Citation Nr: 0810907 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-22 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the left elbow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from December 1972 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (MROC) in Wichita, Kansas. In January 2007, the Board remanded this case. FINDING OF FACT The veteran has had painful motion of the left elbow, but did not exhibit the functional equivalent of limitation of motion on flexion to 90 degrees, extension to 75 degrees, and/or exhibit pronation lost beyond the middle or last quarter of the arc with the hand not approaching full pronation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for osteoarthritis of the left elbow have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5206, 5207, 5208, 5213 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in January 2004 was sent to the claimant. Thereafter, additional VCAA notification was sent in January 2007. Cumulatively, the VCAA notification letters fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). According to Vazquez-Flores v. Peake, No. 05-0355, 2008 (U.S. Vet. App. Jan. 30, 2008), for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case, while the VCAA notice letters were not compliant with the directives in Vazquez-Flores, the Board finds that any deficiency in the VCAA notice was harmless error. In this regard, the claimant was provided pertinent information in the June 2004 SOC and the June 2005 and September 2007 SSOCs. Further, the VCAA notices along with the SOC and SSOCs provided additional information to the claimant which complies with Vazquez-Flores. Cumulatively, the veteran was informed of the necessity of providing on his/her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. In the September 2007 SSOC, the section entitled "Disability Rating," specifically cited to the impact on employment and described the types of evidence which would support the claim. The claimant was also told that disability rating range from zero to 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. The SOC and SSOCs were relevant to the specific pertinent diagnostic code. Therefore, the Board finds that the claimant has not been prejudiced by insufficient notice in this case. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected left elbow disability since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. In sum, the claimant was provided the information necessary such that any defective predecisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. As noted, the SOC, SSOCs, and the VCAA notices furnished the necessary additional notification to the claimant with regard to his claim. Thus, the Board finds even if there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A January 2007 VCAA letter also discussed the appropriate effective date to be assigned in the event of a favorable disposition of this claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, No. 05-2424 (U. S. Vet. App. Nov. 19, 2004). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. VA outpatient records dated in 2003 revealed complaints of left upper extremity pain. In March 2003, it was indicated that the veteran had degenerative disc disease at C6-7 and a disc bulge at C3-4. There was radiculopathy on the left side. A magnetic resonance imaging (MRI) of the neck confirmed degenerative disc disease. In addition, the medical records also noted a prior history of carpal tunnel surgery. A September 2003 evaluation shows flexion to 126 degrees and extension to -10 degrees. There was no crepitus. There was no swelling. The veteran had full forearm pronation, but supination lacked 20 degrees and there was mild pain at the extremes. Bilateral carpal tunnel scars on the hands was noted. The diagnosis was degenerative arthritis of the elbow. In September 2003, the claim for service connection for a left elbow disability was received. In conjunction with the claim, the veteran was afforded a VA examination in January 2004. The veteran is right-handed. It was noted that prior x-rays suggested a joint effusion and possible depression fracture of the lateral, superior aspect of the radial head as well as degenerative arthritis. At the time of the examination, the veteran reported that he had daily pain with motion. The pain was between 5 and 8 on a scale of zero to 10 with 10 being worse. He had flare-ups with use of the left upper extremity, with grasping, or lifting objects. However, there was no additional limitation of motion and no functional impairment during those periods. The veteran reported intermittent weakness, constant stiffness, swelling, and that he would occasionally drop objects. He also related that he had recurrent numbness and tingling in both hands and had a history of carpal tunnel surgery. There was no history of heat, redness, instability, or locking. He was taking pain medication. The veteran was not using any assistive devices. He was not working due to his carpal tunnel surgery. Physical examination revealed no swelling, but the left elbow was measured as being larger than the right elbow. The veteran complained of tightness on motion. He flexed to 124 degrees (with normal being 145). He exhibited -14 degrees of extension rather than the normal at -10. There was no crepitation on motion. There was tenderness laterally over the joint line and over the proximal radius. There was no edema, instability, redness, heat, or guarding. On grip strength, he had equal weakness as in the other extremity. The diagnosis was degenerative osteoarthritis of the left elbow, post-traumatic. In a March 2004 rating decision, service connection was granted for osteoarthritis of the left elbow. A 10 percent rating was assigned under DC 5010, effective September 2003, the date of claim. The veteran appealed the assigned rating. Thereafter, private medical evidence was received. In February 2002, W.A.B., M.D. stated that he had treated the veteran for significant cervical disc syndrome which caused pain in his neck, upper back, and arms. No improvement was expected. A private physician report was received which was dated in July 2002. It was noted that the veteran had significant abnormalities in his cervical spine and pain in his arms, which this examiner felt were neuropathic rather than arthritic. In a June 2004 rating decision, service connection for a cervical spine disorder was denied. Thereafter, VA medical records dated in 2004 also documented cervical spondylosis. In addition, the veteran received epidural steroid injections for his neck-related pain. In May 2004, the veteran complained of left elbow pain. There was no deformity or swelling of the arm. He had good range of extension with supination and pronation. Hand functions were not good. There was no swelling at the elbow. There was no angulatory deformity. The diagnosis was traumatic arthritis of the left elbow. No surgical treatment was indicated. In July 2004, the veteran continued to complain of severe neck pain radiating into his left arm with severe pain localized along the medial aspect of the left elbow with some numbing and tingling in his left hand. The diagnosis was cervical spondylosis. In August 2004, the veteran underwent an MRI which revealed anterior cervical fusion at C6-7; dephasing artifacts from metal plate; spinal stenosis at C4-5 due to bulging annulus and posterior osteophytes resulting in effacement and deformity of the ventral thecal sac; and foraminal narrowing at C4-5, right greater than left, and probable foraminal narrowing at C6-7 on the left side. It was noted that the veteran currently had cervical radiculopathy. In February 2005, the veteran underwent an anterior cervical decompression of level C4-5 and C5-6 using the back from the iliac crest for autogenous fusion. In March 2005, it was noted that the veteran had fallen twice and landed on his left elbow. X-rays revealed a deformed appearance of the radial head of the left elbow, likely an old traumatic deformity. There were hypertrophic changes of the radial head and joint effusion. Thereafter, the veteran submitted private medical reports from P.A., M.D., dated in July and August 2005. On an August 2005 medical report, the veteran wrote on the report that he planned to have surgery on his left elbow. A July 2005 EMG showed that the veteran has ulnar neuropathy of the left upper extremity. A July 2005 private medical report noted the same. In May 2005, an EMG and nerve conduction studies were performed. The veteran exhibited weakness in his left hand. His sensory examination was normal and he had normal reflexes. Bilateral ulnar studies showed all normal findings, but for the slowing of the conduction velocities across the elbows. Bilateral median motor studies were normal. The impression was evidence of moderate to severe left ulnar neuropathy at the elbow and no definite evidence of peripheral neuropathy or radiculopathy. In August 2005 and October 2005, the veteran underwent a cervical myelogram and computerized tomography which revealed abnormalities in various areas of the cervical spine. The impression was broad-based central disc protrusion at C2-3 causing effacement of thecal sac; central osteophytic spur at C3-4 with effacement of thecal sac and mild cord impingement; broad-based disc osteophyte complex with left paracentral osteophytic spurring with mild cord impingement; mild bilateral foraminal narrowing at C4-5 and mild left foraminal narrowing at C3-4. Thereafter, the records reflect that the veteran underwent surgery on his left elbow. He had an ulnar nerve transposition. The veteran indicated that prior to the surgery, he left like his left arm was going dead. In January 2006, the veteran underwent neck surgery. The veteran related that the surgical procedures helped his left elbow (but not the neck), but by May 2006, he related that his sensation was not entirely normal. X-rays showed degenerative arthritis and some deformity in the radial head with radial head degenerative arthritis. The veteran reported left elbow swelling. On examination, the left elbow exhibited full range of extension and flexion. The veteran also had good range of motion on supination and pronation without particular pain. No crepitation was noted. The surgical incision was well healed. There was no redness or drainage. There was some localized numbness near the surgical incision, but not down the arm or into the hand. The scar near the ulnar notch area was still mildly tender. The diagnosis was degenerative arthritis of the left elbow, but it did not need surgical treatment. The veteran continued to complain of left elbow pain. In addition, swelling was noted in January 2007. In February 2007, the veteran was afforded an orthopedic consultation. At that time, the prior surgery for left ulnar nerve entrapment with nerve release at the elbow was noted. The surgery relieved the symptoms of decreased sensation down the left hand and numbness of the hand. Examination of the left elbow and the hand revealed tenderness of the ulnar nerve at the elbow in the notch. Surgical incision in this area was well-healed. The veteran had full range of motion on extension and flexion. The examiner believed that there was ulnar nerve subluxation during flexion. The hand had no deformity. There was no muscle atrophy. Sensation was within normal limits throughout the hand and all fingers. The diagnosis was left ulnar nerve pain with probable subluxation. In June 2007, the veteran was afforded a VA joints examination. The claims file was reviewed and the pertinent history discussed. The veteran reported that he had constant pain with daily flare-ups which ranged between 3 and 7 on a scale of zero to 10 with 10 being worse. He relieved symptoms with cessation of activity, rest, application of heat or ice, and taking pain medication. He reported having no additional loss of motion during a flare-up, but he had reduced function since he could not use his elbow at that time for lifting due to pain. He had weakness, stiffness, swelling, fatigability, and reduced endurance. He denied heat, redness, instability, or locking. He did not use any assistive devices or brace. He had not undergone any orthopedic surgery on his elbow joint, but had undergone an ulnar nerve transposition surgery. When asked to comment on the effects of the veteran's condition on his usual occupation and daily activities, it was noted that the veteran had increased pain on repetitive use and flexion of the elbow for lifting. He was not able to use the elbow for any repetitive activities requiring repeated flexion or extension of the elbow. He was not currently employed due to his carpal tunnel condition. Physical examination revealed that the left elbow was normal in appearance. There was a well healed surgical scar over the ulnar groove medial to the olecran. The veteran had pain on the examination and he had tenderness over the olecran. He had increased pain on repeated use and multiple repetitions. There was no additional loss of motion, fatigue, weakness, or incoordination on multiple repetitions. He did have moderate functional loss due to pain. He had pain throughout flexion, zero to 140 degrees. There was no objective evidence of painful edema, effusion, instability, weakness, redness, heat, abnormal movement, or guarding of movement. There was no ankylosis. Range of motion was from zero to 140 degrees (with zero to 145 being normal). The veteran lacked 8 degrees of extension which was noted to be normal. Forearm supination and pronation were full. The diagnosis was degenerative osteoarthritis of the left elbow, post-traumatic. In June 2007, the veteran was also afforded a peripheral nerves examination. The claims file was reviewed and the pertinent history discussed. The veteran indicated that he had neurological symptoms which were aggravated by prolonged bending of the elbow, pressure of repeated resting of the elbow on any surface, and repeated use of the hand and elbow such as on driving, opening jars, grasping and twisting, grasping and twisting objects, and he was unable to fish. During flare-ups, the veteran related that his pain was between 3 and 7 on a scale from zero to 10 with 10 being worse. In addition, he had additional pain and weakness in his hand and could not use it until it returned to baseline. The veteran was taking pain medication. Physical examination revealed a well-haled surgical scar over the ulnar notch of the medial elbow. There was no evidence of atrophy. Gross motor function and strength on flexion and extension was normal. Tinel's sign at the elbow was negative. Sensation in the left upper extremity was intact. Grip strengths were equally poor in both hands. There was no paralysis, muscle wasting, or neuritis. Fine motor control was intact. X-rays revealed post-traumatic changes, deformity, and degenerative changes over the left elbow. EMG and nerve conduction studies revealed no evidence of recurrence of ulnar neuropathy at the elbow, left side. Improvement was seen since the last January 2005 study in ulnar nerve function. There was no evidence of carpal tunnel syndrome on the left side. The diagnosis was post-traumatic osteoarthritis of the left elbow without ankylosis. In addition, the veteran had cervical compression neuropathy, C6-7 nerve root to include ulnar nerve, of the left upper extremity (this was actually a bilateral upper extremity condition). With regard to the veteran's service-connected left elbow disability, the examiner specified that the veteran had degenerative osteoarthritis, post-traumatic, of the left elbow. He had chronic pain, pain with use, normal motion with use, and reduced endurance with repetitive use due to pain. There was mild to moderate impact on function with repetitive use. The examiner further stated that based on review of the records and the current evaluation and examination, it was the examiner's opinion that the current neurological condition of the left elbow was less likely as not caused by or a result of injury while in service. It was most likely due to the unrelated severe cervical spine osteoarthritis and disc disease, status post diskectomy and fusion times two, also related to more recent surgery for soft tissue release of the nerve at the elbow. The examiner indicated that his opinion was based on the fact that there was no documentation of cervical or ulnar compressive symptoms in the service or immediately after service, none recorded until November 2002, almost 25 years later when on neurosurgical evaluation the veteran reported having pain which radiated to the bilateral upper extremities, pain, paresthesias, numbness, and weakness of grips bilaterally for the past four years. The examiner stated that this indicated that his neurological condition had its onset in 1998 and according to the neurosurgeon, was bilateral and related to the cervical spine condition. Also, the examiner indicated that previous MRI studies of the cervical spine indicated the severity of the degenerative disc disease and foraminal narrowing with nerve root compression involving multiple levels to include the C6-7 nerve roots on the left. Further, the past MRI of the left elbow indicated that the ulnar nerve was well defined and normal. The injury in 1973 involved the proximal radial head on the outside/lateral aspect of the elbow, not on the medial side where the ulnar nerve was positioned. Moreover, if the ulnar nerve were injured at the time of the inservice injury, the examiner would have expected to see documentation of onset and neurologic symptoms shortly after the injury, at least within the next year. Certainly, the onset of the claimed ulnar neuropathy from this injury would not have appeared 25 years later; rather, it was most likely caused by and due to his severe cervical spine condition. The current EMG and nerve conduction studies showed no ulnar neuropathy on the left. Finally, the examiner indicated that there were no degenerative changes reported in the area of the medial elbow in the area of the ulnar nerve. Therefore, relating to the injury of the left elbow, it was not likely that there was any neurological involvement related to that inservice injury. The Board finds that this VA neurological examiner's opinion is both competent and probative evidence. The examiner, as a medical professional, is competent to offer a medical opinion. That medical opinion is probative evidence as the examiner specifically and very clearly described the reasons why the veteran's service-connected left elbow disability did not include any neurological deficit. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. In this case, the veteran believes that all of his left elbow symptoms are related to his service-connected left elbow disability, to include any ulnar or other neurological impairment. However, such a medical assessment is not simple in nature. See Jandreau. While the veteran is credible in his belief and descriptions of his symptoms, he is not competent to provide more than simple medical observations. Thus, the veteran's lay assertions regarding the etiology of any current neurological impairment are not competent or sufficient. Conversely, the Board attaches the most significant probative value to the VA opinion as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) As noted, the VA examiner explained why any current neurological impairment is etiologically related to the veteran's nonservice-connected cervical spine disabilities and is not etiologically related to his service-connected left elbow disability. Accordingly, in rating the service-connected left elbow disability, the neurological manifestation may not be considered. The Ratings Schedule provides different ratings for impairment of the major or minor arm. The veteran is right handed, and, therefore, the left elbow disability affects his minor arm. Under Diagnostic Code 5212 (impairment of the radius), a rating of 10 percent is warranted where there is malunion of the radius with bad alignment. A rating of 20 percent is warranted where there is nonunion of the radius in the upper half. A rating of 30 percent (20 percent if minor) is warranted where there is nonunion in the lower half, with false movement without loss of bone substance or deformity. A rating of 40 percent (30 percent if minor) is warranted where there is nonunion in the lower half, with false movement with loss of bone substance (1 inch, 2.5 centimeters or more) and marked deformity. In the instant case, there is no objective finding of any nonunion or malunion of the left radius. The veteran originally fractured the radial head, but there are no residuals indicative of nonunion or malunion. X-rays only showed degenerative arthritis and some deformity in the radial head with radial head degenerative arthritis. Consequently, the criteria for a higher rating under DC 5212 are not met. The Rating Schedule provides ratings for ankylosis (DC 5205), flail joint fracture with marked deformity of the radius (DC 5209), nonunion of the radius and ulna (DC 5210), and impairment of the ulna (DC 5211). The veteran has exhibited arthritis in the area of the radial head, as noted, but not a flail joint fracture, nonunion, or impairment of the ulna. None of the aforementioned conditions are shown on the record; hence a higher rating under any of these DCs is not warranted. Traumatic arthritis is ratable as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated in accordance with 38 C.F.R. § 4.71a, DC 5003, which provides that when arthritis is established by X-ray findings it will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. Where the limitation of motion of the specific joint involved is noncompensable under the appropriate DCs, a 10 percent rating 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 5003. Normal extension and flexion of the elbow is from 0 to 145 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5206 governs limitation of forearm flexion. Limitation of flexion of the forearm is rated 0 percent when limited to 110 degrees, 10 percent when limited to 100 degrees, 20 percent when limited to 90 and 70 degrees, 30 percent when limited to 55 degrees, and 40 percent when limited to 45 degrees. 38 C.F.R. § 4.71, DC 5206. In this case, at worse, flexion was limited to 124 degrees which well exceeds the limitation necessary for a 20 percent rating. DC 5207 contemplates limitation of forearm extension. Limitation of extension of the forearm is rated 10 percent when limited to 45 and 60 degrees, 20 percent when limited to 75 and 90 degrees, 30 percent when limited to 100 degrees, and 40 percent when limited to 110 degrees. In this case, at worse, extension was -14 degrees; normal was noted to be -10. Extension greatly exceeded 45 degrees. DC 5208 allows for a rating when limitation of motion is flexion to 100 degrees and extension to 45 degrees. That has not been the case here. Normal pronation is 0 to 80 degrees and supination of the elbow is from 0 to 85 degrees. See 38 C.F.R. § 4.71, Plate I. Impairment of supination and pronation is rated under DC 5213. A 10 percent rating is warranted if there is loss of supination and pronation, limitation of pronation or limitation of supination of 30 degrees or less. When pronation is lost beyond the middle or last quarter of the arc and the hand does not approach full pronation a 20 percent evaluation is assigned (major and minor sides). Where there is loss of supination and pronation (bone fusion) and the hand is fixed in full pronation or near the middle of the arc or moderate pronation, a 20 percent evaluation is assigned (minor). When the hand is fixed in full supination, a 20 percent rating is warranted and when the hand is fixed in supination or hyperpronation, a 30 percent evaluation is assigned (minor). Throughout the appeal, the veteran has generally had normal supination and pronation. There was an instance when he lacked 20 degrees of full supination; however, this limitation still exceeds the requirements for a higher rating. The veteran did not have pronation lost beyond the middle or last quarter of the arc with the hand not approaching full pronation. Pursuant to DeLuca, the Board must consider whether the veteran has additional disability as a result of functional loss due to pain and weakness, and weakened movement, excess fatigability and incoordination. He does not have additional loss of motion, but the veteran does have pain and weakness as well as functional loss. Assuming that these factors are present at least in part due to the service-connected arthritis, the Board finds that the directives of DeLuca are for application. However, that being noted, the Board does not find that a higher rating is warranted on that basis. Objectively, the veteran is able to move his elbow in all directions beyond the criteria indicated for even noncompensable ratings. On examination, his motor strength and function are essentially normal. As noted, his deficits with regard to his left hand are neurological in nature and not due to his service-connected arthritis. The Board recognizes that when his left elbow flares up, he has difficulty using his left elbow. His functional loss was indicated by a medical professional to be moderate due to the pain and other DeLuca factors. However, the Board finds that moderate impairment is contemplated within the 10 percent rating. The majority of the veteran's complaints have been shown to be due to ulnar nerve issues and not the arthritis. Overall, his objective limitations due to his arthritis were identified as noncompensable loss of motion and pain. DC 5010 provided for a 10 percent rating. This is supported by 38 C.F.R. § 4.59 as well as the directives of DeLuca. The veteran has consistently been able to move his elbow considerably more than is provided for a compensable rating under any of the pertinent DCs. While the veteran has had painful motion of the left elbow, he has not exhibited the functional equivalent of limitation of motion on flexion to 90 degrees, extension to 75 degrees, and/or exhibited pronation lost beyond the middle or last quarter of the arc with the hand not approaching full pronation Thus, a 10 percent rating adequately represents the no more than moderate impairment the veteran experiences during flare-ups. Accordingly, no more than a 10 percent rating is warranted during the appeal period. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent. ORDER Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the left elbow is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs