Citation Nr: 1124757	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  07-34 553	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased evaluation for degenerative joint disease of the right elbow, rated 20 percent disabling prior to June 7, 2010 and 40 percent disabling from that date.  

2.  Entitlement to a total disability compensation rating based on individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1970.  

This matter came to the Board of Veterans' Appeals (Board) from January 2007 and February 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded these claims in February 2010.  A review of the record shows that the RO has complied with all remand instructions to the extent possible.  Stegall v. West, 11 Vet. App. 268 (1998).  The Veteran was informed of the requirements for establishing entitlement to an extra-schedular evaluation for degenerative joint disease of the right elbow, underwent a VA examination to ascertain the current severity of his right elbow disability, and was issued a supplemental statement of the case.  

The Veteran testified at a hearing before the Board in January 2010.  

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to June 7, 2010, the Veteran's right elbow disability was not manifested by flexion limited to 70 degrees, extension limited to 90 degrees, forearm pronation lost beyond the middle of the arc, or hand fixed in full pronation.

2.  From June 7, 2010, the Veteran's right elbow disability is not manifested by flexion limited to 45 degrees or extension limited to 110 degrees.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent prior to June 7, 2010, and 40 percent from that date for degenerative joint disease of the right elbow have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5205-5213 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in September 2006.  The September 2006 letter provided the Veteran with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Thus, VA has satisfied its duty to notify the appellant.

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The evidence of record contains the Veteran's post-service VA and private medical records.  The most recent June 2010 VA examination was performed by a medical professional, based on a review of claims file and solicitation of pertinent history and symptomatology from the Veteran.  The examiner performed a thorough examination of the Veteran, and included diagnoses and rationales consistent with the examination and record.  The Board finds that it is adequate to evaluate the claims on appeal.  See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  Moreover, the examiner adequately addressed the instructions provided in the Board's February 2010 remand.  The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Legal Criteria

Disability evaluations 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 the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation.  X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Normal ranges of motion of the elbow and forearm are 0 degrees to 145 degrees in elbow flexion.  38 C.F.R. § 4.71, Plate I.  

In all the forearm and wrist injuries, Diagnostic Codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle injury, or nerve injury are to be separately rated and combined, not to exceed the rating for loss of use of the hand.

Diagnostic Code 5206 provides flexion of the forearm limited to 90 degrees is rated 20 percent for the major side; flexion of the forearm limited to 70 degrees is rated 30 percent disabling for the major side; flexion of the forearm limited to 55 degrees is rated 40 percent disabling for the major side; and flexion of the forearm limited to 45 degrees is rated 50 percent disabling for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5207 provides that extension of the forearm limited to 75 degrees is rated as 20 percent for the major side; extension of the forearm limited to 90 degrees is rated 30 percent for the major side; extension of the forearm limited to 100 degrees is rated 40 percent for the major side; and extension of the forearm limited to 110 degrees is rated 50 percent for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5208 provides that forearm flexion limited to 100 degrees with forearm extension limited to 45 degrees is rated 20 percent for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5209 provides ratings for other impairment of the elbow.  Joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, is rated 20 percent disabling for the major side.  Flail joint of the elbow is rated 60 percent disabling for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5210 provides that nonunion of the radius and ulna, with flail false joint, is rated 50 percent disabling for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5211 provides for ratings based on impairment of the ulna.  Nonunion of the ulna in the lower half is rated 20 percent for the major side; nonunion of the ulna in the upper half, with false movement, without loss of bone substance or deformity is rated 30 percent for the major side; nonunion of the ulna in the upper half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5212 provides for ratings based on impairment of the radius.  Nonunion of the radius in the upper half is rated 20 percent disabling for the major side; nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity is rated 30 percent disabling for the major side; nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent disabling for the major side.  38 C.F.R. § 4.71a.

Diagnostic Code 5213 provides ratings based on impairment of supination and pronation of the forearm.  Normal forearm supination is from 0 degrees to 80 degrees.  Normal forearm pronation is from 0 degrees to 85 degrees.  38 C.F.R. 
§ 4.71, Plate I.  Diagnostic Code 5213 provides that limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation, is rated 20 percent disabling for the major side; limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling for the major side.  Loss of supination or pronation due to bone fusion, with the hand fixed near the middle of the arc or moderate pronation, is rated 20 percent disabling for the major side; loss of supination or pronation due to bone fusion, with the hand fixed in full pronation, is rated 30 percent disabling for the major side; and loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling for the major side.  38 C.F.R. § 4.71a. 

Factual Background

A March 1971 rating decision assigned a 10 percent disability rating for residuals of a right elbow injury from September 19, 1970 under Diagnostic Code 5099-5010.  The Veteran filed an increased rating claim in August 2006.  The Veteran is currently assigned a 20 percent disability rating prior to June 7, 2010 and a 40 percent disability rating from that date under Diagnostic Code 5010-5213.  

VA outpatient treatment records dated in July 2006 reflect that the Veteran reported "catching" for six months.  He reported "sharp pain" after a "catch," then a "pop," then sharp pain lasting a second or so deep inside the right elbow.  He denied radiation, recent overuse, or specific precipitating or alleviating factors.  He stated that pain was no more frequent with work as a bus driver, although somewhat worse with weather changes.  He reported that he could not fully extend the elbow.  He stated that limited extension of the elbow was chronic.  There was normal flexion and extension to about 30 degrees.  Pronation and supination were normal.  There were scars over the lateral and posterior elbow.  No erythema, tenderness, or effusion was noted.  The Veteran was assessed with degenerative joint disease of the right elbow.  VA outpatient treatment records dated on August 11, 2006 reflect that the Veteran was assessed with internal derangement of the right elbow.  VA outpatient treatment records dated on August 22, 2006 reflect that the Veteran developed limitation of motion and had catching and snapping in the right elbow.  He reported sharp pain when the elbow would catch.  Supination and pronation seemed to be alright and near normal.  There was no neurovascular deficit.  X-ray findings showed marked degenerative joint disease with possible loose bodies.  The elbow joint was nearly bone on bone.  

The Veteran underwent a VA examination on November 3, 2006.  He reported weakness of the right arm and forearm with pulling and lifting, stiffness of the right elbow, with inability to completely extend the joint, giving way when exerting downward pressure on an object with his hand and forearm, lack of endurance, weakness and locking with repetitive use, and popping, cracking and catching in certain positions.  He stated that he had constant right elbow pain, traveling proximally up the arm and distally down the forearm to the hand.  He reported that the pain was burning, aching, sharp, sticking, and "needles and pins" in nature.  He stated that the pain was at a level of 7 out of 10.  He reported that pain could be elicited by physical activity and cold or damp weather and came by itself.  He stated that pain was at 7 out of 10 during cold weather, with flare-ups to 10 out of 10.  He reported that pain was not quite so severe in hot weather.  He stated that most days, he could function at full duty with medication, or with limited activity if he did not take medication.  He reported increasingly problematic weakness as he got older, as well as increasing pain.  He stated that his condition did not cause incapacitation.  He denied getting any prosthetic implants of the joint.  He reported that functional impairment was limited function for reaching and pulling.  He stated that he could not lift and carry as much weight as he used to.  He reported that he could not tolerate repetitive motion of the elbow or extension of the arm and forearm to open and close the doors of the school bus he drove.  

Upon physical examination, there was a level scar present at the lateral and radial aspect of the proximal forearm measuring 6 centimeters by 0.3 centimeters.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation and abnormal texture.  There was a "J" shaped laceration medial to and overlying the olecranon which was level measuring about 9 centimeters by 0.5 centimeters with abnormal texture of less than six square inches.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, inflammation and edema.  The Veteran is right-hand dominant.  The right elbow showed signs of weakness, abnormal movement and guarding of movement.  Weakness of flexion and extension was aggravated by repetitive motion. There was loss of full extension.  Flexion was to 145 degrees, extension was to 43 degrees, supination was to 85 degrees, and pronation was to 90 degrees.  Joint function was additionally limited by pain, fatigue, weakness, lack of endurance and pain after repetitive use.  Joint function on the right was not additionally limited by incoordination after repetitive use.  The above additionally limited joint function by 10 degrees.  X-ray findings showed degenerative arthritic changes, recurrent bone spur and possible posterior loose body.  The examiner diagnosed post traumatic osteoarthritis of the right elbow due to pain, stiffness, weakness, lack of endurance for repetitive motion and loss of full extension.  The effect of the condition on the Veteran's usual occupation was that his elbow condition made it difficult to open and close the door on the school bus he drove.  The effect of the condition on daily activity was significant limitation of extension, which created a functional impairment in his ability to use the right arm for pulling, lifting, raking, shoveling and use of implements such as a post hole digger.  

VA outpatient treatment records dated on November 29, 2006 reflect that the Veteran underwent arthrotomy, debridement, and removal of loose body of the right elbow.  In January 2007, the Veteran's subjective crepitus and snapping was noted to have dissipated.  In August 2007, extension was to about 50 degrees from neutral, flexion was to about 145 degrees.  The Veteran was assessed with right elbow degenerative joint disease.  In July 2008, flexion was zero to 60 degrees and the Veteran was assessed with history of right elbow trauma with decreased range of motion.  In October 2007, right elbow motion was "40-120/0-130 degrees."  Supination was to 80 degrees and pronation was to 80 degrees.  The Veteran was assessed with severe degenerative joint disease in the right elbow.  In August 2008, extension was to 35 degrees and flexion was to 130 degrees.  There was full supination.  There was generalized tenderness to palpation, especially at the tip of the elbow.  The Veteran was assessed with moderately advanced osteoarthritis of the right elbow, most probably posttraumatic in nature.  In November 2008, extension was to 35 degrees and flexion was to 130 degrees.  

The Veteran underwent another VA examination in September 2009.  He reported weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, deformity, tenderness and pain.  He denied heat, redness, drainage, effusion, subluxation and dislocation.  He reported flare-ups as often as 5 times per day lasting for one hour each with pain at a level of 7 out of 10.  He stated that flare-ups were precipitated by physical activity.  During flare-ups, he described it as "hurts to use" and limitation of motion of the joint was described as limited extension, popping, and catching.  He denied any incapacitation.  He stated that he could not turn the wheel of the bus.  He reported that he could not take pain medication while working, and he felt that his job was at risk because of it.  

Upon physical examination, there was tenderness.  There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment and drainage.  There was no subluxation.  Flexion was to 125 degrees, extension was to 70 degrees, supination was to 85 degrees, and pronation was to 80 degrees.  Repetitive range of motion was possible and there was no additional degree of limitation.  Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The Veteran reported constant pain but had no facial grimace during the examination.  The examiner diagnosed degenerative arthritis of the right elbow status post right elbow injury and Bosworth release surgery.  The Veteran's condition was active.  Pain was the subjective factor and limitation of range of motion was the objective factor.  The examiner noted that no scar could be seen on the right elbow.  The examiner stated that the elbow limited the Veteran's ability to work.  The effect of the condition on the Veteran's daily activity was normal unless it required use of the elbow, such as doing his roof.  

A letter from P.V. dated in February 2010 reflects that the Veteran has difficulty completing some duties as a bus driver.  

A letter from C.M., LMP-MA, dated in March 2010 reflects that the Veteran's right elbow was "about 60 percent limited in range" and that massage would ease some of the tensions.  

A letter from P.V. dated in April 2010 reflects that the Veteran missed many days of work that school year because of his service-connected injury.  

Private treatment records from Holy Family Hospital dated in April 2010 reflect that the Veteran was assessed with a decrease in muscle tone and downward sloping posture to right shoulder in a seated position, indicating decreased use of right upper extremity.  He demonstrated abnormal right arm swing with gait.  He presented with impaired range of motion to the entire right upper extremity, starting in his shoulder down to his wrist.  In comparison to the left shoulder, he demonstrated 43 percent less elbow flexion/extension.  The Veteran demonstrated a significant decrease in strength to right upper extremity with comparison to the left.  

The Veteran underwent another VA examination on June 7, 2010.  He reported deformity, pain, weakness, decreased speed of joint motion, locking episodes daily or more often, and moderate constant flare-ups of joint disease lasting more than a month.  He stated that bending the joint, lifting, and trying to extend the elbow were the precipitating factors for flare-ups.  He reported that he could not use the right arm when he had flare-up and it limited motion further.  He stated that motion was already limited by a 30 degree flexion contracture and that he could not extend the elbow fully to zero degrees.  He denied giving way, instability, incoordination, episodes of dislocation or subluxation, effusions, constitutional symptoms of arthritis, incapacitating episodes of arthritis, and limitations on standing or walking.  

Upon physical examination, there was crepitus, tenderness, and pain at rest in the joint of the elbow.  Flexion was 52 to 139 degrees, extension was negative 52 to negative 52 degrees, and pronation and supination were zero to 90 degrees.  There was no objective evidence of pain with active motion on the right side.  There was objective evidence of pain following repetitive motion.  The examiner was unable to test additional limitations after three repetitions of range of motion because elbow joint was sore from active and passive range of motion.  There was no joint ankylosis.  The Veteran had a 52 degree flexion contracture of the elbow with complete flexion at 139 degrees.  He could not extend the elbow beyond 52 degrees.  The examiner diagnosed right elbow contracture moderately advanced osteoarthritis.  Right elbow pain was associated with the diagnosis.  The right elbow disability had significant effects on usual occupation, including decreased manual dexterity, lack of stamina, and weakness or fatigue, which resulted in increased absenteeism.  The Veteran lost less than one week from work due to elbow pain during the previous 12 month period.  The right elbow disability had mild effects on feeding, bathing, dressing, toileting, and grooming, as well as moderate effects on chores, shopping, exercise, sports, recreation, traveling, and driving.  

Analysis
Prior to June 7, 2010

In order to receive a higher rating under DCs 5206 or 5207, flexion would have to be limited to 70 degrees or extension would have to be limited to 90 degrees.  The Board finds that the Veteran does not have flexion of the forearm limited to 70 degrees or extension of the forearm limited to 90 degrees.  The Board notes that the Veteran had flexion to 60 degrees in July 2008.  However, the Veteran normal flexion in July 2006, flexion to 135 degrees in November 2006, 145 degrees in August 2007, 120 degrees in October 2007, 130 degrees in August 2008 and November 2008, and 125 degrees in September 2009.  Moreover, at its worst, the Veteran had extension to 70 degrees in September 2009.  Therefore, the Board is unable to find that a higher, 30 percent rating is warranted.  The Board notes that C.M., LMP-MA, stated in March 2010 that the Veteran's right elbow had "about 60 percent limited in range" and private treatment records from Holy Family Hospital dated in April 2010 reflect that, in comparison to the left shoulder, the Veteran demonstrated 43 percent less elbow flexion/extension.  However, the records from C.M. and Holy Family Hospital do not contain any range of motion findings.  

In order to receive a higher rating under DC 5213, there would have to be loss of pronation motion of the forearm beyond the middle of the arc, or right hand fixed in full pronation.  Normal ranges of motion of the forearm is pronation of 0 to 80 degrees and supination of 0 to 85 degrees.  38 C.F.R. § 4.71, Plate I.  At its worst, the competent evidence of record shows that the Veteran's right elbow had pronation limited to 80 degrees and supination limited 75 degrees.  Therefore, the Veteran's elbow has motion well beyond the middle of the arc, and there is no competent evidence of record indicating that the Veteran's hand is fixed in any position.  Thus, a rating in excess of 20 percent is not warranted under DC 5213.  See Id.

From June 7, 2010

In order to receive a higher rating under DCs 5206 or 5207, flexion would have to be limited to 45 degrees or extension would have to be limited to 110 degrees.  The Board finds that the Veteran does not have flexion of the forearm limited to 50 degrees or extension of the forearm limited to 110 degrees.  For example, on June 7, 2010, flexion was 52 to 139 degrees and extension was to 52 degrees.  Therefore, the Board is unable to find that a higher, 50 percent rating is warranted.  

Under DC 5213, a maximum 40 percent evaluation is warranted for loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation.  As noted above, the Veteran is receiving a 40 percent disability rating from June 7, 2010.  Given that the maximum rating under DC 5213 is 40 percent, the Veteran cannot be assigned a rating higher than he currently has under this code.  See 38 C.F.R. § 4.71a.

DeLuca

The disabling effects of pain have been considered in evaluating the Veteran's service-connected right elbow disability, as indicated in the above discussions.  See DeLuca, supra.  The Veteran's complaints of pain, and the examiner's observations of pain and painful motion, were considered in the level of impairment and loss of function attributed to his disability.


Consideration of other Diagnostic Codes

Several of the listed diagnostic codes are inapplicable in this case.  Diagnostic Code 5205 is inapplicable because there is no competent evidence indicating, nor does the Veteran contend ankylosis involving the elbow.  Diagnostic Code 5209 is inapplicable because there is no competent evidence indicating, nor does the Veteran contend that his disability involves flail joint of the elbow.  Diagnostic Code 5210 is inapplicable because there is no competent evidence indicating, nor does the Veteran contend that his disability involves nonunion of the radius and ulna.  Diagnostic Code 5211 is inapplicable because there is no competent evidence indicating, nor does the Veteran contend that his disability involves impairment of the ulna.  Diagnostic Code 5212 is inapplicable because there is no competent evidence indicating, nor does the Veteran contend that his disability involves impairment of the radius.  

Under DC 5208, a maximum 20 percent evaluation is warranted for limitation of flexion of the forearm to 100 degrees and extension of the forearm to 45 degrees.  As noted above, the Veteran received a 20 percent disability rating prior to June 7, 2010 and a 40 percent disability rating from that date.  Given that the maximum rating under DC 5208 is 20 percent, the Veteran cannot be assigned a rating higher than he currently has under this code.  See 38 C.F.R. § 4.71a.

Finally, the November 2006 VA examination report noted that there was a level scar present at the lateral and radial aspect of the proximal forearm measuring 6 centimeters by 0.3 centimeters and a "J" shaped laceration medial to and overlying the olecranon which was level measuring about 9 centimeters by 0.5 centimeters.  In September 2009, no scar could be seen on the right elbow.  On this basis, entitlement to a separate evaluation for the scars has been considered.  Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (holding that separate evaluations are warranted where the symptomatology under various diagnostic codes is not duplicative or overlapping).  However, the scars on the Veteran's right forearm were not noted to measure 39 square centimeters or more in length, and were also not documented as unstable, painful, or manifested by any of the other qualifying characteristics such that a separate evaluation for that scar is warranted.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2010).

Extraschedular Consideration

The Board has considered whether referral of the case for an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 is warranted.  In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue.  The criteria contemplate showing of, for example, pain (including the severity), and limitation of motion.  In short, the rating criteria contemplate not only the Veteran's symptoms but the severity of his disability.  For these reasons, referral for extraschedular consideration is not warranted.  

The Veteran genuinely believes that the severity of his right elbow disability merits higher ratings.  However, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the severity of his service-connected right elbow disability, and his views are of no probative value.  And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the detailed opinions provided by the VA medical professionals, which show that the criteria for increased ratings for a right elbow disability have not been met.  See Jandreau, supra; Gilbert, supra; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a, DCs 5003, 5010, and 5205-5213.

In sum, for the reasons and bases expressed above, the Board concludes that there is a preponderance of the evidence against the Veteran's claim of entitlement to an increased evaluation for degenerative joint disease of the right elbow.  The benefits sought on appeal are therefore denied.


ORDER

Entitlement to a rating in excess of 20 percent prior to June 7, 2010, and 40 percent from that date for degenerative joint disease of the right elbow is denied.  


REMAND

The issue of a TDIU was raised by the evidence of record.  In March 2011, the Veteran stated that he will retire in the near future due to his service-connected right elbow disability.  Because of this evidence suggesting unemployability, further development is warranted to ascertain whether the Veteran's right elbow disability renders him unemployable.  This evidence of record that suggests the Veteran cannot work due to his service-connected disability constitutes an informal claim for TDIU.  Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations").  See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). 

The United States Court of Appeals for Veterans Claims has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).  In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on the ability to work.  Friscia at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); See also 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2010); Beaty, 6 Vet. App. at 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993).  In light of the above, the Board finds that the additional VA examination must ascertain whether the Veteran is unemployable due to occupational impairment of service-connected right elbow disability.

Accordingly, the case is REMANDED for the following actions:

1.  Ensure VCAA compliance with the duty to notify and the duty to assist on the claim for TDIU by sending the Veteran a VCAA letter on the issue of entitlement to a total rating based on unemployability due to service-connected right elbow disability.  

2.  Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected right elbow disability on employability.  The claims folder should be made available to the examiner.  The examiner should offer an opinion as to whether the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected right elbow disability.  The examination report should include a complete rationale for all opinions and conclusions reached.

3.  Thereafter, the case should be returned to the Board for appellate review.  After the development has been completed, adjudicate the claim for a TDIU.  If the benefit of entitlement to a TDIU remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs