Citation Nr: 1402131	
Decision Date: 01/15/14    Archive Date: 01/31/14

DOCKET NO.  12-33 914	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent from July 13, 2006 to September 18, 2012, for psoriatic arthritis with knee, hand and finger involvement.

2.  Entitlement to an increased rating for disc bulge L3-4 and L4-5 with facet arthropathy currently rated 10 percent.

3.  Entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.

4.  Entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the left (nondominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.

5.  Entitlement to a separate, compensable evaluation for psoriatic arthritis of the left knee (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.  

6.  Entitlement to an initial compensable rating for psoriatic arthritis of the right knee (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.

7.  Entitlement to an initial compensable rating for psoriatic arthritis of the ring finger of the right (dominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012. 

8.  Entitlement to an initial compensable rating for psoriatic arthritis of the ring finger of the left (nondominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.

9.  Entitlement to an initial compensable rating for psoriatic arthritis of the little finger of the right (dominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.

10.  Entitlement to an initial compensable rating for psoriatic arthritis of the little finger of the left (nondominant) hand (previously evaluated as psoriatic arthritis with knee, hand and finger involvement) from September 18, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from November 2002 to September 2005.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

In a rating decision issued in October 2012, the RO awarded separate evaluations of 10 percent for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand; the thumb, index, and long finger of the left (nondominant) hand; and of the left knee.  These ratings were made effective September 18, 2012.

The RO also awarded separate, but noncompensable ratings for psoriatic arthritis of the right knee; the ring finger of the right (dominant) hand; the ring finger of the left (nondominant) hand; the little finger of the right (dominant) hand; and the little finger of the left (nondominant) hand.  The noncompensable ratings were also made effective September 18, 2012.

The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in September 2013.  A transcript of the hearing is in the Veteran's file.

The issues of entitlement to separate, compensable evaluations for psoriatic arthritis of the right knee; the ring finger of the right (dominant) hand; the ring finger of the left (nondominant) hand; the little finger of the right (dominant) hand; and the little finger of the left (nondominant) hand from September 18, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to September 18, 2012, psoriatic arthritis with knee, hand and finger involvement manifested as an active disease process and with incapacitating exacerbations that occurred three or more times a year.

2.  Disc bulge L3-4 and L4-5 with facet arthropathy is manifested by pain and forward flexion to no less than 70 degrees, including upon repetitive motion; without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or any neurological involvement of the lower extremities.

3.  At a hearing held in September 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals with respect to the claims of entitlement to separate, compensable evaluations for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand; the thumb, index, and long finger of the left (nondominant) hand; and the left knee. 


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 40 percent, but no more, from July 13, 2006  to September 18, 2012, for psoriatic arthritis with knee, hand and finger involvement have been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.104, Diagnostic Codes (DCs) 5002, 5009 (2013).

2.  The criteria for a rating of 20 percent, but no more, for disc bulge L3-4 and L4-5 with facet arthropathy have been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.104, Diagnostic Code (DC) 5242 (2013).

3.  The criteria for the withdrawal of a substantive appeal on the claim for entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand have been met.  38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).  

4.  The criteria for the withdrawal of a substantive appeal on the claim for entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the left (nondominant) hand have been met.  38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 

5.  The criteria for the withdrawal of a substantive appeal on the claim for entitlement to a separate, compensable evaluation for psoriatic arthritis of the left knee have been met.  38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  Generally, a claimant for a higher VA disability rating will be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  

At the Veteran's September 2013 hearing before the undersigned, he indicated that an initial 30 percent rating for psoriatic arthritis with knee, hand and finger involvement for the period prior to September 18, 2012, and a 20 percent rating for his disc bulge L3-4 and L4-5 with facet arthropathy would satisfy his appeal in full.  Accordingly, the award below of a 40 percent rating for psoriatic arthritis with knee, hand and finger involvement and a 20 percent rating for disc bulge L3-4 and L4-5 with facet arthropathy constitutes a full grant of the benefit sought.  

The Veteran has also withdrawn his appeals for entitlement to separate, compensable evaluations for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand; the thumb, index, and long finger of the left (nondominant) hand; and the left knee.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist with respect to any of the issues on appeal was harmless and will not be further discussed.   

I. Increased Ratings

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  In every instance where the schedule does not provide a compensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31. 

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).


Psoriatic Arthritis 

The Veteran's service-connected psoriatic arthritis with knee, hand and finger involvement is rated as 20 percent disabling from July 13, 2006, (the effective date of service connection) to September 18, 2012.  From September 18, 2012 the knee, hand and finger involvement was subject to separate evaluations.

Other types of arthritis are to be rated as rheumatoid arthritis.  38 C.F.R. § 4.71a, DC 5009.  

Diagnostic Code 5002 pertains to rheumatoid (atrophic) arthritis and provides that the disability may be rated as an active process or on the basis of chronic residuals.  38 C.F.R. § 4.71a, DC 5002.  For the period prior to September 18, 2012, the Veteran's psoriatic arthritis was an active process.

Rheumatoid arthritis, as an active process, is rated as follows: 

One or two exacerbations a year in a well-established diagnosis is rated as 20 percent disabling.  Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year are evaluated as 40 percent disabling.  When there is less symptomatology than the criteria for 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, a 60 percent rating is assigned.  Finally, with constitutional manifestations associated with active joint involvement that is totally incapacitating is rated as 100 percent disabling.  38 C.F.R. § 4.71a, DC 5002. 

Diagnostic Code 5002 does not define 'incapacitating exacerbations.'  However, 38 C.F.R. Chapter 4 consistently defines 'incapacitating episodes' as those involving bed rest and treatment by a physician; see inter alia 38 C.F.R. §4.71a, DC 5243 (intervertebral disc syndrome) and see also 38 C.F.R. § 4.97 (schedule of ratings - respiratory disorder, multiple DCs) which define 'incapacitating episode' as one requiring bed rest and treatment by a physician. 

In private medical records dated in July 2006, the Veteran's treating physicians indicated that the Veteran suffered from daily pain due to his psoriatic arthritis.

On VA examination in February 2007, the Veteran reported painful joints, stiffness, and locking in his knees.  He reported that his episodes of pain occurred three times a week and lasted for one day.  He denied incapacitating episodes, but noted that the when the pain occurred it caused limited movement and precluded his ability to walk.  With regard to his hands and fingers, his episodes of pain occurred three times a week and lasted for 8 hours.  He was able to function with medication, but reported very limited movement when in pain.  Following the clinical examination, the examiner opined that the Veteran's conditions had a significant impact on his daily activities.

At a VA examination in February 2009, the Veteran reported use of Humira to treat his psoriatic arthritis.  He reported that he had constant pain due to his psoriatic arthritis.  He noted that had to "call in from work" an estimated twice a month due to pain exacerbations.  

The claim file contains certifications dated in April 2010 and March 2011, from Drs. Shasteen and McGee, the Veteran's treating rheumatologist and internist.  Drs. Shasteen and McGee each reported that the Veteran has periodic, incapacitating flare-ups of psoriatic arthritis that occur every two months.  They further noted that his flare-ups typically lasted one to two days and during these times the Veteran would be unable to perform his job functions, and thus it was medically necessary that he be absent from work during his flare-ups.

The objective clinical evidence establishes that the Veteran has a well-established diagnosis of psoriatic arthritis with knee, hand and finger involvement.  The evidence also reflects that the Veteran's psoriatic arthritis has been an active process since the effective date of service connection, which is July 13, 2006, up until September 18, 2012.  

At his September 2013 hearing before the undersigned, the Veteran's representative asserted that a 30 percent rating was warranted for the psoriatic arthritis with knee, hand and finger involvement prior to September 18, 2012.  He essentially argued that there was involvement of one major joint (left knee) and two minor joints (thumb, index, and long finger of the right hand and the thumb, index, and long finger of the left hand), and a separate 10 percent rating is warranted for each of these joints.  See Hearing Transcript, page 11.

The Board has considered this assertion, but the evidence more closely approximates the criteria for a 40 percent rating, a finding which clearly is of greater benefit for the Veteran.  The Veteran is noted to have had incapacitating exacerbations due to his psoriatic arthritic episodes at least three or more times a year.  His episodes are considered to have been incapacitating because the Veteran credibly and competently reported that they caused limited movement and precluded his ability to walk and to work.  His treating physicians have essentially corroborated his report.  

In light of the Veteran's explicit statements at the September 2013 hearing before the undersigned, the assignment of a 40 percent rating satisfies his appeal in full.  Nonetheless, it should be noted that at no point during the period of the appeal was the Veteran's service-connected psoriatic arthritis with knee, hand and finger involvement manifested by symptomatology such as weight loss and anemia that was productive of severe impairment of health, or any severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged period.  As such, the next highest rating, which is 60 percent, is not met or more nearly approximated.  

An initial rating of 40 percent, but no higher, is warranted for psoriatic arthritis with knee, hand and finger involvement from the date of the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 




Disc Bulge L3-4 and L4-5 with Facet Arthropathy 

The Veteran's service-connected disc bulge L3-4 and L4-5 with facet arthropathy is currently rated at 10 percent.  The Veteran asserts that he meets the criteria for a higher rating.

Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling.  38 C.F.R. § 4.71a, DC 5242.

Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, DC 5242, Note 1.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees.  38 C.F.R. § 4.71a, DC 5242, Note 2.  All measured ranges of motion should be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, DC 5242, Note 4.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243. 

Note 1: For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Private treatment records dated in July 2006 reflect the Veteran had chronic back pain.  No ranges of motion measurements are provided.  The private treatment records also show the Veteran suffered an injury to his back on the job, in December 2008.  Two days after this acute injury, his lumbar flexion range of motion was limited to 45 degrees.  Four days later, his lumbar flexion was noted to have reached 60 degrees.

At VA examinations provided in November 2006, February 2007, February 2009, and September 2012, the Veteran reported chronic back pain.  He denied having periods of incapacitation.  The Veteran's functional impairment included limitation of frequent bending, lifting heavy objects, difficulty with work and sleep; limited movements, and difficulty prolonged walking and standing.  On all physical examinations, the Veteran's gait and posture were normal.  The spine was symmetrical with normal curvature.  There was no guarding or muscle spasm.  Tenderness of the lumbar spine was noted at each examination.  At the September 2012 VA examination, the examiner specifically indicated there was localized tenderness or pain to palpation of the joints and soft tissue of the thoracolumbar spine.  

With respect to range of motion, the November 2006 and February 2007 VA examination reports reflect forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees.  The February 2009 examination report shows the same findings, except that flexion was possible to only 80 degrees.  At the September 2012 examination, the range of motion was flexion to 70 degrees, extension to 30 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 20 degrees.  With the exception of the November 2006 examination, there was additional functional loss/impairment (but not additional limitation of motion) on repetitive motion due to factors such as pain, weakness, fatigability and lack of endurance.

Ankylosis was not present at any of these examinations.  All reflex and sensory function examinations were within normal limits and there was no other evidence of neurologic abnormalities such as bowel or bladder dysfunction.  There was no objective evidence of radicular pain or any other signs or symptoms of radiculopathy.  IVDS was not present and there were no incapacitating episodes.  The examiners noted that the functional impact of the disability was that the Veteran is limited with regard to frequent bending, lifting heavy objects, and prolonged walking and standing.

The Veteran's lumbar spine degenerative disc disease is currently rated at 10 percent pursuant to 38 C.F.R. § 4.71a, DC 5242.  All of the examination reports reflect objective findings evidence of lumbar tenderness and, more specifically, localized tenderness on palpation of the thoracolumbar spine.  In the absence of additional abnormal gait or abnormal spinal contour, this finding alone warrants the minimum 10 percent rating.  

To merit a disability rating of 20 percent, the next highest possible rating, requires evidence of thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least 2 weeks during the past 12 months warrants a 20 percent rating.  

The evidence shows that the Veteran's disc bulge L3-4 and L4-5 with facet arthropathy has manifested with chronic pain, but without limitation of motion of less than 70 degrees, including upon repetition, except immediately following a work-related injury in December 2008.  The December 2008 findings of flexion to 45 and 60 degrees is not considered to be representative of the Veteran's 'typical' range of motion as it was clearly attributable to an acute injury and the subsequent VA examinations show marked improvement.  In addition, there is no evidence showing the Veteran's service-connected back disability has resulted in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  

However, in contemplation of his limited ability to engage in frequent bending, lifting heavy objects, and prolonged walking and standing due to his back pain (i.e. functional loss), which was noted by all the examining VA clinicians, a higher rating of 20 percent is warranted.  This 20 percent rating adequately contemplates any functional loss due to flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. 

The rating criteria provide for separate ratings for neurologic and orthopedic manifestations.  See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a.  No neurological abnormalities associated with the service-connected disc bulge L3-4 and L4-5 with facet arthropathy have been shown by the evidence, thus separate ratings for neurologic manifestations are not warranted.

At his September 2013 hearing before the undersigned, the Veteran explicitly stated that the assignment of a 20 percent rating would satisfy his appeal.  Nonetheless, at no point during the pendency of this appeal has the Veteran's service-connected disc bulge L3-4 and L4-5 with facet arthropathy been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine; or, physician-prescribed bed rest for a period of at least 4 weeks during a 12-month period.  The next highest rating, which is 40 percent, is not met or more nearly approximated.  

An evaluation of 20 percent, but no higher, is warranted for disc bulge L3-4 and L4-5 with facet arthropathy.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Extraschedular Ratings and TDIU

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Neither the first nor second Thun element is satisfied here.  Prior to September 18, 2012, the Veteran's service-connected psoriatic arthritis with knee, hand and finger involvement manifested with pain and symptoms that closely approximated incapacitating exacerbations that occurred at least three or more times a year.  These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to other forms of arthritis provide disability ratings on the basis of exacerbating episodes, as well as limitation of motion or ankylosis.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5002 and 5009 (providing ratings on the basis of ankylosis and limited motion).  

Throughout the appeal, the Veteran's service-connected disc bulge L3-4 and L4-5 with facet arthropathy manifested with chronic back pain, limited motion, and some functional impairment.  These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disabilities of the back provide disability ratings on the basis of limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242 (providing ratings on the basis of ankylosis and limited flexion and extension).  

Moreover, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37.  In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the ways in which the rating schedule contemplates these two disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's service-connected psoriatic arthritis with knee, hand and finger involvement manifested with pain and incapacitating exacerbations, as well as his service-connected disc bulge L3-4 and L4-5 with facet arthropathy both of which manifest with chronic back pain, limited motion, and some functional impairment.  In short, there is nothing exceptional or unusual about the Veteran's psoriatic arthritis and disc bulge L3-4 and L4-5 disorders because the respective rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet.App. at 115.

With respect to the second Thun element, there is no evidence of frequent hospitalization or marked interference with employment caused by either disability.  The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted.   

Finally, the Board has contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted.  As the Veteran has been continuously employed throughout the period of the appeal and there is no evidence of  unemployability, the question of entitlement to a TDIU is not raised.





II. Withdrawn Issues

In December 2012, the Veteran perfected an appeal to the Board on claims of entitlement to separate, compensable evaluations for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand; the thumb, index, and long finger of the left (nondominant) hand; and the left knee.  At the videoconference held in September 2013 before the undersigned, and prior to the Board promulgating a decision in the appeal, the Veteran withdrew his appeal with respect to these issues.

Accordingly, the Board does not have appellate jurisdiction to review the appeal as it relates to these three issues and the appeal is dismissed.  

ORDER

An initial rating of 40 percent from July 13, 2006 to September 18, 2012, for psoriatic arthritis with knee, hand and finger involvement is granted.

A 20 percent rating for disc bulge L3-4 and L4-5 with facet arthropathy is granted.

The appeal of entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the right (dominant) hand is dismissed.  

The appeal of entitlement to a separate, compensable evaluation for psoriatic arthritis of the thumb, index, and long finger of the left (nondominant) hand is dismissed.  

The appeal of entitlement to a separate, compensable evaluation for psoriatic arthritis of the left knee is dismissed.  




REMAND

The Veteran seeks separate, compensable evaluations for psoriatic arthritis of the right knee; the ring finger of the right (dominant) hand; the ring finger of the left (nondominant) hand; the little finger of the right (dominant) hand; and the little finger of the left (nondominant) hand.  Additional development is necessary prior to adjudication of these claims.  

A VA examination was conducted in September 2012, but X-rays were not accomplished.  X-rays were also not performed at the prior VA examinations of record.  A new examination that includes X-rays must be provided to the Veteran to facilitate proper adjudication of the claims on appeal.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the claims on appeal.  Obtain copies of all records not already of record, including any pertinent VA treatment records dated since September 2013.  Any negative response must be in writing and associated with the claim file.

2.  Schedule the Veteran for a VA examination by an appropriate medical professional to evaluate the current nature and severity of his psoriatic arthritis affecting the right knee; the ring fingers of both hands; and the little fingers of both hands.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained in those files that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

The examiner must describe in detail all symptomatology associated with the psoriatic arthritis in the Veteran's right knee and the bilateral ring and little fingers.  X-rays must be performed to determine whether arthritis is present in these areas.  The Veteran's lay statements regarding symptomatology must also be considered.   

3.  Readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs



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