Citation Nr: 0004775 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 95-35 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to an increased rating for degenerative joint disease of the hands, hips, and left knee, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from December 1963 to December 1991. In a July 15, 1993 rating decision, the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (the RO) assigned a 10 percent disability rating for degenerative joint disease of the hips and left knee. On July 16, 1993, the veteran filed a claim of entitlement to service connection for arthritis of both hands. This appeal arose from a May 1995 RO rating decision which granted service connection for degenerative joint disease of both hands and assigned noncompensable disability ratings for each hand. In August 1996, the RO assigned a disability rating of 20 percent for degenerative joint disease of the hips, left knee and hands under 38 C.F.R. § 4.71a, Diagnostic Code 5003, effective from July 1993. FINDINGS OF FACT 1. The veteran has bone scan evidence of degenerative joint disease in each hand, as well as debilitating hand pain bilaterally, as reflected by weakness of the distal interphalangeal joints of fingers of each hand. 2. The veteran has bone scan evidence of degenerative joint disease of his hips, but no limitation of motion of the hips, and no clinical evidence supportive of hip debility due to pain. 3. The veteran has a loose body in his knee, which appears to be meniscal cartilage, and he has some knee pain. There is X-ray evidence of degenerative joint disease of his left knee, but no limitation of motion of the left knee. 4. The service-connected disabilities do not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The schedular criteria for a 10 percent disability rating for right hand degenerative joint disease are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5003 (1999). 2. The schedular criteria for a 10 percent disability rating for left hand degenerative joint disease are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5003 (1999). 3. The criteria for an increased (compensable) disability rating for right hip degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5003 (1999). 4. The criteria for an increased (compensable) disability rating for left hip degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5003 (1999). 5. The criteria for a 10 percent disability rating for left knee disability have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Codes 5003, 5257(1999). 6. Extraschedular disability ratings are not warranted for the veteran's service-connected disabilities. 38 C.F.R. § 3.321(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking an increased disability rating for his service-connected osteoarthritis of the hips, left knee and hands, which has been evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Preliminary Matters When a veteran is awarded service connection for a disability and appeals the RO's rating determination, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Additionally, the Board notes that, in general, allegations of increased disability are sufficient to establish as well grounded claims seeking increased ratings. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, the veteran's claim for an increased disability rating is well grounded. When a claim is determined to be well grounded, VA has a statutory duty to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5107(a) The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran and his representative contend that each service- connected joint warrants a separate rating are warranted. In Esteban v. Brown, 6 Vet. App. 259 (1994), citing 38 C.F.R. § 4.25, the Court held that separate disability ratings are permissible in cases where disabilities present separate and distinct manifestations, notwithstanding the anti-pyramiding provision, 38 C.F.R. § 4.14 (1999). Based on Esteban, in the decision below, the Board assigns the veteran separate ratings for his disabilities. The Board believes that doing so does not constitute prohibited pyramiding under the circumstances, since the service-connected degenerative disease of individual joints in essence amounts to separate disabilities. In the interest of clarity, law and regulations common to all of the claims will be set forth first, followed by discussion of the right and left hand degenerative joint disease disability claims, followed by the claims for increased ratings for degenerative joint disease of the hips and left knee. Pertinent law and regulations Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a). The Board is required to adjudicate claims for increased ratings in light of the rating criteria provided by the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Separate diagnostic codes identify the various disabilities. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved 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, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations................................................ ...... 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups................................................. 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Additional diagnostic codes will be reviewed where appropriate below. Some of the Diagnostic Codes cited or referenced in discussion of the disabilities at issue in this case do not contain zero percent ratings. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. The Board has the duty to assess the credibility and weight to be given to the evidence. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to increased ratings for right and left hand degenerative joint disease Factual background On VA examination in December 1994, the veteran complained of numbness of his fingers. Clinically, he had a full range of motion of his wrists and fingers. A bone scan revealed early osteoarthritic changes in each hand's thumb and second and third fingers. In August 1995, the veteran stated that his hands were an impairment because in the normal course of conducting business and daily activities it was embarrassing not to be able to shake hands firmly with clients and friends, and because the ability to write and type were also impacted. A hearing was held at the RO in February 1996. The hearing cassette recording was accidentally erased before it was transcribed, but the hearing officer created a memo based on what he could remember from his notes and recollections of the hearing. He reported that the veteran had been experiencing pain and stiffness of his hands, usually when arising, and that there had been some swelling. The veteran later declined a further hearing opportunity in February 1999. A VA examination was conducted in June 1997. The veteran reported aching and stiffness of his hands. He was taking Motrin(r) for joint pains. Examination of the hands revealed bony irregularity in the proximal interphalangeal joints of each hand. Range of motion was normal. The veteran was able to form a fist without difficulty. The impression was bilateral hand discomfort. A bone scan was ordered. A September 1997 VA bone scan report revealed foci of increased activity, consistent with degenerative changes. A VA examination was conducted in September 1998. The veteran complained of discomfort in the distal interphalangeal and proximal interphalangeal joints, and stated that weather changes caused discomfort. He reported that on cool winter mornings, he would have to soak his hands in hot water before being able to use them, and that opening jars was difficult most of the time. Clinically, his hands had bony irregularities in the distal interphalangeal joints of the second through fifth fingers bilaterally. Range of motion of the hands was normal. There was no swelling. Strength of the fingers was mildly diminished, mainly due to pain in the distal interphalangeal joints. X-rays of the hands were normal. Analysis The evidence shows that the veteran has X-ray evidence of arthritis in more than one minor joint of each hand. See 38 C.F.R. § 4.45(f) (1999). The Board is of course aware that X-rays of the hands in September 1998 were normal. However, other medical evidence of record, including the 1994 and 1997 bone scans, clearly indicate the presence of degenerative disease. Although there is evidence of arthritis, ranges of motion of the hands are normal. Therefore, a compensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003 is not warranted. See also 38 C.F.R. § 4.31. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United Sates Court of Appeals for Veterans Claims held that in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45 (1998), and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. In this case, there is some evidence, in the form of the most recent VA examination report, of "mild" diminished strength in the veteran's fingers due to pain. The Board believes that a 10 percent disability rating may be assigned for each hand in order to compensate the veteran for this mild diminished finger strength, which appears to be the only identifiable functional loss. The Board notes that a claim placed in appellate status by disagreement with the original or initial rating award, as is the case here with respect to these two disabilities, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. In this case, the Board is unable to identify any distinct period since July 1993 when either more or less than a 10 percent rating for each hand's degenerative joint disease is warranted. Accordingly, 10 percent ratings are assigned for each hand effective from July 16, 1993, the date when the veteran filed his claim for service connection for arthritis of the hands. Entitlement to an increased rating for degenerative joint disease of the hips Factual background The veteran was treated for hip problems in service and on service evaluation in December 1991, he complained that left hip problems were preventing him from jogging regularly. On VA examination in April 1992, X-rays of the veteran's hips were normal. On VA examination in June 1997, the veteran complained of pain in his hips. Clinically, range of motion of the hips was normal, with flexion to 120 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The impression was intermittent bilateral hip discomfort. A bone scan was ordered. The bone scan which was conducted in September 1997 was significant for increased uptake in the superior and inferior acetabula, consistent with mild degenerative change. A VA examination was conducted in September 1998. The veteran complained that his hip pain had been intermittent initially, but that over the past several years, it had become more persistent, left greater than right. He stated that he had moderate pain daily. On good days, he could walk up to two miles. On bad days, he could still walk a mile. Going up and down steps would cause discomfort. Clinically, the hips were not tender to palpation laterally, and their range of motion was normal. Motor examination was entirely normal. X-rays of the hips were normal. Analysis The veteran has bone scan evidence of arthritis in his hips. He does not have any limitation of motion of the hips. Therefore, under Diagnostic Codes 5003 and 5250 to 5253 (the latter Diagnostic Codes permit compensable ratings when specified amounts of limitation of motion are shown), a compensable rating is not warranted. Under 38 C.F.R. §§ 4.40 and 4.45, a compensable rating for each hip would be warranted if there were satisfactory evidence of a compensable degree of painful motion or other impairment of function due to pain. Since there is no evidence of limitation of motion due to pain or atrophy, muscle spasm, weakness, incoordination, or the like, a compensable rating is not warranted for either hip pursuant to 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet.App. 202 (1995). Since the claim veteran's claim with respect to his left knee disability is not an original claim, Fenderson is inapplicable. Entitlement to an increased rating for left knee degenerative joint disease Factual background On VA examination in April 1992, the veteran's left knee exhibited minimal crepitus. X-rays of the left knee were normal. On VA examination in June 1997, the veteran reported tearing a left knee meniscus in 1988, and that he now had clicking and at times and severe discomfort. Moreover, weather changes would cause pain, and walking was limited to 1/2 mile. He was taking Motrin(r) as needed for joint pain. Clinically, the left knee exhibited some crepitus but no tenderness or swelling, and its range of motion was normal with extension to zero degrees and flexion to 140 degrees. The impression was left knee pain due to an in-service injury. Degenerative joint disease was to be ruled out with a bone scan. A VA bone scan in September 1997 revealed minimal areas of abnormal uptake which were highly suggestive of degenerative changes. On VA examination in September 1998, the veteran complained of left knee pain and reported having intermittent recurrence of swelling. He denied locking, and he reported being able to walk one to two miles with pain. Clinically, his left knee range of motion was normal, but there was crepitus. There was no effusion or instability. X-rays of the left knee revealed small osteophytes from the undersurface of the patella. There was an oval shaped ossification projecting within the posterior recess of the knee. The radiologist noted that this finding was not present on prior exam, so therefore, it probably represented an osteocartilaginous loose body. No joint effusion was present radiographically. The VA examiner's impression was left knee pain secondary to meniscus tear, and she noted that the left knee X-ray demonstrated mild osteoarthritis and a loose body. Analysis The Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). With respect to the veteran's left knee, a separate 10 percent rating is, in the opinion of the Board. warranted due to the left knee pathology noted on the most recent VA examination, including the meniscus tear. This disability equates with slight knee impairment under Diagnostic Code 5257. See also 38 C.F.R. § 4.20. Another, separate 10 percent rating for left knee arthritis is not called for under the circumstances presented in this case, however. Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). In this case, while there is X-ray evidence of arthritis, there is no limitation of motion. Thus, a separate compensable rating due to limitation of motion is not warranted. A separate compensable rating for debility due to pain is not warranted under 38 C.F.R. §§ 4.40 and 4.45 because there is no evidence of weakness or limitation of motion due to pain. Moreover, 38 C.F.R. §§ 4.40 and 4.45 do not apply to knee disabilities which are rated under Diagnostic Code 5257. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Since the claim veteran's claim with respect to his left knee disability is not an original claim, Fenderson is inapplicable and the effective date of the 10 percent rating will not be considered by the Board in the first instance. Extraschedular consideration Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. However, in September 1996, the RO considered the extraschedular criteria for the hand disabilities. The assignment of an extraschedular rating was rejected because, in the words of the RO, "it is not shown that there is such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." The RO also considered the matter of extraschedular ratings for the other disabilities in October 1998, when it indicated that "(t)he evidence available for review fails to establish any unusual disability picture to warrant referral to the Chief Benefits Director or the Director, Compensation and Pension Service." Therefore, the matters of extraschedular disability ratings are before the Board for review for each of the disabilities at issue. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The veteran has not identified any evidence that the service-connected disabilities at issue affect his employability in ways not contemplated by the rating schedule factors. The Board finds that there is no evidence of record to show that the disabilities at issue interfere with employment or affect his employability in ways not contemplated by the ratings now assigned under the Rating Schedule. The veteran states that his ability to shake hands, type, and write is compromised by his bilateral hand arthritis. He has not, however, presented any unusual disability pictures showing marked interference with employment. Furthermore, there is no evidence to indicate that the disabilities affect his earning capacity by requiring frequent hospitalizations. "An exceptional case includes such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards." Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Board finds that in this case, the disability pictures are not so exceptional or unusual as to warrant an evaluation on an extraschedular basis. It has not been shown that the disabilities at issue have caused marked interference with employment or necessitated frequent periods of hospitalization. ORDER A separate 10 percent disability rating for right hand degenerative joint disease is granted, subject to VA law and regulations governing the payment of monetary benefits. A separate 10 percent disability rating for left hand degenerative joint disease is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a compensable rating for right hip degenerative joint disease is denied. Entitlement to a compensable rating for left hip degenerative joint disease is denied. Entitlement to a separate disability rating of 10 percent for left knee degenerative joint disease is granted, subject to controlling regulations governing the payment of monetary benefits. Barry F. Bohan Member, Board of Veterans' Appeals