Citation Nr: 0811282 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-15 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for resection of the distal right ulna with arthritis, currently rated at 20 percent disabling. 2. Evaluation of residuals of chip fracture of the right elbow with arthritis and limited motion, rated at 0 percent disabling from April 24,1997 to May 30, 1997. 3. Evaluation of residuals of chip fracture of the right elbow with arthritis and limited motion, rated at 10 percent disabling from May 30, 1997 to July 12, 2007. 4. Evaluation of residuals of chip fracture of the right elbow with arthritis and limited motion, rated at 20 percent disabling from July 12, 2007. 5. Entitlement to a combined service connected disability evaluation in excess of 40 and 50 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from July 1958 to July 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 1997 rating decision rendered by the Oakland, California Regional Office (RO) of the Department of Veteran Affairs (VA), which granted service connection for a chip fracture of the right elbow and denied an increased rating for residuals of a resection of the right ulna with arthritis. The veteran also appealed an October 2003 rating decision that established a combined 40 percent service- connected disability rating. The Board notes that the veteran is invited to file a claim for compensation for finger disabilities. FINDINGS OF FACT 1. Resection of the distal right ulna with arthritis is manifested by flare-ups of pain, and nonunion of olecranon fracture and evidence of osteoarthritis of the ulnar humeral joint. 2. From April 24, 1997 to May 30, 1997, residuals of chip fracture of the right elbow with arthritis and limited motion was manifested by a range of motion of 50 degrees of pronation and 20 degrees of supination. 3. From May 30, 1997 to July 12, 2007, residuals of chip fracture of the right elbow with arthritis and limited motion was manifested by a range of motion of 50 degrees of pronation and 20 degrees of supination. 4. On and after July 12, 2007, residuals of chip fracture of the right elbow with arthritis and limited motion is manifested by a range of motion of the forearm with 60 degrees of pronation and 45 degrees of supination. 5. The veteran's service-connected disabilities total a 40 and 50 percent rating upon application of the Combined Rating Table. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent disabling for resection of the distal right ulna with arthritis (dominant) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a Diagnostic Code 5211. 2. From April 24, 1997 to May 30, 1997, residuals of chip fracture of the right elbow with arthritis and limited motion was 20 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2007). 3. From May 30, 1997 to July 12, 2007, residuals of chip fracture of the right elbow with arthritis and limited motion was 20 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2007). 4. The criteria for a rating in excess of 20 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion (dominant) on and after July 12, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2007). 5. The RO properly calculated the combined schedular rating for all service-connected disabilities and the veteran is not entitled to a higher combined rating by operation of law. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.25, 4.26 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under VCAA by letters dated in June 2002, May 2003, July 2004 and May 2007. While the letters were sent to the veteran after the initial adjudication of this case, the Board finds that the veteran has been given sufficient notice and has not prejudiced thereby because notice was given prior to the readjudication of the case. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that the veteran has been given sufficient notice in compliance with the recent case Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), which held that a notice letter must inform the veteran that, to substantiate a claim, he or she must provide, or ask VA 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. The Court also held that where the claimant is rated under a diagnostic code that 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, the notice letter must provide at least general notice of that requirement. The Court further found that the notice must 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. Here, the veteran was provided with notification regarding the rating criteria in a Statement of the Case (SOC) prior to the readjudication of the case. Also, the veteran was issued a letter in May 2007 which informed him that the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and symptoms on employment are considered in determining disability ratings. The letter also provided examples of the type of evidence that may be submitted. Although complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of a SSOC. Mayfield, supra, at 1328. Thus, VA's duty to notify in this case has been satisfied and there is no prejudice to the veteran as he has been provided a meaningful opportunity to participate. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In connection with the current appeal, the veteran has been afforded appropriate VA examinations and available service records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Findings The veteran served on active duty from July 1958 to July 1961. During service the veteran fell from a cliff and fractured his right ulna and radius. A July 1996 VA compensation and pension examination showed a right hand grip about 80% of the left handed grips. The right wrist was capable of dorsiflexion to 40 degrees and palmarflexion was 50 degrees. Ulna deviation of the right wrist was limited to 20 degrees and radial deviation was limited to about 10 degrees. Flexion was to 130 degrees. Examination further showed that the right elbow could only extend to 160 degrees. The veteran was diagnosed with a history of extensive but remote injury to both arms and wrists with evidence of residual traumatic arthritis and degenerative joint disease. In a September 1997 VA compensation and pension examination it was noted that the veteran's right elbow dislocation was reduced and the various fractures repaired. Partial ankylosis of the right wrist and elbow was noted. Examination of the right forearm and wrist showed that the right forearm had no palpable tenderness. The right wrist revealed 50 degrees of flexion, 50 degrees of dorsiflexion, and 30 degrees of radial and ulnar deviation. The veteran's third, fourth, and fifth fingers, the proximal interphalangeal joint was fixed at 30 degrees of flexion and would not totally straighten. The strength in the hands was normal. The veteran was diagnosed with right humeral fracture with residual pain, right ulnar dislocation with chronic ankylosis, right forearm status post radial and ulnar fracture with chronic pain, right wrist ankylosis secondary to original injury and contraction of fingers three, four and five proximal interphalangeal joint. In a supplement to the September 1997 examination report, impressions of advanced degenerative change at the right elbow joint with sclerosis and narrowing at the articulation of the radius with the capitulum, old distal right radius and ulna fracture with surrounding callus formation and old ulnar styloid fracture with very well-corticated loose bodies in the expected position of the ulnar styloid process were given. In a May 1999 VA compensation and pension examination conducted to clarify the results of the September 1997 examination, the examination showed the veteran's right elbow was moderately ankylosed and that he had 50 degrees of flexion in its fully extended position and 120 degrees of flexion maximum. His right elbow exhibited 50 degrees of pronation and 20 degrees of supination, and his right forearm had no palpable tenderness. The veteran was diagnosed with right humeral fracture with some residual discomfort, right ulnar dislocation with chronic ankylosis of the right elbow, right wrist ankylosis secondary to original injury and contractures of fingers, 3, 4, and 5 proximal interphalangeal joints. In a June 2003 VA compensation and pension examination, the veteran reported increasing pain and stiffness. Examination showed equal active and passive motion. He had 45 degrees flexion contracture in his right elbow, so his range of motion was from 45 degrees to 130 degrees of flexion. He had pain with the extension motion, but no pain with the flexion motion at the end point. He had 20 degrees of supination and painful pushing to the extreme. The veteran had 70 degrees of pronation of his forearm also painful at the end point. He had 60 degrees of wrist extension and 40 degrees of wrist flexion, 35 degrees of ulnar deviation and 20 degrees of radial deviation. There was some tenderness about the elbow at the level of the joint line, both medially and laterally, and also tenderness about his wrist at the level of the joint. It was noted that he had good extension and flexion strength in his elbow. His wrist was a little weaker in flexion and extension, and there was no fixed ankylosis. Further examination showed forearm deformity at the wrist joint with advance osteoarthritis of the radial carpal joint. There was an absence of the distal ulna due to a prior resection and advanced arthritic changes in the distal radial ulnar joint, as well as in the radial carpal joint. His distal radius was in a fixed malunion type position with dorsal angulation of about 15 degrees. The elbow showed advance osteoarthritis with large osteophytes and lack of joint space. Good extension strength was noted. An assessment of advanced osteoarthritis of the wrist with a fixed deformity, no distal ulna and advanced osteoarthritis of the distal radial ulnar joint was given. The veteran was afforded another VA compensation and pension in June 2004. It was noted that the veteran experienced chronic pain and that he has never had full range of motion of his elbow. This examination showed that the veteran's right elbow was severely deformed. He had a range of motion between 45 and 120 degrees and full pronation. He had zero degrees of supination. The hand strength was somewhat diminished but not affected by the elbow. The Deluca signs were excursion 2 to 3, speed 3, strength 3, coordination 1 to 2 and endurance 2. There was no pain associated with the movements and the veteran was not limited because of pain in the elbow. However, he was limited because of the lack of range of motion which interferes with his coordination. The right elbow showed extensive hypertrophic bone reaction involving all bones composing the elbow joint. An impression of excessive hypertrophic bone formation involving all bones of the elbow joint, probably the result of old remote injury was given. A diagnosis of status post severe dislocation of the right elbow with bone chip, accompanying fractures of the radius and ulna with secondary arthritis, severe was also given. In a July 2007 VA compensation and pension examination it was noted that range of motion of the right elbow was 60 to 130 degrees of flexion with a solid endpoint. Three repetitions of flexion extension of the elbow did not result in any decrease in range of motion due to the Deluca factors. The range of motion of the forearm was 60 degrees of pronation and 45 degrees of supination. Three repetitions of rotation of the forearm did not result in any decrease in range of motion due to the Deluca factors. The endpoint range of motion was solid and the right wrist had 30 degrees of flexion and 80 degrees of extension. There was no decrease of range of motion due to the Deluca factors and no pain throughout range of motion at the wrist, elbow, or forearm. The right elbow had gross deformity with a prominent lateral humeral condyle. There was no tenderness to palpation about the elbow or the wrist and no tenderness to palpation of the metacarpals of the hand. It was noted that with the wrist in extended position, the veteran was unable to fully extend his third, fourth and fifth digits. It was also noted that the veteran has flare-ups of pain. The examination further showed no instability of the elbow joint, wrist joint or any of the bony joints of the hand. There was 5/5 strength in the biceps, triceps, wrist extensors, flexors and hand intrinsics. Plane radiographs demonstrated a healed fourth metacarpal fracture with ulnar deviation of the head of the metacarpal and significant shortening. There was severe osteoarthritis of the radial carpal joint with narrowing and collapse. Radiograph of the right elbow showed a nonunion of prior olecranon fracture and evidence of osteoarthritis of the ulnar humeral joint, which was moderate to severe in nature. The veteran was diagnosed with right elbow olecranon nonunion and osteoarthritis, right wrist, posttraumatic osteoarthritis, right fourth metacarpal fracture with healing and shortening. The examiner opined that there was a relationship between the veteran's wrist injury and the decreased tendon excursion of the third, fourth, and fifth digits. However, he did not think there was any relationship between the disability in the third, fourth, and fifth digits attributable to the elbow specifically. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001), see also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2007). As will be explained below, the Board concludes that a uniform evaluation is warranted for the issues at hand. Under Diagnostic Code 5211 (impairment of the ulna), a rating of 10 percent is warranted where there is malunion of the ulna with bad alignment. A rating of 20 percent is warranted where there is nonunion of the ulna in the lower half. A rating of 30 percent (20 percent if minor) is warranted where there is nonunion in the upper 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 upper half, with false movement, with loss of bone substance (1 inch, 2.5 cms) and marked deformity. Under Diagnostic Code 5213, limitation of supination of either forearm to 30 degrees or less warrants a 10 percent rating. Limitation of pronation of the forearm of the major upper extremity warrants a 20 percent evaluation if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation. A 30 percent evaluation requires that motion be lost beyond the middle of the arc. 38 C.F.R. § 4.71a, DC 5213. Normal elbow flexion is from 0 to 145 degrees; normal forearm pronation is from 0 to 80 degrees; and normal forearm supination is from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I (2007). DC 5213 also provides for a 20 percent rating for bone fusion with loss of supination and pronation of the forearm of the major upper extremity if the hand is fixed near the middle of the arc or in moderate pronation; a 30 percent rating requires that the had be fixed in full pronation. A 40 percent rating requires that the hand be fixed in supination or hyper pronation. 38 C.F.R. § 4.71a, DC 5213. In addition, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996); See also C.F.R. § 4.71a, DC 5205-5207. The Court has held that a veteran 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). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Calculating the proper combined evaluation requires the use of 38 C.F.R. § 4.25 and the Combined Ratings Table found therein (it is noted that the veteran received a copy of the ratings table in the statement of the case mailed to him in June 2004). Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in Table I opposite 60 percent and under 30 percent. To use Table I, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability and then combined with use of Table I. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Thus, with a 50 percent disability and a 30 percent disability, the combined value will be found to be 65 percent, but the 65 percent must be converted to 70 percent to represent the final degree of disability. Similarly, with a disability of 40 percent, and another disability of 20 percent, the combined value is found to be 52 percent, but the 52 percent must be converted to the nearest degree divisible by 10, which is 50 percent. If there are more than two disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities. The combined value, exactly as found in Table I, will be combined with the degree of the third disability (in order of severity). The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5's upward. Thus if there are three disabilities ratable at 60 percent, 40 percent, and 20 percent, respectively, the combined value for the first two will be found opposite 60 and under 40 and is 76 percent. This 76 will be combined with 20 and the combined value for the three is 81 percent. This combined value will be converted to the nearest degree divisible by 10 which is 80 percent. The same procedure will be employed when there are four or more disabilities. See 38 C.F.R. § 4.25, Table I. Analysis Entitlement to an increased rating for resection of the distal right ulna with arthritis (dominant) currently rated at 20 percent disabling. The veteran seeks a disability rating in excess of 20 percent disabling for resection of the distal right ulna with arthritis (dominant). As will be explained below, the preponderance of the evidence is against a higher rating. A rating higher than 20 percent disabling for the veteran's resection of the distal right ulna with arthritis (dominant) is not warranted. The July 2007 VA compensation and pension examination showed no tenderness to palpation about the elbow or the wrist and no tenderness to palpation of the metacarpals of the hand. When the wrist was in extended position, the veteran was unable to fully extend his third, fourth and fifth digits. Plane radiographs demonstrated a healed fourth metacarpal fracture with ulnar deviation of the head of the metacarpal and significant shortening. There was severe osteoarthritis of the radial carpal joint with narrowing and collapse. Radiograph of the right elbow showed a nonunion of prior olecranon fracture and evidence of osteoarthritis of the ulnar humeral joint, which was moderate to severe in nature. Flare-ups were noted and there was no instability of the elbow joint, wrist joint or any of the bony joints of the hand. This evidence is relatively consistent with the prior examinations. The June 2004 examination showed severe right elbow deformity and extensive hypertrophic bone reaction involving all bones composing the elbow joint. In the June 2003 examination the veteran reported increasing pain and stiffness and tenderness about the elbow at the level of the joint line, both medially and laterally, and tenderness about his wrist at the level of the joint were noted. There was forearm deformity at the wrist joint with advance osteoarthritis of the radial carpal joint. There was also an absence of the distal ulna due to a prior resection and advanced arthritic changes in the distal radial ulnar joint, as well as in the radial carpal joint. His distal radius was in a fixed malunion type position with dorsal angulation of about 15 degrees. The elbow showed advance osteoarthritis with large osteophytes and lack of joint space. The examination also showed a limited range of motion of 35 degrees of ulnar deviation and 20 degrees of radial deviation. The September 1997 examination showed the veteran had 30 degrees of radial and ulnar deviation and the July 1996 examination showed ulna deviation of the right wrist was limited to 20 degrees and radial deviation was limited to about 10 degrees. These findings justify no more than a 20 percent disability rating. Accordingly, a rating higher than 20 percent for the veteran's resection of the distal right ulna with arthritis (dominant) is not warranted at this time. Given that there is no showing of nonunion in the upper half, with false movement, without loss of bone substance or deformity, or nonunion in the upper half, with false movement, with loss of bone substance (1 inch, 2.5 cms) and marked deformity, a rating higher than 20 percent disabling is not warranted. The Board has considered the veteran's lay statements. However, even his lay statements do not support an evaluation in excess of 20 percent. Regardless, far more probative is the result of the 2007 VA examination that was prepared by a skilled examiner and contained objective testing and a factual foundation for the opinions reached. The Board has also considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Evaluation of residuals of chip fracture of the right elbow with arthritis and limited motion (dominant). Initially, the Board notes that the veteran filed this claim for benefits May 30, 1997. However, when he was granted service connection for residuals of chip fracture of the right elbow with arthritis and limited motion, he was given an effective date of April 24, 1997 which was when his other claims for benefits were filed, not the current claim. Because the veteran was issued an earlier effective date for this claim and there has been no action to change the effective date to reflect the actual date this claim was filed, the Board will continue to evaluate this claim based on the effective date of April 24, 1997. The veteran seeks an evaluation in excess of his staged rating of 0, 10, and 20 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion. The Board first must determine if a rating in excess of 0 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion is warranted for the period of April 24, 1997 to May 30, 1997. The Board must also determine if a rating in excess of 10 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion is warranted for the period of May 30, 1997 to July 12, 2007. The AOJ has assigned a staged rating. The Board does not agree. In the September 1997 examination, it was noted that the veteran's right elbow dislocation was reduced and the various fractures repaired. Partial ankylosis of the right wrist and elbow was also noted. An impression of advanced degenerative change at the right elbow joint with sclerosis and narrowing at the articulation of the radius with the capitulum was given. The May 1999 examination showed that the veteran's right elbow was moderately ankylosed and that he had 50 degrees of flexion in its fully extended position and 120 degrees of flexion maximum. His right elbow exhibited 50 degrees of pronation and 20 degrees of supination, and his right forearm had no palpable tenderness. Based upon the May 1999 examination and the noted typographical errors in the September 1997 regarding the elbow, the Board is unable to conclude that the veteran was only 0 percent disabled from April 24, 1997 to May 30, 1997 and only 10 percent disabled from May 30, 1997 to July 12, 2007. A 20 percent rating is assigned when motion is lost beyond the last quarter of the arc and the hand does not approach full pronation. Although the June 2003 examination showed 70 degrees of pronation and the June 2004 examination showed full pronation, the May 1999 examination showed that the veteran had 50 degrees of pronation. Since it has been shown that motion was lost beyond the last quarter of the arc during this appeal, the Board finds that a uniform evaluation of 20 percent disabling is warranted. The Board must now decide if the evidence supports an evaluation higher than 20 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion. After a careful review of the evidence the Board finds that an evaluation in excess of 20 percent disabling is not warranted. A 30 percent evaluation is warranted if the veteran can show that motion is lost beyond the middle of the arc or that the hand is fixed in full pronation. A 40 percent rating requires that the hand be fixed in supination or hyper pronation. 38 C.F.R. § 4.71a, DC 5213. The veteran's July 2007 compensation and pension examination showed that the range of motion of the right elbow was 60 to 130 degrees of flexion with a solid endpoint. It was noted that three repetitions of the flexion extension of the elbow did not result in any decrease in range of motion due to the Deluca factors. The range of motion of the forearm had 60 degrees of pronation and 45 degrees of supination. There was no pain throughout range of motion at the elbow and no tenderness to palpation about the elbow. This evidence is relatively consistent with the prior examinations. The June 2004 examination showed that the veteran's right elbow was severely deformed and that he had a range of motion between 45 and 120 degrees. He had full pronation and zero degrees of supination. The June 2003 examination showed 45 degrees flexion contracture in his right elbow, so his range of motion was from 45 degrees to 130 degrees of flexion and 20 degrees of supination. The examination also showed the veteran had 70 degrees of pronation of his forearm. There was some tenderness about the elbow at the level of the joint line, both medially and laterally. There was no fixed ankylosis. The May 1999 examination showed that the veteran's right elbow exhibited 50 degrees of pronation and 20 degrees of supination, and his right forearm had no palpable tenderness. These findings justify no more than a 20 percent evaluation. Because the evidence does not show that motion is lost beyond the middle of the arc or that the hand is fixed in full pronation, or that the hand is fixed in supination or hyper pronation, an evaluation in excess of 20 percent is not warranted at any time during the pendency of this claim. See Hart, supra. The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1) (2007). However, the Board notes that the record reflects that the veteran has not required frequent periods of hospitalization for this disability and that the manifestations of the disability are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by See Schafrath, supra. In this case, the Board finds no other provision upon which to assign a higher rating. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Entitlement to a combined service connected disability evaluation in excess of 40 and 50 percent. The veteran asserts that he is entitled to a higher combined rating award for all his service connected disabilities. The Board finds against this claim. In applying the Combined Ratings Table of 38 C.F.R. § 4.25 to the veteran's service-connected disability ratings of 20 percent (residuals of resection , distal ulna with arthritis), 20 percent (residual of chip fracture, right elbow with arthritis and limitation of motion), 10 percent (residuals of fracture, right radius) and 10 percent (hypertension), a combined evaluation of 48 is derived. Put another way, in using the ratings table for these separately evaluated disabilities, the following equations are illustrative: 20 percent (residuals of resection , distal ulna with arthritis) combined with 20 percent (residual of chip fracture, right elbow with arthritis and limitation of motion)= 36 combined value; then, 36 combined with 10 (residuals of fracture, right radius) = 42 combined value; then, 42 combined with 10 (hypertension) = 48 combined value (or 50 percent, rounded up). The Board certainly appreciates the veteran's expressed confusion over the calculation of his combined schedular rating. However, as shown, the computation of the combined schedular rating does not operate by way of simply adding all separate disability percentages. There is an important distinction between adding percentages together and combining percentages together using the ratings table. The ratings table is employed to obtain an evaluation that reflects the "efficiency" of the veteran as affected first by the most disabling condition followed by less disabling conditions in descending order. As shown, the RO's calculation of the veteran's combined schedular rating for all service-connected disabilities was proper, and he is not entitled to a higher combined schedular rating by operation of law. Where the law and not the evidence is dispositive, the claim is denied because of lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An increased rating for resection of the distal right ulna with arthritis (dominant), currently rated at 20 percent disabling is denied. A rating of 20 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion from April 24,1997 to May 30, 1997 is granted subject to the controlling regulations applicable to the payment of monetary benefits. A rating of 20 percent disabling for residuals of chip fracture of the right elbow with arthritis and limited motion from May 30, 1997 to July 12, 2007 is granted subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 20 percent disabling on and after July 12, 2007 for residuals of chip fracture of the right elbow with arthritis and limited motion (dominant) is denied. A combined service connected disability evaluation in excess of 40 and 50 percent is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs