Citation Nr: 1308719	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO. 08-02 244	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for a left elbow disability, prior to December 10, 2009 and from April 1, 2010. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1986 to September 1986; from March 2003 to April 2004; and from October 2004 to March 2006.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 

This case was previously before the Board in December 2008 and February 2012 and was remanded for additional development. 

The Veteran testified at a May 2008 hearing before the undersigned. A transcript of the hearing is in the claims file. The Veteran was also scheduled to testify at a hearing before the Board on January 9, 2012. A notice letter informing the Veteran of the date, time, and location of the hearing was sent to him in October 2011. However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board may proceed with appellate review. 

During the pendency of the appeal, a May 2011 rating decision granted the Veteran a temporary total convalescent rating of 100 percent for his left elbow disorder, effective December 10, 2009, the date of his elbow reconstruction surgery. The RO reinstated the 20 percent rating effective April 1, 2010, which is the day that the convalescent rating terminated. 

A March 2011 VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim (VA Form 21-0819) indicates that the Veteran also wishes to pursue increased ratings for his service-connected right ear hearing loss and cholesteatoma. These issues have not yet been adjudicated by the RO as the agency of original jurisdiction (AOJ) and are referred to the RO for appropriate action. 

A July 2011 occupational therapy record from the Walter Reed Army Medical Center states that the Veteran had numbness at night in the ulnar nerve distribution and reported "tingling" of the ulnar nerve with tapping at the medial epicondyle. Decreased hand strength was also noted and it appeared that the Veteran had a superficial ulnar nerve subluxing over the medial epicondyle with repetitive motion. Decreased grip strength was also noted in the May 2012 VA examination report. The issue of whether the Veteran has a neurological abnormality secondary to his left elbow disability is referred to the AOJ for appropriate action. See 38 C.F.R. § 4.71a, THE ELBOW AND FOREARM, NOTE.

The May 2012 VA examination report shows that the Veteran has a scar associated with the December 2009 left elbow surgery. The issue of whether a separate rating is warranted for the left elbow scar is referred to the AOJ for appropriate action. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. Prior to December, 10, 2009, the Veteran's left elbow disability was manifested by a cubitus varus deformity, arthritis, pain, limited motion with flexion greater than 110 degrees and extension limited to less than 45 degrees, and ulnar collateral ligament laxity with recurrent dislocations requiring surgical reconstruction. 

2. As of April 1, 2010, the Veteran's left elbow disability has been manifested by a cubitus varus deformity, arthritis, pain, loss of strength, limited motion with flexion greater than 110 degrees and extension limited to less than 45 degrees, but without ligament laxity or dislocations following surgical ligament reconstruction. 


CONCLUSIONS OF LAW

1. Prior to December 10, 2009, but not as of April 1, 2010, the criteria for a separate rating of 10 percent, but no higher, have been met for the Veteran's left elbow laxity with recurrent dislocations. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Code 5211 (2012). 

2. Throughout the pendency of this claim, the criteria for a separate 10 percent rating, but no higher, for left elbow arthritis with painful and limited motion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5003, 5010, 5206, 5207, 5208, 5213 (2012). 

3. The criteria for a rating in excess of 20 percent for other impairment of the elbow have not been met at any point during the pendency of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Code 5209 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Preliminary Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

II. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

This appeal stems from a granted service connection claim. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Notifying the claimant of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements. See id. at 486; Quartuccio, 16 Vet. App. at 187. However, in Goodwin v. Peake, 22 Vet. App. 128, 136 (2008), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled. 

Prior to the initial rating decision, an April 2007 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf. Therefore, the duty to notify has been satisfied. See id.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 

The Veteran's active service treatment records, service personnel records, National Guard records, and VA medical records are in the file. Further, in accordance with the Board's December 2008 and February 2012 remand directives, a copy of the Veteran's November 2010 Medical Evaluation Board proceeding from the Walter Reed Army Medical Center has been associated with the file, as well as other records held or generated by this facility. Private medical records identified by the Veteran have also been associated with the file to the extent possible. He was also sent a January 2009 letter requesting him to identify any other relevant records, as instructed in the Board's December 2008 remand. He has not identified any other outstanding records pertaining to this claim. Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf. See 38 C.F.R. § 3.159(c). 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a new VA examination must be conducted.  See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id.

A VA examination of the Veteran's left elbow was initially performed in June 2007. In accordance with the Board's December 2008 remand directive, an appropriate VA joints examination was performed in September 2009. The examination report is adequate for rating purposes, as the examiner reviewed the claims file and medical history, examined the Veteran and thoroughly recorded the pertinent clinical findings, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

The examination was not performed by an orthopedic specialist, as instructed in the Board's December 2008 remand, because such a specialist was not at the facility where the examination was conducted. However, there is no indication that a specialist is required to make the appropriate clinical findings relevant to evaluating the Veteran's left elbow disability, and the examination report describes in detail the nature and severity of the Veteran's left elbow disability and the resulting functional impairment. The Board's central inquiry in this case is the determination of the level of disability sustained by the Veteran, and the examination fully addresses this question. Thus, the September 2009 VA examination substantially complies with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

A VA joints examination was also performed in May 2012 to assess the Veteran's left elbow disability. The examination report includes a discussion of the Veteran's relevant medical history, the pertinent clinical findings, a description of the functional impairment resulting from the Veteran's left elbow disability, and an assessment of how it changed following a December 2009 surgical reconstruction of the left elbow ligaments. Although the examiner did not review the claims file, the examiner thoroughly discussed the pertinent medical history, and such a review would not have changed the examiner's clinical findings on the day of the examination. Thus, a lack of review of the claims file did not by itself affect the adequacy of the examination. See Mariano v. Principi, 17 Vet. App. 305, 311-312 (2003) (holding that range of motion measurements are not conclusions drawn by a VA examiner that would be affected by review of the claims file, and therefore failure to review the file in conducting an orthopedic examination did not undermine the objective findings recorded by the VA examiner). Therefore, the May 2012 VA examination report is adequate for deciding this claim. 

The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his left elbow disability since he was last examined in May 2012. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. 

In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. 

As shown above, all of the Board's remand directives have been satisfied. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. 

III. Analysis

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) 

The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must assess the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). 

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). The percentage ratings in the schedule represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that there may be overlap in disability from distinct injuries or diseases. See 38 C.F.R. § 4.14 (2012). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id.

In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim; this practice is known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

The Veteran's left elbow disability has been rated as 20 percent rating under Diagnostic Code (DC) 5209. See 38 C.F.R. § 4.71a. According to an October 2006 VA orthopedic consultation report and the Veteran's testimony at the Board hearing, the Veteran's left arm is his minor extremity. Thus, only the ratings applicable to the minor extremity will be discussed. See 38 C.F.R. § 4.69 (2012) (providing that handedness for the purpose of assigning a higher rating for the dominant hand will be determined by the evidence of record, or by testing on VA examination, and that only one hand shall be considered dominant). Under DC 5209, which pertains to "other impairment" of the elbow, a 50 percent rating is assigned for flail joint. A 20 percent rating is assigned for joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius. 38 C.F.R. § 4.71a. 

In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. 38 C.F.R. § 4.59 (2012). Thus, section 4.59 of the regulations advises that the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). 

Further, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Regarding the joints, consideration must be given to less movement than normal, more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the factors in sections 4.40 and 4.45 of the regulations are not subsumed by the rating criteria set forth in the diagnostic codes applicable to the joint involved, but rather must be considered in their own right); but see Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (observing that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes pertaining to musculoskeletal function). 

The service treatment records and November 2010 Medical Evaluation Board (MEB) report show that the Veteran first injured his elbow at the age of eighteen and underwent an open reduction internal fixation (ORIF) surgery with implantation of hardware which was removed five years later. He had no further symptoms until he fell in October 2005 during active service and dislocated his left elbow. X-rays taken in October 2005 showed a complete dislocation of the elbow with apparent small avulsion fragment. No definite fracture was otherwise shown. The Veteran underwent a reduction procedure to relocate the elbow, but continued to have recurrent dislocations until a December 2009 surgery at VA, as shown below. 

An October 2006 VA orthopedic consultation report reflects that the Veteran experienced three more dislocations since the October 2005 injury while getting out of a seated or supine position. On examination, the Veteran had a decreased carrying angle and a cubitus varus ("gunstock") deformity of the left elbow. He had full range of motion from 0 to 150 degrees. However, he had significant opening with flexion and varus stress, and minimal opening with extension and valgus stress. A CT scan showed a hypoplastic left lateral epicondyle. There was also an obvious fracture dislocation. The treating physician assessed an injury to the lateral ulnar collateral ligament with resulting instability. 

The June 2007 VA examination report reflects that the Veteran had recurrent laxity of the left elbow since the October 2005 injury. He reported at least a dozen episodes of subluxation since October 2006. He stated that any pressure to the elbow when it was fully extended would cause subluxation. He described the subluxation as a popping in and out. The elbow did not become completely dislocated. The elbow swelled any time it dislocated or popped in and out, as related by the Veteran. He also had pain with the dislocation if he tried to do any lifting with the arm fully extended. He took over-the-counter pain relief medication, but it was only moderately effective in alleviating pain. During sleep he experienced increased pain if he slept on the elbow. He reported stiffness, fatigability, and lack of endurance of the elbow, but denied heat, redness, or locking. He was unable to push a lawnmower or do any significant pulling without causing subluxation. For example, he stated that holding his children's hands when they pushed and pulled on the arm could cause it to pop in and out. He denied flare-ups. 

On examination, there was no significant tenderness to external palpation. He had full range of motion of 0 to 145 degrees. However, there was mild pain through all ranges of motion of the elbow, as well as a popping sensation with passive and active motion.. There was no weakness, decreased endurance, or "easy fatigability" with three repetitions of range of motion testing, and there was no change in the range of motion or increased pain. There was a "[s]ignificant opening with flexion in varus stress." Pain was the most limiting factor, "with popping in and out and applying varus stress." The examiner noted that October 2006 x-rays and a CT scan showed osteoarthritis of the left elbow but was otherwise unremarkable. The examiner diagnosed degenerative arthritis of the left elbow with recurrent laxity. 

In a July 2007 private assessment of the left elbow, examination revealed essentially full range of motion, although he reported "some apprehension" with the elbow in extension and supination. There was no frank instability. He did report pain and clicking, and at times the examiner was able to elicit some crepitus about the elbow. X-rays of the left elbow showed slight lateral overhang of the radial head and some irregularity on the medial aspect of the elbow. There was also some irregularity of the olecranon, which was "most likely related to his previous fracture there 20 years ago." 

A July 2007 private "non vascular B scan" using ultrasonography revealed a fluid-filled gap at the anterior aspect of the insertion of the anterior band of the ulnar collateral ligament to the sublime tubercle of the ulna. The findings were compatible with ligamentous laxity of the ulnar collateral ligament. There was also a significant widening of the radiocapitellar joint measuring up to 8.2 millimeters compatible with ligamentous laxity of the radial collateral ligament. The interpreter diagnosed ligamentous laxity at the radial and ulnar sides of the elbow joint, and also suspected an intra-articular body within the radiocapitellar joint. 

At the May 2008 Board hearing, the Veteran stated that if he lifted more than ten pounds his left elbow became dislocated. He was no longer able to ride a motorcycle or mow the lawn, and could only use his right arm to take out the garbage. His left elbow also sometimes popped out on its own about one to three times a month, according to his testimony. He wore a brace on the left arm when doing "anything strenuous" with the right arm to ensure that the left elbow did not dislocate at those times.

In February 2009 and March 2009 the Veteran underwent relocations of his left elbow at private facilities under anesthesia after two nontraumatic dislocations. During the March 2009 procedure, gross instability was noted, and the most stable position was achieved with slight flexion of the elbow at approximately 95 degrees with supination. A long-arm cast was applied to maintain this position of stability and allowed to harden. 

At the September 2009 VA examination, the Veteran reported that he is required to go to the hospital three to four times a year for recurrent dislocations. He also reported four or more dislocations of his elbow during a given year which he was able to reduce himself without going to a hospital. The last such dislocation occurred about three to six weeks prior to this examination. He reported constant arthritic pain in the elbow with severe pain when it dislocated. He also reported deformity, giving way, instability, and decreased speed of joint motion of the left elbow, but denied locking, stiffness, or effusions. He reported weekly flare-ups which lasted hours and were precipitated by lifting, repetitive motion, and driving, and alleviated by rest. 

On examination, there was no loss of a bone or part of a bone. However, crepitus, tenderness, pain at rest, instability, weakness, abnormal motion, and guarding of movement were all noted. A cubitus varus deformity was also observed, and the examiner noted the deformity in accompanying photographs of the Veteran's arms. The examiner also noted that the Veteran had significant discomfort and widened open angle with stress. There was pain with supination, pronation, and flexion against resistance. On range of motion testing, the Veteran had flexion from 10 to 130 degrees, extension to 10 degrees, pronation to 70 degrees, and supination to 65 degrees. There was objective evidence of pain on motion. After repetitive motion, there were additional limitations with pain being the most important factor. Specifically, flexion was from 15 to 130 degrees, extension was to 15 degrees, pronation was from 0 to 70 degrees, and supination was from 0 to 65 degrees. 

The examiner also found "stable" ankylosis of the left elbow, noting that it was "locked" at 10 degrees of flexion with a significant cubitus varus deformity. 

The examiner diagnosed traumatic arthritis of the left elbow. In terms of occupational functioning, the left elbow arthritis caused decreased manual dexterity, problems with lifting and carrying, and difficulty reaching. With regard to daily activities, the arthritis had a moderate effect on chores, recreation, bathing, dressing, grooming and driving. The examiner also diagnosed left elbow lateral ulnar collateral ligament laxity and cubitus varus deformity which had severe effects on chores, recreation, bathing, dressing, grooming, and driving. 

A September 2009 VA treatment record reflects that the Veteran had "good range of motion" of the left elbow from 5 to 145 degrees. However, at full extension the Veteran began to feel apprehensive of dislocation. 

An October 2009 VA orthopedic surgery consultation report shows that the Veteran had active range of motion of the left elbow from 15 to 145 degrees. Passive motion was full. He had full pronation and supination. He also had crepitus and posterolateral rotator instability on examination. An x-ray study and CT scan showed a lot of heterotopic bone posteriorly, as well as a little anteriorily. 

In December 2009, the Veteran underwent left elbow surgery at VA consisting of collateral ligament reconstruction. As noted above, a total three-month convalescent rating was assigned based on this surgery under 38 C.F.R. § 4.30 (2012) (providing, in relevant part, that a total rating will be assigned for surgery requiring convalescence effective the date of hospital admission or outpatient treatment and continuing for up to three months from the first day of the month following hospital discharge or outpatient release). The total rating terminated on April 1, 2010, and the 20 percent rating previously assigned was reinstated. The Veteran has not argued and the evidence does not otherwise show that an extension of the total rating was warranted due to continued immobilization with a cast, incompletely healed surgical wounds, or any other factors set forth in section 4.30. 

In November 2010, the Veteran underwent a Medical Evaluation Board (MEB) examination at the Walter Reed Army Medical Center (WRAMC) to determine eligibility for early retirement from the National Guard based on his left elbow disability. The MEB report reflects that the Veteran denied any further dislocations of the left elbow since the December 2009 VA surgery, but continued to have persistent instability, weakness, decreased range of motion, and minimal to moderate pain. On examination, there was grade 1 laxity of the elbow with good end-point. There was no postero-lateral rotator instability observed on examination. Active motion was from 5 to 140 degrees. Supination and pronation were to 80 degrees. Crepitus on motion was noted. An x-ray study showed minor degenerative changes and normal alignment. The examiner concluded that the Veteran's left elbow was stable on physical examination, but that he would be unable to perform his required military duties due to painful arthritis. 

A July 2011 WRAMC occupational therapy record reflects that the Veteran had active range of motion of the left elbow from 20 to 130 degrees, and passive range of motion from 15 degrees to 140 degrees. There was full forearm rotation, wrist, and hand range of motion. The Veteran reported left elbow pain of 2 to 3 out of 10 on a scale of severity which increased to 7 out of 10 with repetitive lifting. Strength in the left elbow was 4 out of 5 with resisted flexion and extension. A click and a pop were noted by the treating therapist when the left side was tested and pain increased to a 7 out of 10. The Veteran had difficulty with prolonged gripping, lifting, and repetitive tasks. The therapist concluded that the Veteran had functional range of motion for most activities of daily living. However, he appeared to have a permanent loss of function in strength given the amount of time that elapsed since the December 2009 surgery. 

At the May 2012 VA examination, the Veteran reported that his left elbow dislocations had resolved since the December 2009 VA surgery. However, he had loss of range of motion of the elbow with about 10 degrees loss of full extension. He continued to feel popping and crepitus. He reported intermittent "achy" pain ranging from 0 to 7 out of 10. He took over-the-counter medication when the pain got up to a 5 which reduced the pain to 0. On the day of the examination it was a 1 out of 10. He further reported swelling caused by repetitive motion or when trying to lift something heavy such as a garbage bag. He denied locking up or giving way of the left elbow. He stated that he could perform all his activities of daily living without assistance. However, he continued to use a left elbow brace when doing "extertional" activities such as taking the garbage out, and had quit swimming. He could no longer play sports. He mowed the lawn with his right hand only. He could not shovel snow or do any carpentry around the house. 

On examination, flexion of the elbow was to 145 degrees without "increased pain" (by "increased" the examiner was presumably alluding to the baseline chronic pain of 1 out of 10 reported at the examination) and extension to 10 degrees. The examiner noted the abnormal extension, stating it should be to 0 degrees. Supination was to 85 degrees and pronation to 80 degrees without increased pain. The Veteran had difficulty holding against resistance and the left arm gave way. Hand grip was decreased to 3 out of 5. Pushing and pulling was a 5 out of 5 without increased pain, but lifting up against resistance caused some pain. Repetitive range of motion did not increase the pain or cause weakness, fatigue, lack of coordination, lack of endurance, or any further decrease in degrees of range of motion. An x-ray study did not show evidence of an acute fracture or dislocation. There was a deformity of the radial head consistent with old trauma. There was no joint effusion. The soft tissues were unremarkable. The examiner diagnosed residual pain, weakness, and decreased extension of the left elbow following the December 2009 surgery, as well as arthritis of the left elbow. 

Based on the above evidence, a rating in excess of 20 percent is not warranted under DC 5209, as the Veteran does not have flail joint. In February 2003, VA published a proposed amendment to the schedule for rating disabilities of the musculoskeletal system, and the proposal provides background information on the term "flail joint" as used in DC 5209. See 68 Fed. Reg. 6998 (February 13, 2003). Specifically, it was noted that the "criterion of 'flail joint' . . . refers to complete paralysis at the elbow, a neurologic condition that would be more appropriately evaluated under . . . the neurologic portion of the rating schedule." Id. at 7013. Thus, it was proposed to remove this criterion from the rating schedule. It was noted elsewhere in the proposed amendment that "flail joint" was an "obsolete term." Id. at 7015. 
The proposed amendment has not taken effect, and other definitions of "flail joint" cast some doubt on the interpretation of flail joint as referring to neurologic paralysis. Specifically, section 4.45 of the regulations, which pertains to the joints, provides in relevant part that consideration be given to whether there is more movement than normal of a joint, including "from flail joint." Medical dictionaries also define flail joint as "one showing abnormal mobility." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 986 (31st ed. 2007). (This definition is provided purely for definitional purposes to aid in the Board's discussion. See Kirwin v. Brown, 8 Vet. App. 148 (1995), Traut v. Brown, 6 Vet. App. 181 (1994). Use in this manner does not conflict with the holding in Thurber v. Brown, 5 Vet. App. 119 (1993). Moreover, flail joint is essentially already defined in this manner in section 4.45, as already noted.) Thus, the fact that flail joint would be productive of more movement than normal seems the exact contrary of flail joint being a condition of complete paralysis of the elbow, as stated in VA's February 2003 proposed amendment to the schedule. See 68 Fed. Reg. at 7013. 

Whether flail joint is defined as more movement than normal of the joint, or as complete neurologic paralysis of the elbow, the evidence does not show that either are present. The fact that the Veteran's elbow joint was given to recurrent dislocations and laxity prior to the December 2009 VA surgery does not equate to abnormal movement of the joint or any impairment of the actual joint as opposed to the ligaments. Moreover, as indicated in VA's February 2003 proposed amendment and by the fact that a 50 percent evaluation is assigned for flail joint, this rating is reserved for much more severe impairment of the joint. Finally, if "flail joint" as used in DC 5209 in fact refers to complete paralysis of the elbow, it is clear that the Veteran's left elbow has not exhibited paralysis during the pendency of this claim. Accordingly, the Veteran's left elbow arthritis and laxity does not approximate the criteria for a 50 percent rating under DC 5209 for flail joint. See 38 C.F.R. § 4.71a. Thus, the preponderance of the evidence weighs against assignment of a rating in excess of 20 percent under DC 5209 for other impairment of the elbow, and therefore the benefit-of-the-doubt rule does not apply. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. §§ 3.102, 4.3. 

While a higher rating is not warranted under DC 5209, separate ratings may be assigned for distinct manifestations of symptomatology stemming from the same injury which do not overlap with each other. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition); see also 38 C.F.R. § 4.14 (rule against pyramiding). An opinion of VA's General Counsel with regard to the rating criteria applicable to disabilities of the knees is instructive in this regard. In VAOPGCPREC 23-97 (July 1, 1997), it was found that separate ratings may be assigned under DC 5257, pertaining to instability of the knee, and DC 5003, pertaining to arthritis with limitation of motion under 38 C.F.R. § 4.71a, since these Diagnostic Codes applied "either to different disabilities or to different manifestations of the same disability." Id. Because DC 5257 did not contemplate limitation of range of motion, the assignment of separate ratings for a knee disability under both DC's would not violate the rule against pyramiding set forth in 38 C.F.R. § § 4.14. Id. 

In light of the discussion in VAOPGCPREC 23-97, separate ratings may also be applied for distinct manifestations of the Veteran's left elbow disability. The assignment of a 20 percent rating under DC 5209 for marked cubitus varus deformity does not contemplate either laxity of the elbow with recurrent dislocations or limitation of motion of the elbow. Rather, as suggested in the February 2003 proposed amendment to DC 5209, this condition affects the positioning of the hand, and thus any degree of cubitus varus deformity of the elbow is considered "marked." See 68 Fed. Reg. at 7013-14. 

With regard to the Veteran's ligamentous laxity of the elbow with recurrent dislocations, a separate 10 percent rating under DC 5211 is warranted prior to December 10, 2009 for malunion of the ulna with bad alignment, as this evaluation most closely approximates the Veteran's left elbow laxity. See 38 C.F.R. § 4.71a. Higher ratings under DC 5211 are not warranted, as the evidence fails to show nonunion of the ulna in either the lower or the upper half. See id. Rather, the evidence consistently shows-from the October 2006 VA orthopedic consultation to the July 2007 private sonogram to the December 2009 VA surgery report-that the Veteran's recurrent left elbow dislocations were caused by laxity of the ulnar collateral ligament rather than by pathology of the bone. The fact that the December 2009 surgical reconstruction of the left elbow ligaments resolved the laxity and dislocations confirms that the Veteran's symptoms were not due to nonunion of the ulna in the upper or lower half or with regard to the radius. However, because there is no diagnostic code pertaining to the elbow that directly addresses impairment of the ligaments, the Board assigns a separate 10 percent rating for malunion of the ulna with bad alignment under DC 5211 as the most closely analogous code. See 38 C.F.R. § 4.20 (2012) (providing that when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). 

Because the Veteran's left elbow laxity with recurrent dislocations resolved following the December 2009 VA surgical reconstruction of the left elbow ligaments, a separate 10 percent rating under DC 5211 is not warranted as of April 1, 2010, which is the date of termination of the total convalescent rating. 

The Veteran's left elbow arthritis with painful and limited motion also warrants a separate 10 percent rating throughout the pendency of this appeal. While the RO combined DC 5010 (pertaining to arthritis) with DC 5209 in assigning the 20 percent rating, these are distinct disorders warranting separate ratings. Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, 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. See id. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. 

In application of Diagnostic Code 5003, the Court has held that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. In Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court held that although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. 

The Veteran does not have compensable limitation of motion of the left elbow under any of the diagnostic codes pertaining to range of motion. Specifically, DC 5206 applies to limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Under DC 5206, limitation of flexion of the forearm to 45 degrees is assigned a 40 percent rating for the minor extremity. Limitation of flexion to 55 degrees is assigned a 30 percent rating for the minor extremity. Limitation of flexion to 70 degrees is assigned a 20 percent for the minor extremity. Limitation of flexion to 90 degrees is assigned a 20 percent rating for both arms. Limitation of flexion to 100 degrees is assigned a 10 percent rating for both arms. Limitation of motion to 110 degrees is assigned a noncompensable rating for both arms. Id.

Diagnostic Code 5207 pertains to limitation of extension of the forearm. See 38 C.F.R. § 4.71a. Under DC 5207, a 40 percent rating is assigned for extension of the minor forearm limited to 110 degrees. A 30 percent rating is assigned for extension of the minor forearm limited to 100 degrees. A 20 percent rating is assigned for extension of the minor forearm limited to 75 or 90 degrees. A 10 percent rating is assigned when extension of the major or minor forearm is limited to 45 or 60 degrees. Id.

Under Diagnostic Code 5208, a 20 percent rating is assigned when flexion of the forearm is limited to 100 degrees and extension limited to 45 degrees. Id.

Diagnostic Code 5213 applies to impairment of supination and pronation. See id. Under DC 5213, loss of pronation beyond the middle of the arc is assigned a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Loss of pronation beyond the last quarter of the arc, where the hand does not approach full pronation, is assigned a 20 percent evaluation for both extremities. Limitation of supination of 30 percent or less is assigned a 10 percent rating for both arms. Id.

Plate I in 38 C.F.R. § 4.71a shows that normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal pronation of the forearm is to 80 degrees of pronation and 85 degrees of supination. 

Because the evidence shows that the Veteran consistently had flexion beyond 110 degrees, and usually full flexion to 145 degrees, with no additional limitation after repetitive testing, a compensable rating is not warranted under DC 5206. Likewise, a compensable rating is not warranted under DC 5207 for limitation of extension, as the Veteran's extension has consistently exceeded 45 degrees even after repetitive motion. At its worst, it has been limited to 15 degrees. Thus, a compensable rating is not warranted under DC 5207. 

A compensable rating is also not warranted under DC 5208, as the evidence does not show flexion limited to 100 degrees and extension limited to 45 degrees, as discussed above. 

With regard to limitation of pronation and supination, only the September 2009 VA examination report reflects that the Veteran had limitation of supination or pronation. However, the evidence of record otherwise shows normal pronation and supination both prior to and after the September 2009 VA examination, including in the October 2009 VA orthopedic surgery consultation report dated about a month later, which showed full pronation and supination. The Veteran has not argued that he has limitation of pronation or supination. Thus, the preponderance of the evidence shows that his left elbow disability is not manifested by limitation of pronation or supination. The fact that the September 2009 VA examiner also diagnosed ankylosis of the left elbow, which has also not otherwise been shown, as discussed in more detail below, casts further doubt on the credibility or accuracy of the findings of limitation of pronation or supination in this examination report. Likewise, a staged rating is also not warranted, as the Veteran had normal pronation and supination one month after the September 2009 VA examination, which is a period of time too short to indicate that the Veteran's left elbow disability has actually been manifested by limitation of pronation or supination, especially in light of the otherwise normal findings in this regard. 

In the absence of compensable limitation of motion under the above Diagnostic Codes, a separate 10 percent rating is warranted under DC 5003 for arthritis of the left elbow with painful and limited motion, including extension limited to 10 degrees. See 38 C.F.R. § 4.71a. A separate 20 percent rating under DC 5003 may not be assigned, as the Veteran does not have arthritis of two or more major joints or two or more minor joint groups. See id.

The criteria set forth in sections 4.40 and 4.45 of the regulations do not afford a basis for a rating in excess of the separate 10 percent rating already assigned for limited and painful motion. See DeLuca, 8 Vet. App. at 206-07; see also Johnson v. Brown, 9 Vet. App. 7 (1996) (holding that the provisions of sections 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes pertaining to limitation of motion). The June 2007 and May 2012 VA examination reports show that the Veteran did not have additional limitations of motion due to pain, weakness, fatigability or incoordination after repetitive testing. The September 2009 VA examination report shows additional limitations of flexion to 130 degrees and extension to 15 degrees after repetitive testing, with the most important factor being pain in the increased limitations. The July 2011 WRAMC occupational therapy record also shows range of motion of 20 to 130 degrees, and reflects a finding that the Veteran had permanent loss of function in strength of the left arm. However, even with these additional limitations, the Veteran's ranges of motion of the elbow well exceeded the criteria for compensable ratings under DC's 5206 (limitation of flexion) and 5207 (limitation of extension). Thus, the objective clinical findings throughout the pendency of this claim do not show that the criteria for higher ratings based on range of motion have been met even after repetitive testing. 

The evidence also does not show that the Veteran's reported flare-ups are indicative of an overall disability level higher than the separate 10 percent rating assigned for painful and limited motion. See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). He denied flare-ups at the June 2007 VA examination, but at the September 2009 VA examination reported weekly flare-ups which lasted hours and were precipitated by lifting, repetitive motion, and driving, and alleviated by rest. The 10 percent rating already assigned takes into account such flare-ups, as there is no evidence that the Veteran has additional limitation of motion beyond the ranges captured in numerous treatment records and VA examination reports, as discussed above. 

Thus, even with reported weekly flare-ups, the most probative evidence of record in the form of the treatment records and examination reports shows that the Veteran's left elbow disability is not manifested by limitations in range of motion, to include as a result of pain, weakness, fatigability, or incoordination, beyond the limitations already described. Importantly, the Veteran's left elbow laxity and recurrent dislocations prior to the December 2009 VA surgical reconstruction are already compensated in the assignment of a separate 10 percent rating under DC 5211 for malunion of the ulna with bad alignment. See 38 C.F.R. § 4.71a. Moreover, a separate or higher rating for pain or lack of strength by themselves is not warranted, as these symptoms are factored into the evaluation of his left elbow disability under the DC's pertaining to elbow disorders. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (observing that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes pertaining to musculoskeletal function); see also Mitchell, 25 Vet. App. at 43 (pain must actually affect the normal working movement of the body part in question to warrant a higher rating). 

In sum, a separate rating in excess of 10 percent for the Veteran's left elbow arthritis with painful and limited motion is not warranted under sections 4.40 and 4.45. See DeLuca, 8 Vet. App. at 206-07.

The September 2009 VA examiner also found that the Veteran had "stable ankylosis" of the left elbow because his extension was limited to 10 or 15 degrees. Diagnostic Code 5205 pertains to ankylosis of the elbow. See 38 C.F.R. § 4.71a. Under DC 5205, a 50 percent rating is assigned for unfavorable ankylosis at an ankle less than 50 degrees or with complete loss of supination or pronation of the minor extremity. A 40 percent rating is assigned for intermediate ankylosis at an angle of more than 90 degrees or between 70 and 50 degrees of the minor extremity. A 30 percent rating is assigned for favorable ankylosis at an angle between 90 degrees and 70 degrees of the minor extremity. Id.

Assuming that the Veteran had ankylosis of the elbow, the evidence does not show unfavorable ankylosis at an angle less than 50 degrees, intermediate ankylosis at an angle of more than 90, or between 70 and 50 degrees, or favorable ankylosis at an angle between 90 and 70 degrees. See id. 

Moreover, the preponderance of the evidence shows that the Veteran does not have ankylosis. Apart from the September 2009 VA examiner, no examiner or treating physician has diagnosed ankylosis in the numerous treatment records and examination reports in the file dated both prior to and after the September 2009 VA examination report. Significantly, a September 2009 VA treatment record states that the Veteran was able to fully extend his elbow, but that he became apprehensive of it dislocating in this position. This record casts serious doubt on the September 2009 VA examiner's finding that the Veteran's left elbow was fixed at 10 degrees extension. The fact that the Veteran consistently has had range of motion of the elbow from 10 or 15 degrees to 130 or 140 degrees further weighs against the presence of ankylosis. In this regard, ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is also defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran's left elbow is not immobile or fixed but rather has a substantial range of motion as shown by the fact that the criteria for compensable ratings have not been met under DC's 5206 and 5207 for limitations of flexion and extension. Accordingly, a separate or higher rating is not warranted under DC 5205 for ankylosis of the elbow. 

Separate or higher ratings are not warranted under any other diagnostic code. The Veteran does not have nonunion of the radius and ulna with false flail joint or impairment of the radius. Thus, DC 5210 (nonunion of the radius and ulna) and DC 5212 (impairment of the radius) are not applicable. See 38 C.F.R. § 4.71a.

The functional limitations described by the Veteran, including difficulty lifting objects above 10 pounds with the left arm, the need to wear a brace when doing strenuous activity with his right hand, and an inability to swim, drive a motorcycle, shovel snow, or mow the lawn with his left arm are all concomitants of the painful and limited motion and left elbow laxity already compensated in the ratings assigned, as shown above. See 38 C.F.R. § 4.1. As noted in the July 2011 WRAMC occupational therapy record, which showed the most limited range of motion with flexion limited to 130 degrees and extension limited to 20 degrees, the Veteran's left elbow still had "functional range of motion for most activities of daily living." The objective clinical findings documented by the medical professionals who have evaluated the Veteran's left elbow disability provide the most accurate and therefore probative evidence of its severity, and this severity has been compensated to the extent allowed by VA law in the ratings currently assigned. See 38 C.F.R. § 4.1.

The July 2011 WRAMC occupational therapy record and the May 2012 VA examination report both note decreased grip strength in the left hand. The July 2011 WRAMC record indicates that the Veteran's decrease in left grip strength and tingling of the fingers may be associated with a disorder of the ulnar nerve. As discussed in the INTRODUCTION to this opinion, the issue of whether the Veteran has a separate neurological disorder associated with his service-connected left elbow disability is referred to the AOJ for appropriate action. This issue is not encompassed by the current claim. 

To summarize, a separate 10 percent rating under DC 5211 is warranted for the Veteran's left elbow laxity prior to the December 10, 2009 VA surgery. However, a separate rating under DC 5211 is not warranted as of April 1, 2010, when the total convalescent rating was discontinued, as his left elbow laxity resolved following the ligament reconstruction. A separate 10 percent rating for left elbow arthritis with painful and limited motion is also warranted throughout the pendency of this claim. A rating in excess of 20 percent under DC 5209 is not warranted, nor are separate or higher ratings warranted under any other diagnostic code. Thus, further staging is not appropriate during the pendency of this claim. See Fenderson, 12 Vet. App. at 126. 

In evaluating the Veteran's left elbow disability, the Board must consider whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised. See 38 C.F.R. §§ 3.340, 4.16 (2010). In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. 

The May 2012 VA examination report and other evidence shows that the Veteran works as a social worker and mental health therapist, and was previously enrolled in school to pursue a degree in this field. He has not argued and the evidence does not otherwise suggest that his left elbow disorder is sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. See 38 C.F.R. §§ 3.340, 4.16. Thus, the issue of entitlement to TDIU has not been raised. See id.

The Board has also considered whether referral for an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). 

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. 

Referral for extraschedular consideration is not warranted. To the extent the Veteran's left elbow disability has been manifested by pain, weakness, lack of endurance, fatigability, incoordination, and limited range of motion, these symptoms and functional impairment are expressly addressed by the schedular criteria, including sections 4.40, 4.45, 4.59 of the regulations, and DC's 5003, 5206, and 5207 in section 4.71a. The Veteran's ligament laxity with recurrent dislocations prior to December 10, 2009 have been compensated with the assignment of a 10 percent rating under DC 5211 for malunion of the ulna with bad alignment. Finally, his varus deformity has been compensated with a 20 percent rating under DC 5209 for marked cubitus varus deformity. There are no other symptoms shown in the evidence of record. 

As discussed above, the Veteran's reported functional limitations are concomitants of the symptoms already compensated under the applicable diagnostic codes and thus are within the purview of the schedular criteria. See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Thus, there are no symptoms or their effects left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Rather, the disability must be "exceptional" or "unusual." 

In short, a comparison of the Veteran's left elbow disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Moreover, such factors have not been alleged by the Veteran or otherwise shown or suggested by the evidence of record. Therefore referral for extraschedular consideration is not warranted. See id.


ORDER

Entitlement to a separate rating of 10 percent for left elbow laxity with recurrent dislocations is granted prior to December 10, 2009, and discontinued as of April 1, 2010, subject to the laws and regulations governing payment of monetary benefits. 

Entitlement to a separate rating of 10 percent for arthritis of the left elbow with painful and limited motion is granted for the entire period on appeal, subject to the laws and regulations governing payment of monetary benefits.

Entitlement to a rating in excess of 20 percent for other impairment of the elbow is denied. 




____________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs