Citation Nr: 18160624
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 18-22 625
DATE:	December 27, 2018
ORDER
An effective date prior to April 23, 2008, for polyarthritis associated with chronic Hepatitis C, is denied.
A 20 percent rating, but no more, for polyarthritis associated with chronic Hepatitis C, is granted, subject to the laws and regulations governing the payment of monetary benefits.
FINDINGS OF FACT
1. The Veteran filed an initial claim for service connection for hepatitis C and associated complaints of polyarthritis on April 23, 2008.
2. The Veteran’s polyarthritis has been characterized by chronic residuals of pain and swelling of the fingers joints in her left and right hands.  
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to April 23, 2008, for polyarthritis associated with chronic Hepatitis C, have not been met.  38 U.S.C. §§ 5110, 7104; 38 C.F.R. § 3.400.
2. The criteria for a 20 percent rating, but no more, for polyarthritis associated with chronic Hepatitis C, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5099-5002.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1979 to June 1980 with additional periods of active duty for training.  This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA).
In an April 2018 substantive appeal, the Veteran requested a hearing before the Board.  Thereafter, in September 2018, the Veteran withdrew her hearing request.  Accordingly, the Board finds that her hearing request has been withdrawn.  See 38 C.F.R. § 20.704(d), (e).
The Board notes that the Veteran has multiple other claims in a separate appeal stream.  As the claims are undergoing development, the Board declines to take jurisdiction of them at this time.
1. Entitlement to an effective date prior to April 23, 2008, for polyarthritis associated with chronic Hepatitis C
The Veteran is seeking an effective date prior to April 23, 2008, for her polyarthritis.  She was granted service connection for polyarthritis in an October 2016 Board decision.  The Veteran’s claim was granted on the basis of secondary service connection to her chronic Hepatitis C.  A June 2017 rating decision implemented the Board’s decision and awarded an effective date of April 23, 2008.  
The effective date for a grant of service connection for reopened claims is the date of receipt of claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(r).  A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999).
The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to be paid.  Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).  Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit.  The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.  Brannon v. West, 12 Vet. App. 32, 34-35 (1989).
After a review of the evidence, the Board has determined that an earlier effective date is not warranted.  The Board finds that April 23, 2008, is the date of the Veteran’s first formal claim with respect to Hepatitis C.  The Veteran’s Hepatitis C claim was found to encompass polyarthritis, which is why they share the same effective date.  The evidence does not indicate that she filed a related claim prior to this date, nor has she asserted that she has submitted such a claim before this date.  Therefore, the Board finds that, for effective date purposes, this is the date of receipt for the Veteran’s claim.
For awards of secondary service connection, the effective date can be no earlier than the date of the claim for service connection on a secondary basis.  See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007).  In this case, the effective date for the award of secondary service connection for polyarthritis and service connection for Hepatitis C is April 23, 2008, which is the date VA received the Veteran’s claim.  Under 38 C.F.R. § 3.400, it follows that an effective date for secondary service connection cannot be earlier than the effective date warranted for the foundational disorder upon which service connection was granted.  
Consequently, the Board finds that April 23, 2008, is the earliest possible effective date for the award of service connection for the Veteran’s polyarthritis.  As such, the claim seeking an effective date prior to April 23, 2008 is denied.
2. Entitlement to a compensable rating for polyarthritis associated with chronic Hepatitis C
The Veteran is seeking a compensable rating for her polyarthritis, which is associated with her chronic Hepatitis C.  The Board finds that a 20 percent rating, but no higher, is warranted for the Veteran’s condition.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When 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.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.
Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See 38 C.F.R. § 4.59.
There is no specific diagnostic code for polyarthritis.  As a result, it must be rated as analogous to the diagnostic code that most closely approximates her disability.  She is current evaluated for her disorder under DC 5099-5002, which refers to a musculoskeletal disorder rated as analogous to rheumatoid arthritis.  The Board agrees that this diagnostic code is appropriate as the Veteran’s polyarthritis very closely approximates the effects of rheumatoid arthritis.  
Under DC 5002, to obtain a 20 percent rating, a veteran must demonstrate an active disease process with one or two exacerbations a year in a well-established diagnosis.  A 40 percent disability evaluation is warranted when there are symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year.  38 C.F.R. § 4.71a, DC 5002.
Under DC 5002, for chronic residuals of arthritis, such as limitation of motion or ankylosis, favorable or unfavorable, the regulations instruct to rate under the appropriate diagnostic codes for the specific joints involved.  Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the 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 DC 5002.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5002.
Major joints include the wrists while multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered a group of minor joints, ratable on a parity with major joints.  38 C.F.R. § 4.45.
The Board determines that the Veteran’s chronic residuals warrant a pair of 10 percent ratings, which combine to a 20 percent rating.  Initially, the Board notes that the Veteran has been diagnosed with other disorders, such as a cervical spine disorder and fibromyalgia, which may imitate some of her polyarthritis symptoms.  In a March 2016 medical opinion, a VA examiner stated that the Veteran’s polyarthritis affects her finger joints.  Although the Board acknowledges that an x-ray conducted in June 2017 did not support the assertion of the Veteran having arthritis in her fingers, the Veteran’s physician explained that x-rays are not ideally sensitive at detecting arthritic changes.  In an August 2014 statement, the Veteran described how she has trouble tying her shoe or trying to pick up small objects.  The Board also notes how she complained of stiffness and swelling of the hands during a June 2017 VA examination.  Range of motion testing of the fingers on June 2017 VA examination revealed normal findings with no limitation of motion or ankylosis noted pursuant to the Diagnostic Codes used to evaluate the finger joints.  38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230.
However, although limitation of motion has been found to be noncompensable under the pertinent Diagnostic Codes for evaluating the hands and fingers, the Board concludes that the Veteran’s polyarthritis has manifested in both hands by swelling and stiffness.  As such, the Board concludes she is entitled to the minimum compensable rating for the joints.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Petitti v. McDonald, 27 Vet. App. 415 (2015).  As detailed above, multiple involvements of the finger joints should be rated on parity with major joints.  38 C.F.R. § 4.45.  As a result, the Board finds that the Veteran is entitled to a 10 percent rating for the left hand finger joints and a 10 percent rating for the right hand finger joints.  Under DC 5002, these ratings are combined for a 20 percent rating.
The Board has considered whether the Veteran could be eligible for a higher rating under symptom combinations productive of definite impairment of health supported by examination findings or incapacitating exacerbations occurring.  However, there is no evidence to suggest that the Veteran’s polyarthritis, which affects her hands, was severe enough to incapacitate her at any time.  Additionally, the impairment to the Veteran’s health by her polyarthritis is limited.  The Board’s conclusion is supported by a May 2016 opinion by the Veteran’s treating physician.  The physician opined that the Veteran’s polyarthritis is relatively mild and should not be totally disabling.  
In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that her disability is worse than the rating she currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
When considering the appropriate rating, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  In this case, the Board has specifically taken into account the Veteran’s reported complaints, including her swelling and stiffness.  
Competency of evidence differs from weight and credibility.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).  
On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated.
In summary, the Board concludes that a 20 percent, but no higher, rating is warranted for the Veteran’s polyarthritis.
 
M. Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Borman, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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