Citation Nr: 0300388 Decision Date: 01/08/03 Archive Date: 01/28/03 DOCKET NO. 91-12 015 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. The propriety of the initial 40 percent rating for the service-connected arthritis of the neck. 2. The propriety of the initial 30 percent rating for the service-connected arthritis of the right shoulder. 3. The propriety of the initial 30 percent rating for the service-connected arthritis of the right elbow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from September 1950 to December 1952. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a December 1989 rating decision of the RO. In July 1991, the Board denied the veteran's claims of service connection of ichthyosis vulgaris, arthritis of the right knee, arthritis of the left knee and arthritis of the lumbosacral spine. The Board also denied higher ratings in excess of 10 percent for the service-connected traumatic arthritis of the right elbow, 10 percent for the service-connected traumatic arthritis of the right shoulder and 10 percent for the service-connected traumatic arthritis of the neck. The Board also denied the veteran's claim for a certificate of eligibility for financial assistance in acquiring specially adaptive housing and a special home adaptation grant. The Board, however, granted service connection for residuals of an injury to the right eye. The veteran appealed to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court"). In an August 1993 decision, the Court affirmed the Board's denial of service connection for arthritis of the right knee, arthritis of the left knee and arthritis of the lumbosacral spine as well as the denial of the claim for a certificate of eligibility for financial assistance in acquiring specially adaptive housing and a special home adaptation grant. The Court, however, remanded the issues of service connection for ichthyosis vulgaris and increased ratings for the service-connected traumatic arthritis of the right elbow, right shoulder and neck for further development and readjudication. The Court also held that the issue of a total rating based on individual unemployability due to service-connected disability should have been addressed by the Board. In June 1994, the Board remanded the case for additional development of the record. In an October 1994 rating decision, the RO increased the ratings for the service-connected traumatic arthritis of the neck to 40 percent disabling, for the service- connected right shoulder arthritis to 30 percent disabling and for the service-connected right elbow arthritis to 20 percent disabling, effective on August 19, 1994. In addition, the RO assigned a total rating based on individual unemployability due to service-connected disability, effective on August 19, 1994. In a February 1995 rating decision, the RO granted service connection for ichthyosis dermatitis and atrophic dermatitis and assigned a 10 percent evaluation. The same rating action denied the veteran's new claims of service connection for glaucoma and cataracts. In July 1995, the veteran filed a Notice of Disagreement with respect to the decision denying a rating in excess of 10 percent for the service-connected skin disorder and an earlier effective date for the total rating based on individual unemployability due to service-connected disability. In September 1995, the veteran submitted a document which was interpreted as a Notice of Disagreement with respect to a decision that denied the claims of service connection for glaucoma and cataracts. The statement was also interpreted as the veteran's attempt to reopen the claim for a certificate for eligibility for a special housing assistance or special home adaptation grant; the claims of service connection for arthritis of the lumbosacral spine, right knee and left knee; and a claim for a total schedular evaluation. The veteran was provided with a Statement of the Case on the issues of service connection for glaucoma and cataracts; increased ratings for the service-connected skin disorder, right elbow, right shoulder and neck disability; housing assistance; and an earlier effective date for the assignment of a total rating based on individual unemployability due to service-connected disability. In a March 1996 report of contact, it was noted that the veteran had filed his Substantive Appeal at the Board on the issues of service connection for glaucoma and cataracts; increased ratings for the service-connected skin, right elbow, right shoulder and neck disorders; housing allowance; and an earlier effective date for the assignment of a total rating based on individual unemployability due to service-connected disability. In a September 1996 decision, the Board granted service connection for glaucoma and cataracts; assigned a 30 percent rating for the service-connected ichthyosis vulgaris and atrophic dermatitis; assigned an effective date of May 12, 1992 for the award of a total compensation rating based on individual unemployability; and denied eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. The Board remanded the issues of increased ratings for the service-connected arthritis of the right shoulder, right elbow and neck. In a September 1996 rating decision, the RO effectuated the Board's September 1996 decision by assigning a 30 percent rating for the veteran's service-connected skin disability effective in December 1994; recharacterizing the veteran's right eye disability as residuals of a right eye injury with decreased visual acuity, glaucoma and cataract; and assigning a total compensation rating based on individual unemployability effective on May 12, 1992. In a November 1996 correspondence, the veteran requested an effective date of August 25, 1989, for the assignment of the 30 percent rating for the service-connected skin disability. In January 1997, the Board received a Motion for Reconsideration from the veteran. The Motion was denied by the designee of the Chairman of the Board in April 1997. In a July 1998 rating decision, the RO assigned an effective date of February 24, 1989, for the higher ratings for the service-connected arthritis of the right elbow, right shoulder and neck. During the course of this appeal, the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection, as in this case, and a claim for an increased rating for a service-connected condition. Fenderson v. West, 12 Vet. App. 119 (1999). In the case of an initial rating, separate ratings can be assigned for separate periods of time-a practice known as "staged" rating. Thus, in its October 1999 decision, the Board appropriately recharacterized the issues as shown on the first page of this document. In the October 1999 decision, the Board assigned an initial 30 percent rating for the veteran's service- connected arthritis of the right elbow. The other claims for increase were denied, and the veteran appealed to the Court. In February 2001, the Court granted VA's own Motion to Vacate and Remand. The Board's October 1999 decision was vacated, except that portion that increased the service- connected right elbow arthritis disability rating from 20 to 30 percent, and the case was remanded to the Board. In January 2002, the Board remanded the case for additional development. In March 2002, the Board received a Motion for Reconsideration from the veteran. The Motion was denied by the designee of the Chairman of the Board in May 2002. In a May 2002 statement, the veteran requested service connection for arthritis of the low back, both knees, and left shoulder, as well as a right kidney resection and hypertension. He also stated that he wanted a total rating due to individual unemployability effective anywhere from 1982 to 1984. He also requested an earlier effective date for the grant of service connection for arthritis of the cervical spine, right shoulder and right elbow. These matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's service-connected arthritis of the neck is not shown to be productive of more than severe functional limitation due to pain; intervertebral disc syndrome is not demonstrated. 3. The veteran's service-connected arthritis of the right shoulder is not shown to be manifested by more than motion limited to 50 degrees from the side due to pain. 4. The veteran's service-connected arthritis of the right elbow is not shown to be manifested by more than motion limited to 70 degrees, and a rating of 40 percent is precluded by the amputation rule. CONCLUSION OF LAW 1. The criteria for the assignment of an initial rating in excess of 40 percent rating for the service-connected arthritis of the neck have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate I, 4.71a including Diagnostic Codes 5003, 5010, 5285, 5292, 5293 (2002). 2. The criteria for the assignment of an initial evaluation in excess of 30 percent for the service- connected arthritis of the right shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate I, 4.71a including Diagnostic Codes 5003, 5010, 5200, 5201 (2002). 3. The criteria for the assignment of an initial evaluation in excess of 30 percent for the service- connected arthritis of the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate I, 4.71a including Diagnostic Codes 5003, 5010, 5206 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted in the January 2002 remand, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a) (West Supp. 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001 (to be codified as amended at 38 C.F.R. § 3.102). They also include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West Supp 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). Considering the record, the Board finds that the passage of the VCAA and its implementing regulations does not prevent the Board from rendering a decision on the claim on appeal at this time, as all notification and development action needed to render a fair decision on the claim on appeal has, to the extent possible, been accomplished. Through the rating decisions, Statement of the Case, Supplemental Statements of the Case, various correspondence from the RO, and the Board's decisions and remands, and the Court's orders, the veteran and his representative have been notified of the law and regulations governing entitlement to the benefit he seeks, the evidence which would substantiate his claim, and the evidence which has been considered in connection with his appeal. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and provided ample opportunity to submit information and evidence. Moreover, because, as explained hereinbelow, there is no indication whatsoever that there is any existing, potentially relevant evidence to obtain (and the veteran has been asked whether there is any such evidence), any failure to fulfill the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the VA, is harmless. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). The Board also finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the veteran in obtaining the evidence necessary to substantiate his claim. There is no outstanding request for a hearing. Furthermore, examinations and treatment records up to the present, have been associated with the claims file. The Board also notes that neither the veteran nor his representative has identified, and the record does not otherwise indicate, any existing pertinent evidence that is necessary for a fair adjudication of the claim that has not been obtained. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board's consideration of the claims at this juncture, without additional VCAA consideration, or for any additional notification and/or development action. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. A careful review of the service medical records shows that, in October 1951, the veteran was struck by mortar fragments in the right wrist. The injury resulted in a loss of about six centimeters of the ulna. The wound was debrided, and the veteran was evacuated. There was a complete loss of the soft tissue and bone for approximately twelve centimeters in the distal third of the forearm. There was a twelve-centimeter gap in the ulnar nerve. There was a complete absence of the ulnar function of the right hand. It was noted that the veteran was right-handed. In a January 1953 rating decision, the RO granted service connection for the residuals of a shell fragment wound to the right forearm. A combined 50 percent rating was assigned. In November 1958, the disability rating was increased to 70 percent rating, and the veteran was found to be entitled to special monthly compensation for the loss of use of one hand. In a June 1967 rating decision, the RO assigned a temporary 100 percent evaluation due to surgery on the veteran's arm. The temporary total evaluation was effective from April 3 to June 30, 1967. The veteran filed his claim for service connection for traumatic arthritis and for an increased rating for the residuals of his combat wound on February 24, 1989. By a decision of December 1989, the RO granted service connection and assigned separate 10 percent ratings for traumatic arthritis of the right elbow, right shoulder and neck, effective on February 24, 1989. That rating decision was based upon an October 1989 VA orthopedic examination which reported that the range of motion of the right elbow lacked 30 degrees of full extension and 40 degrees of flexion. There was minimal crepitus with the range of motion of the elbow. There was full forward flexion of the right shoulder but the abduction of the right shoulder was to 120 degrees. Internal and external rotation of the shoulder was full. In an application for compensation based on individual unemployability dated on May 12, 1992, the veteran reported that he had worked as a landscape gardener but could only work sporadically beginning in 1991. In an undated statement, the veteran's employer reported, in substance, that the veteran had been able to do only "some minimal sedentary labor" since 1987 due to his service-connected disabilities. In August 1994, a VA orthopedic examination was conducted. The veteran reported that he had attempted to do some work with gardening. He stated, however, that the activity caused increased pain in his right elbow, shoulder and back. The veteran's range of motion of the right shoulder was as follows: abduction to 60 degrees, adduction to 40 degrees, internal rotation to 45 degrees, external rotation to 45 degrees, extension to 40 degrees and flexion to 70 degrees. There was diffuse tenderness to palpation of shoulder with minimal crepitus. There was diffuse pain throughout the shoulder during the active range of motion studies. An examination of the neck demonstrated that forward flexion was to 50 degrees, backward extension to 20 degrees, lateral bending to 20 degrees, bilaterally, and rotation to 45 degrees, bilaterally. There was muscular spasm along the paraspinal musculature and tenderness in the area. There was no evidence of radicular symptoms. An examination of the right elbow demonstrated limitation of motion with flexion to 90 degrees and extension to 25 degrees. Pronation and supination were to 60 degrees, and there was diffuse pain with the range of motion studies. No palpable tenderness was elicited. X-ray studies of the right elbow showed degenerative changes. X-ray studies of the cervical spine showed foraminal narrowing and degenerative changes. X-ray studies of the right shoulder showed degenerative changes but no evidence of impingement syndrome. The diagnoses were those of traumatic arthritis of the right shoulder with severe limitation of motion and pain associated with motion, impingement/arthritis of the right shoulder with severe limitation of motion and pain associated with motion, degenerative disease of the cervical spine with severe limitation of motion with secondary muscle spasms and X-ray evidence of degenerative changes and neural foraminal narrowing, and limited motion of the right forearm. The orthopedist commented that the veteran had severe limitation of motion of his neck, right shoulder, right elbow, right wrist and right hand. In addition, it was reported that he had pain in the right lower back secondary to his injuries. It was his opinion that each disability contributed significantly to the veteran's ability to engage in substantially gainful employment. A VA outpatient treatment report dated in November 1994 indicates that the veteran was seen complaining of a painful right shoulder, neck and right flank. It was noted that he had poor function, paralysis of the right arm and hand and an ulnar nerve injury. The veteran had painful limitation of the neck and right shoulder. He was referred for physical therapy. In September 1995, the veteran underwent an orthopedic examination at a private facility. The veteran complained of having pain in his right shoulder and pain in his right hip. An examination of the veteran's right shoulder showed positive impingement sign but reasonably good rotator cup strength. Some pain was present with abduction across the body. There was no loss of the normal glenohumeral mobility. The relevant diagnoses were those of impingement and tendinitis of the right shoulder. In December 1996, another VA examination was conducted. The veteran complained of having pain in the neck, right shoulder and elbow. Specifically, he stated that he had pain on bending and turning his neck. He had night pain and pain that radiated over the back part of his neck and down the upper spine. He had occasional dysesthesias and paresthesias in both upper extremities. Regarding the right shoulder, the veteran had pain on motion and an inability to lift anything over his head. He had night pain and complained of weakness. He could not lift anything over 20 pounds without pain. He complained of having constant right elbow pain, which increased at night. He stated that the pain went down into his wrist. Regarding the neck, the veteran had lateral rotation to 15 degrees, bilaterally, full forward flexion and extension to 10 degrees. The examiner noted that the veteran had pain with motion of the neck in the mid, upper portion of the back. Regarding the shoulder, the veteran had 90 degrees of abduction, 20 degrees of internal rotation and 20 degrees of external rotation. There was mild deltoid atrophy and crepitus on motion. There was tenderness over the anterior aspect of the shoulder and pain on motion. Regarding the elbow, the veteran lacked 20 degrees of extension and 20 degrees of flexion. He had full pronation and supination. He had weakness of his entire right upper extremity both in the shoulder musculature and in his elbow with weakness of the biceps. The VA X-ray studies of his neck and right elbow revealed moderate degenerative arthritis. X-ray studies of the right shoulder revealed mild degenerative arthritis. An MRI study of the cervical spine showed cervical spondylosis at C6-C7 with hypertrophic bone changes and disc protrusion resulting in mild canal narrowing and bilateral intervertebral foramina narrowing. In a June 1997 addendum, the December 1996 VA examiner noted that, due to chronic pain, the veteran had functional impairment of the neck, right shoulder and right elbow. The various VA outpatient treatment and therapy reports show continued complaints involving the veteran's neck, right shoulder and right elbow. Of particular interest are notations showing C6-C7 radiculopathy. In February 1998, another VA examination was conducted. The veteran complained of having pain in the neck, right shoulder and right elbow. He stated that his symptoms were aggravated by weather change, lifting objects weighing more than ten pounds, increased physical activity, active flexion, extension and rotation about the cervical spine and working with the right arm in an overhead position. The motion of the veteran's cervical spine was as follows: extension to 15 degrees; flexion to 20 degrees, right and left rotation to 20 degrees; and right and left cervical tilt to 15 degrees. He had normal shoulder shrug and no measurable circumferential atrophy of either arm. There was a one-inch decreased circumference of the right forearm compared to the left. The veteran had normal external appearance of the right shoulder with tenderness to palpation over the anterior, posterior and superior aspect of the shoulder. The range of motion of the right shoulder was as follows: forward flexion to 90 degrees; abduction to 60 degrees; extension to 20 degrees; external rotation to 45 degrees; and internal rotation to 30 degrees. The veteran had a 30 degree flexion contracture of the right elbow, with further flexion to 95 degrees. Pronation and supination were to 30 degrees. X-ray studies of the cervical spine and right shoulder showed post-traumatic osteoarthritis. The diagnoses were those of cervical spondylosis at C6-C7 with mild cervical stenosis at C4-C5, C5-C6 and C6-C7; and post-traumatic osteoarthritis of the right shoulder and elbow. The VA examinations were conducted in May 2002. At a spine examination, the veteran complained of daily aching in the neck. He stated that he had stiffness and difficulty finding a comfortable position in which to sleep. Pain was reportedly exaggerated by extending the neck backwards and turning left or right. The examination revealed a normal appearing curvature of the posterior cervical spine. His range of motion was limited, with forward flexion and backward extension to 20 degrees with pain. He had 15 degrees rotation to the right and 10 degrees rotation to the left. Lateral flexion was only to 5 degrees bilaterally. The veteran had good strength to resistance in flexion and extension, but he had weakness turning his head in both directions, left worse than right. The diagnosis was that of cervical disc and joint disease, traumatic arthritis. At an examination of his right shoulder and elbow, the veteran complained that his right shoulder and elbow had had increased frequency and intensity of pain and weakness since he was examined three years earlier. He stated that he had daily pain and difficulty finding a position to sleep or rest. An examination of the veteran's shoulder revealed some wasting of the posterior muscles over the shoulder. He had tenderness at the acromioclavicular joint on palpation. He had internal rotation to 80 degrees, then there was pain. External rotation was nearly frozen; he had 10 degrees rotation. His abduction was to 70 degrees with pain, and forward elevation was only to 50 degrees. Extension was to 25 degrees; thereafter, the maneuver was painful to 35 degrees. His rotation of the shoulder caused some discomfort, but "scant" crepitation. The range of motion with resistance was only 50 percent of normal. An examination of the elbow revealed no significant external deformity. There was minimal tenderness over the lateral epicondyle. There was 90 degrees of flexion and 30 degrees of pronation. Supination was only to 20 degrees. Against resistance the veteran rated weakness of 2/5 compared to the left elbow. It was noted that the veteran did not exercise enough and that the muscles showed spasm or fatigue. The diagnoses were those of traumatic arthritis of the right shoulder and elbow with painful limited motion and weakness. The VA outpatient treatment records were received, but they primarily addressed other disabilities. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Painful motion with the joint or periarticular pathology which produces disability warrants the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59. 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that traumatic arthritis should be rated as degenerative arthritis. Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by x-ray studies, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Schafrath v. Derwinski, 1 Vet. App. 589, 592- 93 (1991), Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). Neck arthritis The service-connected disability manifested by arthritis of the neck has been rated by the RO in this case as 40 percent disabling under the provisions of 38 C.F.R. § 4.71a including Diagnostic Code 5293. That Diagnostic Code provided for the assignment of a 40 percent evaluation for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A 60 percent rating is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. The evidence establishes that the veteran has considerable loss of motion with pain in all planes of neck motion. There was no clinical documentation of functional loss due to pain or weakness, fatigability or incoordination. Although the veteran has had some occasional dysesthesias and paresthesias in both upper extremities, the Board finds in this case that there is no clinical evidence of intervertebral disc syndrome. Indeed, although the veteran complained of increased symptomatology since his previous examination, the May 2002 examination revealed no worsening in his condition-at least not so far as to warrant a higher evaluation on the basis of functional loss due to pain. The Board finds that, given the veteran's complaints and the findings on examination, the service-connected disability picture is not shown to be consistent with that reflective of intervertebral disc syndrome with neurological findings appropriate to such disease of the cervical spine. Thus, the criteria pursuant to 38 C.F.R. § 4.71a including Diagnostic Code 5293 cannot be applied in this case. See DeLuca v Brown, 8 Vet. App. 202 (1995). The Board has considered whether the veteran is entitled to a "staged" rating for his service-connected disorder as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119. The Board finds, however, that the veteran's service-connected neck disorder is not shown to have warranted the assignment of a 60 percent rating at any time during the course of this appeal. The Board recognizes that Diagnostic Code 5286 provides a 100 percent evaluation for complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie- Strumpell type) or without other joint involvement (Bechterew type). The Board notes in this regard that there is no evidence of complete bony fixation of the spine. In the absence of such, and based on the applicable rating criteria, the Board finds that the veteran's disability picture does not meet the criteria for the assignment of a rating higher than the currently assigned 40 percent consistent with more than severe functional loss due to pain as for consideration under the provisions of Diagnostic Code 5292. As such, the Board finds that the provisions of Diagnostic Code 5293 including any of the recent changes in the rating criteria are not for application in this case. Right shoulder arthritis The standard ranges of motion of the shoulder are 180 degrees of flexion, 180 degrees of abduction, 90 degrees of internal rotation and 90 degrees of external rotation. 38 C.F.R. § 4.71, Plate I. The veteran's right shoulder arthritis is rated as 30 percent disabling under 38 C.F.R. § 4.71a including Diagnostic Code 5201. That Diagnostic Code provides a 30 percent evaluation where motion of the arm is limited to midway between the side and shoulder level. A 40 percent rating is warranted where motion of the arm is limited to 25 degrees from the side. A higher rating is also provided for ankylosis of the shoulder (scapulohumeral articulation, taking note that the scapula and the humerus move as one piece). See 38 C.F.R. § 4.71a, including Diagnostic Code 5200. Here, the evidence shows flexion, at worst, to 50 degrees and abduction, at worst, to 60 degrees. That is, motion of the right shoulder is beyond midway between the side and shoulder level, the criteria for his current 30 percent evaluation. Given, however, the objective evidence of pain, and when considering the provisions of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint, the criteria for the current 30 percent rating pursuant to 38 C.F.R. § 4.71a including Diagnostic Code 5201 have been legitimately met. See DeLuca v Brown, 8 Vet. App. 202. Regarding the criteria for a 40 percent rating, however, the Board notes that there is no evidence suggesting that the range of motion of the right shoulder is limited to 25 degrees from the side, even when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board further notes that there is no evidence of right shoulder ankylosis to warrant a 40 percent rating under Diagnostic Code 5200. Again, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected disorder as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119. The Board finds, however, that the veteran's service-connected right shoulder disorder warrants a 30 percent rating for the entire course of this appeal. Right elbow arthritis The standard ranges of motion of the forearm (elbow) are 0 degrees of extension and 145 degrees of flexion. 38 C.F.R. § 4.71, Plate I. The veteran's arthritis of the right elbow is rated as 30 percent disabling under 38 C.F.R. § 4.71a including Diagnostic Code 5206. That Diagnostic Code provides a 30 percent evaluation where flexion of the forearm is limited to 70 degrees. A rating greater than 30 percent is available where flexion of the forearm is limited to 55 degrees (40 percent) or to 45 degrees (50 percent). Here, the evidence shows flexion, at worst, to 90 degrees. The Board notes, that there is no medical evidence of fatigability or incoordination of the right elbow. As noted in the Board's previous decision, based strictly on the degrees of excursion, the veteran's disability picture does not meet the criteria for a 30 percent evaluation under Diagnostic Codes 5206-i.e., flexion limited to 70 degrees. Nonetheless, there is objective evidence of pain and weakness in the right elbow, both on motion and to palpation. Given the objective evidence of functional loss due to pain, and when considering the provisions of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint, the Board finds that the criteria for a 30 percent rating pursuant to 38 C.F.R. § 4.71a including Diagnostic Code 5206 are still met. See DeLuca v Brown, 8 Vet. App. 202. Once again, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected disorder as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119. The Board finds that the veteran's service-connected right elbow disorder warrants no greater than a 30 percent rating for the entire course of this appeal. The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2002). Amputation of the major arm between the shoulder and elbow warrants an 80 percent evaluation. 38 C.F.R. § 4.71a, including Diagnostic Code 5122 (2002). Amputation of the major arm above the insertion of the deltoid warrants a 90 percent evaluation. 38 C.F.R. § 4.71a, including Diagnostic Code 5122 (2002). The Board notes that the veteran has been awarded a 70 percent evaluation for the shell fragment wound of the right forearm with laceration of the ulnar nerve, fracture of the right ulna, arthralgia of the right wrist and amputation of the right little finger. The award was pursuant to 38 C.F.R. § 4.71a, including Diagnostic Code 5125 (2002), for the loss of use of the major hand. The veteran's service connected disabilities below the shoulder (70 percent for the loss of use of the hand and the 30 percent for arthritis of the elbow awarded in this decision) are a combined 79 percent. Thus, the amputation rule would preclude the assignment of a rating of 40 percent or higher for the service-connected right elbow disability. ORDER An initial evaluation higher than 40 percent for the service-connected arthritis of the neck is denied. An initial evaluation higher than 30 percent for the service-connected arthritis of the right shoulder is denied. An initial evaluation higher than 30 percent for the service-connected arthritis of the right elbow is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.