BVA9504049 DOCKET NO. 91-16 649 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for disability of the hands, including arthritis. 2. Entitlement to an increased rating for rheumatoid arthritis of the spine and sacroiliac joints, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from February 1941 to September 1945. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 1990 rating decision by the Los Angeles, California, Regional Office (RO). A notice of disagreement was received in March 1990. In May 1990, the RO issued a statement of the case which only addressed the increased rating issue. A substantive appeal was received in July 1990, and the veteran testified at a personal hearing at the RO in September 1990. A supplemental statement of the case addressing the service- connection issue was furnished to the veteran and his representative in October 1990, and a substantive appeal was received in March 1991. This case was previously before the Board and was remanded by Board decision dated in December 1991. A supplemental statement of the case was issued in April 1993. The case is now again before the Board for appellate review. The veteran is represented by the Veterans of Foreign Wars of the United States. Certain information contained in a May 1993 letter from the RO to the veteran concerned a reduction in his disability compensation due to a change in dependency status. That same month, the RO received a written communication from the veteran citing the reduction in compensation, among other things, and requesting a statement of the case so he could appeal. It is not clear whether this communication from the veteran was intended to be a notice of disagreement on the dependency change issue, and this matter is hereby referred to the RO for appropriate clarification and any necessary action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran's degenerative disability of the hands is related to his service- connected rheumatoid arthritis of the spine and sacroiliac joints. It is maintained that the veteran's disability of the hands is essentially late-onset peripheral joint disease which is a continuation of his rheumatoid arthritis and ankylosing spondylitis which should have been part of the description of his service-connected spine disability. The Board's attention is directed to copies of various articles by medical doctors which show that late-onset peripheral joint disease can be related to ankylosing spondylitis. The veteran further maintains that Department of Veterans Affairs (VA) physicians who examined him in September 1990 confirmed that osteoarthritis or rheumatoid arthritis can spread over the years to include other parts of the body. It is also contended by the veteran and his representative that the severity of his service-connected back disability has increased so as to warrant a higher disability evaluation. In this regard, the veteran's representative has specifically pointed out that recent medical examinations clearly show negative deviations from the full range of motion standards espoused in the VA's Physician's Guide for Disability Evaluation Examinations. It is therefore asserted that the criteria set forth in Diagnostic Code 5002 should be considered in addition to the provisions of Diagnostic Code 5292. The veteran also maintains that he has suffered unique impairment of his industrial capacity since much of his work involves the precision use of machines and tools, and that applicable regulations, including 38 C.F.R. § 4.1 (1994), should be applied to account for the resulting impairment as it pertains to his particular occupation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to service connection for disability of the hands, including arthritis. It is the further decision of the Board that the preponderance of the evidence is against entitlement to a disability rating in excess of 30 percent for service-connected rheumatoid arthritis of the spine and sacroiliac joints. FINDINGS OF FACT 1. Disability of the hands, including arthritis, was not manifested during the veteran's period of military service or for many years thereafter. 2. An etiological relationship between the veteran's disability of the hands, including arthritis, and his service-connected back disability has not been demonstrated. 3. The veteran's service-connected back disability is productive of aches and pain on exertion, but with no medical evidence of active rheumatoid arthritis; orthopedic examination in October 1992 showed forward flexion limited to 45 degrees, backward extension limited to 5 degrees, left and right lateral flexion limited to 20 degrees and rotation limited to 10 degrees bilaterally. CONCLUSIONS OF LAW 1. Disability of the hands, including arthritis, was not incurred in or aggravated by service, nor may disability of the hands, including arthritis, be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. Disability of the hands, including arthritis, is not proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). 3. A disability rating in excess of 30 percent for service- connected rheumatoid arthritis of the spine and sacroiliac joints is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321 and Part 4, including 4.1, 4.40, 4.45, 4.59, 4.66 and Codes 5002, 5003 and 5292 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Disability of the Hands, including Arthritis. Applicable law provides that service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Certain chronic disabilities, such as arthritis, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). It is also possible to establish service connection for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). Review of the medical record does not show any complaints or manifestations of disability of the hands, including arthritis, during the veteran's period of military service or for many years thereafter. Moreover, there is no evidence to otherwise show that his disability of the hands is related to his service. Therefore, neither service connection on a direct basis, nor service connection on a presumptive basis is warranted. It appears that the underlying theme of the veteran's contentions is that his current disability of the hands is related to his back disability which has been service-connected since the 1940's. Specifically, the veteran maintains that he suffers from a late- onset arthritis or peripheral joint disease which is related to the ankylosing spondylitis of the spine and rheumatoid arthritis of the spine. A review of the record shows that service connection for back disability was established as a result of a 1948 Board decision. That decision was based on medical examination reports in the late 1940's which variously diagnosed spondylitis or Marie- Strumpell's disease of the spine and sacroiliac joints, and rheumatoid arthritis of the spine and sacroiliac joints. Since 1949, this disability has been described for rating purposes as rheumatoid arthritis of the spine and sacroiliac. The veteran argues, in effect, that the spondylitis which was diagnosed in the 1940's should have been made a part of the description of his service-connected back disability and that his disability of the hands is related to his back disability. In support of this contention the veteran has submitted copies of medical literature showing that certain individuals who suffer from spondylitis later develop peripheral joint disease. The veteran also maintains that it is medically possible for his rheumatoid arthritis of the back to spread to other parts of his body, such as his hands. The Board notes at this point that the determinative question with regard to the service connection claim requires skill in differential diagnosis. The United States Court of Veterans Appeals (Court) has clearly indicated that such questions involving diagnostic skills must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In reviewing the evidence, the Board believes several medical reports to be of particular significance. A VA outpatient report dated in January 1990 shows that the veteran was seen as part of a VA examination for complaints associated with a history of rheumatoid arthritis. Laboratory testing revealed a negative rheumatoid factor (RF), and radiological examination was interpreted as suggesting degenerative joint disease involving the hands, not rheumatoid arthritis. A VA outpatient report dated in September 1990 shows that the veteran was seen for a rheumatology consultation with complaints of swollen hands. Previous negative RF test results were noted. The reported assessment was osteoarthritis. The report appears to indicate that ankylosing spondylitis was not present, but was still a possibility. Also significant is a July 1990 letter from Gary R. Feldman, M.D., Diplomate, American Board of Rheumatology, in which he reports that after a complete history and physical examination of the veteran, the disorder which the veteran suffered from in the 1940's could "best be termed a sero-negative spondyloarthropathy." Dr. Feldman further stated that he thought it clear that the veteran had been suffering from ongoing inflammation and spondylitis in 1947. However, he reported that current laboratory studies along with his physical examination of the veteran led to the conclusion that the veteran did not have an ongoing active spondylitis. Dr. Feldman offered his opinion that the veteran's current symptoms in his left hand were related more to degenerative arthritis and a degenerative condition related to diabetes mellitus. Pursuant to the Board's January 1992 remand, the veteran underwent special VA examination. One examiner reported that the veteran suffered from osteoarthritis, or perhaps rheumatoid arthritis, early stages, of both hands, and possible arthritis of the spine. This examiner further stated that it was not clear from examination and history whether the arthritis of the spine was rheumatoid or osteoarthritis and that it could possibly be rheumatoid. Special VA orthopedic examination of the hands by a different examiner resulted in diagnoses of osteoarthritis of the hand, no relation to service-connected diagnosis of sacroiliitis and no evidence of rheumatoid arthritis. On orthopedic examination of the spine, the diagnoses were sacroiliitis and diabetes. The Board has reviewed the medical literature which the veteran has submitted and recognizes that various diagnostic labels have been used to describe the veteran's back disability over the years. However, in view of the several medical reports outlined above, the Board is unable to conclude that a basis exists for relating the veteran's disability of the hands to his service- connected back disability. Certainly a medical possibility of such a relationship may exist, and the Board does not in any way dispute the statistical findings discussed in the medical literature submitted by the veteran. However, the Board believes that more probative value must be assigned to the medical opinions of trained professionals who have reviewed the veteran's actual history and had the opportunity to examine him. While one VA examiner was unsure as to whether the veteran's hand and back disabilities were osteoarthritic or rheumatoid in nature, such an equivocal report can certainly not be considered an opinion that there is such an etiological relationship. Moreover, the VA orthopedic examiner expressed the clear opinion that there was no rheumatoid arthritis. Further, a private physician, Dr. Feldman, expressed this same essential medical opinion in his July 1990 letter. The Board takes note of the veteran's contention that his service-connected back disability should include ankylosing spondylitis in its description for rating purposes. However, regardless of the descriptive label to be assigned to his back disability, it appears to the Board that the consensus of medical opinion is that there is no etiological relationship between the veteran's service-connected back disability and his disability of the hands. As noted earlier, such matters of diagnosis and medical causation are within the realm of trained medical experts. Espiritu, id. As such, the Board cannot ignore the opinions of the medical experts when those opinions are adequately supported by the evidence of record as in the instant case. Moreover, the negative evidence is not so evenly balanced with the positive evidence with regard to any material issue. 38 U.S.C.A. § 5107(b) (West 1991). Accordingly, the Board finds that there is no basis for granting the veteran's claim for entitlement to service connection for disability of the hands, including arthritis. II. Increased Rating for Rheumatoid Arthritis of the Spine and Sacroiliac Joints. The next issue before the Board concerns the veteran's claim for entitlement to an increased rating for rheumatoid arthritis of the spine and sacroiliac joints. This issue involves the assignment of a disability evaluation to approximate the degree of impairment which this disability imparts to the veteran. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, including § 4.1 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (West 1991). Review of the claims file reveals that the veteran was seen for complaints of low back pain during service. Post-service medical reports dated in the late 1940's and 1950's show continued back symptomatology which was variously diagnosed as spondylitis or Marie-Strumpell's disease of the spine and sacroiliac joints, and as rheumatoid arthritis of the spine and sacroiliac joints. As noted earlier in this decision, service connection was established for this back disability pursuant to a 1948 Board decision. A 30 percent evaluation was assigned, effective from 1947, for back disability (described for rating purposes as rheumatoid arthritis of the spine and sacroiliac joints), and that rating has been in effect ever since. Under the provisions of Diagnostic Code 5002, a 20 percent rating is applicable when there is active rheumatoid arthritis with 1 to 2 exacerbations a year in a well-established diagnosis. The next higher schedular rating of 40 percent is for application when there is active rheumatoid arthritis with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joints involved. Under the criteria set forth under Diagnostic Code 5292, moderate limitation of motion of the lumbar spine will be rated as 20 percent disabling and severe limitation of motion of the lumbar spine will be assigned a 40 percent rating. The lumbosacral and sacroiliac joints should be considered as one anatomical segment for rating purposes. 38 C.F.R. § 4.66 (1994). VA outpatient reports dated in the 1980's and 1990's document treatment for various medical problems, including continuing back symptomatology. As previously observed, examination by Gary F. Feldman, M.D. in 1990 resulted in an opinion that the veteran did not have an ongoing active spondylitis at that time. On VA examination in October 1992, the veteran complained of occasional back aches and pain, especially when he strains himself or works too much. Clinical examination showed normal posture with normal appearance of the back without evidence of spasm. Forward flexion was to 90 degrees, backward extension was to 15 degrees, and lateral flexion was to 30 degrees bilaterally. Rotation to the left and right was to 45 degrees. The veteran complained of aches on all motions, but did not complain of any excruciating pain. Neurologic examination of the lower extremities was normal. Radiological study of the lumbar spine was reportedly not significant to any pathologic findings. Examination of the sacroiliac joint showed no pain on compression and a range of motion test was negative. The examiner's assessment was possible arthritis, although it was not clear from examination and history whether it was rheumatoid or osteoarthritic. The examiner indicated that it could be rheumatoid. VA orthopedic examination of the spine by a different examiner was also conducted in October 1992 and revealed some postural abnormalities. At the time of this examination, forward flexion was reported to be to 45 degrees, backward extension to 5 degrees, left and right lateral flexion to 20 degrees and rotation to 10 degrees bilaterally. Objective evidence of pain on rotation was reported. No evidence of ankylosing spondylitis was noted on x-ray study, and the orthopedic diagnoses were sacroiliitis and diabetes. Beginning with a comparison of the veteran's demonstrated disability picture and the criteria for a 40 percent rating set forth under Diagnostic Code 5002, the Board notes that there appears to be no medical findings of active rheumatoid arthritis. Laboratory tests have consistently showed a negative RF. Therefore, despite the veteran's statements and testimony to the effect that he has problems with prolonged sitting and standing and that he has essentially treated himself with pain medication over the years, the schedular criteria for a higher rating under this Code have not been met. The Board agrees that the limitation of motion criteria set forth under Diagnostic Code 5292 must also be considered. With regard to the provisions of this Code, the Board notes that the veteran's representative has made specific reference to the VA's Physician's Guide for Disability Evaluation Examinations. According to § 2.23 of this publication, normal lumbar motion is considered to be to 95 degrees on flexion forward, to 35 degrees on extension backward, to 40 degrees on lateral flexion, and to 35 degrees on rotation. It is clear from the report of the recent VA examination that the veteran suffers from decreased range of motion. However, the Board believes that the resulting limitation of motion is best described as moderate at this time, as opposed to severe. While extension backward was shown on VA orthopedic examination in October 1992 to be severely limited, forward flexion and lateral flexion are approximately one-half of the normal ranges while rotation is limited to about one-third of the normal range of motion. The Board also observes that when the veteran was examined by another VA examiner just a few days before, the reported ranges of motion were not nearly as limited. For the reasons set forth above, the Board finds that the preponderance of the evidence is against entitlement to an increased evaluation at this time. Comparing the veteran's back symptomatology with the criteria set forth under the applicable Diagnostic Codes, and noting that a 30 percent schedular rating is not specifically provided for under these Codes, the Board believes that the present 30 percent rating already adequately contemplates not only the veteran's impairment in civil occupations, but also any additional disability resulting from the demonstrated moderate limitation of motion with complaints of pain and interference with various movements. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59 (1994). Finally, the Board notes that the veteran has asked that consideration be given to fact that his disability interferes with his particular occupation which involves skills in working with machinery and tools. However, most of the veteran's specific complaints in this regard are related to the impact of the disability of his hands (for which service-connected disability has not been established) rather than impairment due to his service-connected back disability. At any rate, the record does not demonstrate such an unusual disability picture with marked interference with employment or frequent periods of hospitalization so as to render impractical the application of regular schedular standards and allow an extra-schedular rating under 38 C.F.R. § 3.321(b) (1994). Having found that the preponderance of the evidence is against entitlement to an increased rating, it follows that the evidence is not in such a state of equipoise as to otherwise provide a basis for favorable action on the veteran's claim. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.