination noted definite tenderness under the bilateral metatarsal heads, some limitation of dorsiflexion at the ankle bilaterally, and bilateral pain, deformity, interference with standing, and interference with locomotion. The Veteran reported flare ups causing severe pain and swelling in his joints. The examination was not conducted during a flare up, but the examiner opined that flare ups would not result in further functional loss. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the United States Court of Appeals for Veterans Claims (Court) held that, pursuant to VA regulations and VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet. App at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The VA examiner did just that. Additionally, neither the examination report nor his treatment records establish that the Veteran has the more serious manifestations of his condition that might warrant a higher rating. It is worth noting here that pain, alone, does not constitute a functional loss under the VA regulations evaluating disabilities based upon range-of-motion loss. Pain may cause a functional loss, but itself does not constitute functional loss; rather, it must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” to constitute functional loss. See Mitchell, 25 Vet. App. at, 43. Manifestations of functional loss may include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the loss were caused by any of the other factors cited above. So, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 (for painful motion) is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court also held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies if limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis (and arthritis due to trauma, i.e., post-traumatic arthritis under DC 5010, since rated as degenerative arthritis under DC 5003), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for an increased rating for his bilateral acquired pes cavus and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral thumbs associated with RA 4. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral index fingers associated with RA 5. An initial rating in excess of 10 percent, bilaterally, for limitation of motion of the bilateral long fingers associated with RA 6. An initial compensable rating for limitation of motion of the bilateral ring fingers associated with RA 7. An initial compensable rating for limitation of motion of the bilateral little fingers associated with RA The Veteran contends that his September 2019 VA hand examination did not properly evaluate his reported symptom flare ups and is therefore inadequate. He asserts that his individual digit disabilities warrant ratings higher than the 0 or 10 percent ratings currently assigned. The Veteran is service-connected for his bilateral thumbs (DC 5002-5228), bilateral index fingers (DC 5002-5229), bilateral long fingers (DC 5002-5229), bilateral ring fingers (DC 5002-5230), and bilateral little fingers (DC 5002-5230). Limitation of motion of individual digits are evaluated under 38 C.F.R. § 4.71a, DCs 5228 through 5230. Under 38 C.F.R. § 4.71a, DC 5228 limitation of motion of a thumb warrants a noncompensable rating of the thumb when there is a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is warranted when there is a gap of one to two (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is warranted when there is 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. Under DC 5229 limitation of motion of the index (2nd finger) or longer (3rd or middle finger) warrants a noncompensable rating when there is 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 maximum 10 percent rating is warranted of the major or minor extremity 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. Under DC 5230 any limitation of motion of the ring (4th finger) or little (5th) finger warrants a noncompensable evaluation. As noted above, pain itself will not constitute functional loss, but painful motion causing functional loss may justify entitlement to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. see Burton, supra. However, in Sowers v. McDonald, 27 Vet. App. 72 (2016), the Court clarified that 38 C.F.R. § 4.59 is limited by the DC applicable to the claimant’s disability, and where that DC does not provide a compensable rating, 38 C.F.R. § 4.59 does not operate to provide for a compensable rating. As such, the Veteran is rated at the maximum schedular levels for his index, middle, ring, and little fingers. His index and middle fingers can only receive a maximum rating of 10 percent under DC 5229. His ring and little fingers, rated under DC 5230, have no compensable rating and therefore cannot be assigned one. Sowers, supra. Therefore, the only rating that could be increased is for the Veteran’s thumbs. At the time of his August 2019 VA hand examination, the Veteran was unable to move his fingers due to pain and a moderate ulnar drift deformity. The examiner noted pain on opposition with the thumb causing functional loss and tenderness to palpation. He opined this would cause difficulties with typing, sitting, driving, writing, and lifting objects. The Veteran reported flare ups causing severe pain, stiffness, and fatigue. The examination was not done during a flare up, but the examiner surmised there would be no additional functional loss during a flare up. As established above, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet. App at 32. In the instant case, the VA examiner did just that. As previously stated, the Veteran reported severe pain and swelling during flare ups, and was unable to participate in range of motion testing due to pain at his VA examination. However, the VA examiner did not find any mechanical justification for decreased range of motion, such as ankylosis. There were no further findings, medical evidence, or opinions record suggesting the Veteran has greater impairment of his thumbs. The Board reviewed the record specifically for assistive devices, inability to drive, inability to feed himself, get dressed, prepare food, or other indicators that he was unable to use his hands. Although the Veteran’s VA RA examination stated that he suffered incapacitating episodes, there is no indication that those episodes specifically implicated the use of his hands. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim for an increased rating for the individual digits of his bilateral hands, inclusive of the claims identified above, and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); Gilbert, supra; 38 C.F.R. § 3.102. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, Associate 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.