Citation Nr: 1135331 Decision Date: 09/21/11 Archive Date: 10/03/11 DOCKET NO. 08-10 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals, fracture of left elbow with mild degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Erin E. Conway, Law Clerk INTRODUCTION The Veteran served on active duty from August 1969 to March 1972. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Sioux Falls, South Dakota, Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, the record does not suggest, and the Veteran does not allege, that his left elbow disability has rendered him unemployable. Indeed, the record shows that the Veteran is employed on a full-time basis at Ellsworth Air Base as a heating mechanic. As such, Rice is inapplicable to this case. FINDINGS OF FACT Throughout the rating period on appeal, the Veteran's left elbow disability has been characterized by continuous, aching pain, made worse by lifting and repetitive motion, with periods of flare-ups and some limitation of range of motion with subjective pain; there is no showing of ankylosis, left arm flexion limited to 90 degrees or worse, or left arm extension limited to 75 degrees or worse. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent evaluation for left elbow disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.30, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5205-13 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in March 2007 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Throughout the rating period on appeal, the Veteran has been service-connected for residuals of a left elbow fracture with mild degenerative joint disease, evaluated as 10 percent disabling. Under Diagnostic Code 5010, arthritis due to trauma substantiated by x-ray findings will be rated as degenerative arthritis. Degenerative arthritis will be rated based on the limitation of motion of the affected joint based on x-ray findings. Limitation of motion of the elbow is evaluated under Diagnostic Codes 5206 for limitation of flexion, 5207 for limitation of extension, 5208 for limitation of both flexion and extension, and 5213 for impairment characterized by supination or pronation. Turning to the relevant evidence of record, in a VA progress note dated in April 2007, the Veteran noted pain in his left elbow, which he rated at 6 out of 10. The note referred to both left elbow and left knee pain, and does not distinguish the two. However, the Veteran indicated that his pain was continuous and aching, was made worse by walking and lifting, and was relieved by staying still and resting. He reported decreased function in the left arm due to pain, as well as decreased quality of life, sleep, physical activity, and depression. The Veteran underwent a VA compensation and pension examination in May 2007. At that time, he reported that his left elbow disability was worsening. He had continuous daily pain in the elbow that was achy, which he rated as was most 3-4 out of 10 in intensity. The pain was aggravated by lifting greater than 10 pounds or doing repetitive motions with his left elbow. He also reported flare-ups of pain occurring approximately 6 times per year, lasting for about five days, requiring him to lie down or use a heating pad on his elbow. He rated such pain as 6-7 out of 10 in severity. He denied any redness, swelling and heat, but reported that his elbow popped and was sensitive to the touch during flare-ups. The Veteran favored his left elbow during some activities, he tired easily during household tasks, and he no longer played sports due to his left elbow injury. He also used a sling for the left arm, as needed. Objectively, there was no swelling or discoloration of the left elbow. There was tenderness on palpation of the left elbow olecranon process, accompanied by slight wincing. He had flexion to 132 degrees, extension to 0 degrees, pronation to 80 degrees, and supination to 85 degrees. There was no evidence of further pain, fatigue, weakness, incoordination, or further loss of range of motion with repetitive movement. Additionally, he had 4/5 supination and pronation strength, as compared to 5/5 on the right side. An x-ray taken in conjunction with the May 2007 examination showed mild degenerative joint disease of the elbow. There was mild irregularity of the head of the radius which the radiologist indicated may have been from an old healed fracture. There was minimal marginal spurring on the medial joint space, which was also though to have been from old trauma. There was no acute abnormality seen. During VA treatment for his left knee issues in January 2008, the Veteran complained again of left elbow pain. However, no objective findings were made at that time. Left elbow films from March 2008 confirmed the results from the May 2007 x-rays. In a left elbow evaluation on the same day, the Veteran reported aching pain, ranging from 0-7 out of 10, located over the left lateral epicondyle, radiating down into the forearm. He reported having night pain, and stated that he was unable to play basketball. Carrying weights over a gallon and rotating the arm externally aggravated the pain most. On examination, there was no distal paresthesias and no weakness. There was tenderness on pressure immediately distal and medial to lateral epicondyle. There was some pain on passive and active supination, and with resisted wrist and finger extension distal to lateral epicondyle, but there was no loss of strength. The examiner opined that the symptoms most likely represented lateral epicondylitis (tennis elbow). An April 2008 MRI of the left elbow showed that the radial ligament was consistent with a partial tear or grade II sprain. There were degenerative changes of the lateral joint, manifested by joint space narrowing and increased signal in the capitulum. There were hypertrophic spurs about the capitulum, and slight irregularity of the radial head was seen, presumed to be secondary to old trauma. Findings suggested bone-on-bone arthritis about the lateral compartment. The medial collateral ligament was somewhat attenuated in appearance, consistent with a grade I sprain. The Veteran then underwent a second VA compensation and pension examination in April 2008. He reported that the achiness in his left elbow, which had previously been intermittent, was now constant. He also indicated that at the time of his previous VA examination, he had been on pain medication for a knee injury, which had masked his elbow pain. He reported pain of 7 out of 10, along with weakness, stiffness, redness, giving way, locking, and popping. He denied swelling, heat or fatigue. He reported flare ups of pain at 8 out of 10, occurring weekly and lasting for 3-4 days. Flare-ups were usually precipitated by lifting, and the pain was relieved by use of a sling, resting the arm, and taking aspirin. He reported that his inability to work, function, or use his arm during periods of flare-up result in additional limitation of motion. However, the examiner opined that it would be mere speculation to estimate the loss of function or motion during flare-ups. The Veteran reported that he compensated for his left elbow pain by primarily using his right arm for many activities of daily functioning. Occupationally, the Veteran reported not being able to lift more than 10 pounds. He asked for help with lifting and turning objects, and also required assistance when working on boilers. His elbow pain caused him to miss six weeks of work over the past 12 months. Regarding activities of daily living, the Veteran only uses his right hand while driving, and he could not participate in recreational activities such as basketball as often as he used to. He no longer hunted or went camping. His left elbow disability also prevented him from performing household activities such as making the bed, doing laundry, painting, gardening, mowing the lawn and shoveling. On physical examination, the elbow showed no redness, swelling or warmth. There was point tenderness over the lateral epicondyle, but no pain over the olecranon. The Veteran noted pain to the antecubital area with pronation, and to the lateral epicondyle and deltoid with supination. There was no muscle atrophy or ankylosis noted. The Veteran's active ranges of motion were: flexion to 110 degrees, extension to 3 degrees, pronation to 80 degrees, and supination to 50 degrees. For each of these, the Veteran reported subjective pain, but no objective pain was noted. He terminated most of the passive range of motion testing due to subjective pain. Three repititions of flexion and extension were negative for any additional pain, fatigue, weakness, lack of endurance, or incoordination. The examiner diagnosed the Veteran with status post left elbow fracture with degenerative joint disease, and left elbow lateral epicondylitis. However, the examiner opined that the lateral epicondylitis was not related to the degenerative joint disease, as it is well known that the cause is repetitive-type movements. The range of motion findings detailed above do not on their face support assignment of the next-higher 20 percent evaluation for flexion or extension of the left elbow. The Board acknowledges that at the April 2008 VA examination, the Veteran's left elbow flexion was 35 degrees less than normal full flexion. However, in order to qualify for a 20 percent disability rating, the evidence must show flexion limited to 55 degrees, or disability comparable thereto. His left elbow extension in the 2008 VA examination was 3 degrees less than normal full extension. However, in order to qualify for a 20 percent disability rating, the Veteran would have to show extension limited to 75 degrees, or disability comparable thereto. A 20 percent disability rating is also applicable when a Veteran has extension limited to 100 degrees and flexion limited to 45 degrees. However, at no point during the period on appeal has the Veteran met these criteria for loss of flexion and extension. Thus, a 20 percent rating is not warranted based on limitation of flexion, extension, or both. In so deciding, the Board has considered his consistent complaints or pain, and his statements as to the adverse effects on his activities of daily living and on his occupation. However, the higher award is not issued solely due to pain. Rather, an increase under DeLuca principles is predicated on the additional loss of function due to such pain. Here, there is no objective showing of additional loss of function, even with repetitive movement. In order to qualify for a 20 percent disability rating for limitation of pronation, the Veteran must have loss of motion beyond the last quarter of arc, and the hand must not reach full pronation. The evidence does not show any limitation of pronation, however. Considering limitation of supination, the Veteran shows a loss of 35 degrees of supination. However, in order to qualify for even a 10 percent disability rating, the Veteran would have to show a loss of 55 degrees of supination. Thus, a 20 percent rating is not warranted based on limitation of pronation or supination. In reaching the above conclusions, the Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the Board acknowledges the Veteran's complaints of frequent left elbow pain, increasing with lifting and repetitive motion activities. Despite the Veteran's subjective complaints of persistent pain worsening with increased use of the left elbow, however, the objective evidence of record does not show any additional functional limitation due to this pain. In fact, during both VA examinations, the examiners noted no additional pain, fatigue, weakness, lack of endurance, or incoordination due to repititions of range of motion testing. There was also no additional loss of motion associated with repetitive testing. As such, a higher evaluation based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5206-08, 5213. For the above reasons, the Board determines that preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's left elbow disability based on arthritis. 38 C.F.R. § 4.7. The Board will now turn to other disability codes under which the Veteran's left elbow disability could be rated. The Veteran's examinations did not indicate ankylosis of the left elbow, other impairment of the flail joint, nonunion of the radius and ulna, or nonunion of either the radius or ulna. As such, the Veteran does not qualify for an increased rating on these bases. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5209-12. Further, the Board acknowledges that the Veteran, his wife, and his employer each note left elbow pain causing lost time from work. However, this is already contemplated by the currently assigned the 10 percent rating. For the reasons discussed above, a higher schedular evaluation is not justified here. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected degenerative arthritis of the right knee, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In sum, the Board finds that, at no time during the pendency of this claim for an increased rating, has the Veteran's left elbow disability warranted an evaluation in excess of 10 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this conclusion the benefit of the doubt has been applied as appropriate. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the appeal is denied. ORDER An evaluation in excess of 10 percent for left elbow disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs