Citation Nr: 1108554 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 09-17 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a left elbow disability. 2. Entitlement to an initial rating in excess of 10 percent for a right wrist disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to August 1981 and from May 2007 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran's claims were remanded by the Board for additional development in March 2010. At that time the issue of entitlement to service connection for a right knee disability was also appealed to the Board. An August 2010 rating decision granted service connection for a right knee disability. Consequently, that issue is no longer before the Board. FINDINGS OF FACT 1. The Veteran's left elbow disability is manifested by flexion limited to 110 degrees and extension limited to 0 degrees with subjective reports of pain 2. The Veteran's right wrist disability is not manifested by favorable ankylosis in 20 to 30 degrees of dorsiflexion CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a left elbow disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5206-5210 (2010). 2. The criteria for a disability rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5215 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in May 2008 and March 2010; a rating decision in September 2008; and a statement of the case in April 2009. Those documents discussed specific evidence, particular legal requirements applicable to the claims, evidence considered, pertinent laws and regulations, and reasons for the decisions. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the August 2010 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to the claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore the error was harmless). Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2010). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). However, while the lists of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, they are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2010). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2010). However, 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 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 (2010). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2010). For the purpose of rating disability from arthritis, elbows and wrists are considered major joints. 38 C.F.R. § 4.45 (2010). Left Elbow Disability The Board notes that the evidence shows that the Veteran is right-handed. Therefore, the rating of his left elbow will applied for the minor arm. 38 C.F.R. § 4.69 (2010). The Veteran's service-connected left elbow disability has been rated as 10 percent disabling since May 28, 2008, under Diagnostic Codes 5206-5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2010). Under Diagnostic Code 5206 for limitation of flexion of the forearm, flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2010). Other applicable codes include Diagnostic Codes 5207 and 5213. Under Diagnostic Code 5207 for limitation of extension of the forearm, extension limited to 60 degrees warrant a 10 percent rating. Extension limited to 75 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5207 (2010). Under Diagnostic Code 5213, for impairment of supination or pronation, limitation of supination to 30 degrees or less warrants a 10 percent rating. Limitation of pronation with motion lost beyond the last quarter arch where the hand does not approach full pronation warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2010). Furthermore, where forearm flexion is limited to 100 degrees and extension to 45 degrees, a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5208 (2010). On VA examination in August 2008, the Veteran complained of pain, swelling, giving way, and episodes of locking in his left elbow. Physical examination found flexion was 0 degrees to 142 degrees and extension was 0 degrees. Supination was 80 degrees and pronation was 80 degrees. There was no additional loss of motion on repetitive use. X-rays of the left elbow revealed that the joint space was preserved with minimal osteophytes, no effusion, a tiny ossicle anterior to the elbow joint, and olecranon spurring. The examiner diagnosed the Veteran with arthralgia of the left elbow. The examiner noted that the Veteran was not employed. On VA examination in April 2010, the Veteran complained of pain, giving way, instability, stiffness, weakness, incoordination, daily locking episodes, and flare-ups of joint disease in his left elbow. Physical examination found flexion was 0 degrees to 110 degrees and extension was 0 degrees. Supination was 90 degrees and pronation was 90 degrees. There was evidence of pain but the range of motion was not limited by repetitive use. X-rays of the left elbow revealed moderate degenerative changes. The examiner diagnosed the Veteran with degenerative joint disease of the left elbow. The examiner noted that the Veteran's usual occupation was a military technician. The Veteran reported that he lost four weeks of work in the past year due to doctor appointments and physical therapy for his joint conditions. The examiner indicated that the Veteran's left elbow disability impacted his occupational activities due to decreased manual dexterity causing problems with lifting and carrying, decreased strength, and upper extremity pain, resulting in increased absenteeism. Based on the evidence, the Veteran had flexion limited at most to 110 degrees and extension of 0 degrees, with subjective reports of pain. The Board finds that range of motion does not more nearly approximate flexion limited to 110 degrees or extension limited to 45 degrees, considering 38 C.F.R. §§ 4.40, 4.45, and thereby does not meet compensable ratings of 10 percent under Diagnostic Codes 5206 and 5207 respectively. Furthermore, flexion limited to 100 degrees and extension limited to 45 degrees is not shown to warrant a higher rating under Diagnostic Code 5208. As pronation and supination were between 80 and 90 degrees with subjective reports of pain, which does not more nearly approximate supination limited to 30 degrees or limitation of pronation manifested by motion lost beyond the last quarter of the arc, considering 38 C.F.R. §§ 4.40, 4.45, the Board finds that a compensable rating for impairment of supination or pronation is not warranted under Diagnostic Code 5213. Ankylosis, flail joint, and nonunoin or malunion of the radius or ulna are not shown. Therefore, Diagnostic Codes 5205, 5209, 5210, 5211 and 5212 are not applicable. As the Veteran did not have flexion limited to 100 degrees and extension limited to 45 degrees, Diagnostic Code 5208 is not applicable. The Board finds that the Veteran's range of motion does not meet the criteria for a 20 percent rating of limitation of flexion to 90 degrees, limitation of extension to 75 degrees, limitation of flexion to 100 degrees and extension to 45 degrees, or limitation of supination to 30 degrees, or limitation of pronation beyond the last quarter of arc. Therefore, the Board finds that the preponderance of the evidence is against the claim for an increased initial rating and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Wrist The Veteran's right wrist disability has been rated as 10 percent disabling since May 28, 2008, under Diagnostic Codes 5010-5215. The Veteran is right handed, so the criteria for rating disabilities of the major arm will be applied. 38 C.F.R. § 4.69 (2010). Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2010). Limitation of motion of the wrist is addressed under Diagnostic Code 5215. A 10 percent rating represents the maximum available benefit under that Code. Thus, the Veteran is in receipt of the maximum rating assignable for limitation of motion of the wrist. To warrant a higher rating, the evidence must demonstrate favorable ankylosis (frozen joint) of the wrist in 20 to 30 degrees of dorsiflexion. 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board notes that the Veteran reported during his August 2008 VA examination that he was unable to put pressure on his right wrist and any type of pressure to the right wrist was painful. The Veteran indicated that he had giving way, instability, weakness and inflammation of the right wrist. The Veteran additionally indicated that he had no flare-ups of joint disease. Physical examination revealed dorsiflexion of 0 degrees to 30 degrees, palmar flexion from 0 degrees to 80 degrees, ulnar deviation from 0 degrees to 51 degrees, and radial deviation from 0 degrees to 25 degrees, with reports of pain but no additional loss of motion on repetitive use. There was no evidence of any upper extremity abnormalities and examination of the right hand was normal. X-rays of the right wrist found no significant degenerative changes. The examiner diagnosed the Veteran with arthralgia of the right wrist. The examiner noted that the Veteran was not employed. At an April 2010 VA examination, the Veteran indicated that his right wrist disability was manifested by giving way, instability, pain, stiffness, weakness, incoordination, limited motion and flare-ups. Physical examination revealed dorsiflexion of 0 degrees to 60 degrees, palmar flexion from 0 degrees to 30 degrees, ulnar deviation from 0 degrees to 35 degrees, and radial deviation from 0 degrees to 20 degrees. There was objective evidence of pain with active motion of the right wrist but no additional loss of motion after three repetitions of range of motion. X-rays of the right wrist revealed no acute osseous abnormality. The examiner diagnosed the Veteran with arthralgia of the right wrist. The examiner indicated that the Veteran worked as a military technician and that his left elbow disability impacted his occupational activities due to decreased manual dexterity causing problems with lifting and carrying, decreased strength, and upper extremity pain resulting in increased absenteeism. The evidence as reported above does not show that the Veteran's right wrist disability is manifested by favorable ankylosis in 20 to 30 degrees of dorsiflexion. In the absence of evidence showing such findings, the Board finds that a higher rating is not warranted. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply because the Veteran is already receiving the highest rating for limitation of motion of the wrist. However, even considering any complaints of pain, the evidence does not show that the Veteran's disability more nearly approximates favorable ankylosis of the wrist. The Board finds that the preponderance of the evidence is against the claim for an increased initial rating and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations The Board has considered whether extraschedular ratings are warranted in this case. The threshold factor for extraschedular consideration is a finding on the part that the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability at issue is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2010). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2010). The Board finds that referral is not appropriate in this case. While the evidence of record show that the Veteran's left elbow and right wrist disabilities result in some interference with his employment, the evidence does not show that these disabilities markedly interfered with his employment beyond that contemplated in the assigned rating. Moreover, the evidence does not show any hospitalizations due to the right wrist or left elbow disabilities. Consequently, the Board finds that the evidence does not establish that the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial rating in excess of 10 percent for a left elbow disability is denied. Entitlement to an initial rating in excess of 10 percent for a right wrist disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs