Citation Nr: 21024710 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-34 649 DATE: April 26, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for osteitis deformans/Paget's disease, extra mammary, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s osteitis deformans/Paget's disease, extra mammary manifests as painful, limited motion of the left long finger and the left little finger. CONCLUSION OF LAW The criteria for evaluation of an initial disability rating in excess of 10 percent for osteitis deformans/Paget’s disease, extra mammary, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5016-5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1983 to November 1983 and from November 1990 to July 1991. These matters come before the Board of Veterans Appeals (Board) on appeal from a January 2012 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In February 2020, the Board remanded other issues. To the extent issues were remanded for further development, the issues will be addressed in a future Board decision, if in order, once that development is completed. Entitlement to an initial rating in excess of 10 percent for osteitis deformans/Paget's disease, extra mammary Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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. 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.”). The Veteran was awarded service connection for his Paget’s disease, claimed as pain in joint involving hand, in a January 2012 rating decision, and an initial 10 percent rating was assigned effective June 29, 2011. The Board observes that under 38 C.F.R. § § 4.59, painful joints are entitled to at least the minimum compensable rating applicable to the disability at issue. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The RO has evaluated the Veteran’s Paget’s disease under DC 5016-5003. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5016 directs that osteitis deformans will be rated as degenerative arthritis based on limitation of motion of the affected parts. 38 C.F.R. § 4.71a, Diagnostic Code 5016. Degenerative arthritis is rated under Diagnostic Code 5003. Diagnostic Code 5003 provides that, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code for that joint, a rating of 10 percent is for application for each such major joint or group of minor joints affected by (noncompensable) limitation of motion. In the absence of limitation of motion, a 20 percent rating is provided where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The hand, which includes involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, is considered a group of minor joints. 38 C.F.R. § 4.45 (f). Further, for the musculoskeletal system hand and finger disabilities, ratings are assigned based on ankylosis and limitation of motion of single or multiple hand digits. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230. Specifically, Diagnostic Codes 5216 through 5227 are for application when favorable or non-favorable ankylosis is shown; and Diagnostic Codes 5228 through 5230 are for application for limitation of motion of individual digits. Id. The Veteran was afforded VA hand and finger examinations in September 2011 and November 2019. The Veteran is right hand dominant. The 2011 examination report shows painful motion involving the left long finger, and the 2019 report shows painful motion involving the left little finger. Both examinations show ankylosis of the left ring finger. The Board finds the 10 percent rating currently assigned for the Veteran’s left hand is warranted pursuant to § 4.59. As 10 percent is the maximum allowable rating for the long finger, a rating higher than 10 percent for the long finger is not warranted. In addition, the Board also observes that there is no compensable schedular rating available for the left little finger. See § 4.71a, DC 5230. Accordingly, no minimum compensable rating is available for the little finger pursuant to § 4.59, even though painful motion is present. Under Diagnostic Code 5227, a maximum noncompensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger regardless of whether the finger is on the major or minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Based on the foregoing, and as there is no evidence of incapacitating exacerbations under DC 5003, a disability rating in excess of 10 percent is denied. See 38 C.F.R. § § 4.71a, DC 5003. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. Pursuant to the May 2018 Board remand the Veteran received an examination in November 2019. The examiner provided a negative opinion as to direct service connection. However, the Veteran contends his psychiatric stressors include chronic pain. The Veteran is currently service connected for multiple disabilities including Paget’s disease and migraines. The Veteran has not yet received a VA opinion as to secondary service connection. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand for an addendum opinion is required. 2. TDIU is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of service connection for an acquired psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). Therefore, the Board finds it necessary to remand this issue. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his acquired psychiatric disorder was caused or aggravated by his service-connected disabilities. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record, including the issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.