Citation Nr: 1312202	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  08-02 482	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating higher than 10 percent for residuals of a right elbow and forearm injury.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty in the military from February to October 1981.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO granted an increased rating of 10 percent for the residuals of a right elbow and forearm injury, retroactively effective from March 31, 2005.  The Veteran appealed for an even higher rating for this disability.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary).

Regarding the remaining claim of entitlement to a TDIU, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record.  A claim for a TDIU is, in essence, a claim for an increased rating.  Norris v. West, 12 Vet. App. 413, 420 (1999).  See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran:  (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD).  Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim.  But there must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).

Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated, at least in part, on the service-connected disability for which the Veteran is requesting a higher rating in this appeal.  The RO or Appeals Management Center (AMC), though the Agency of Original Jurisdiction (AOJ), has not had opportunity to consider whether the Veteran is additionally entitled to a TDIU, and it would be potentially prejudicial to her for the Board to consider this additional issue in the first instance.  Bernard v. Brown, 4 Vet. App. 384 (1993); Godfrey v. Brown, 7 Vet. App. 398 (1995).  Moreover, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim, although this does not preclude the Board from going ahead and deciding the claim that formed the basis of the derivative TDIU claim.  See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 
12-2001 (July 6, 2001).  The Veteran's other service-connected disability is carpal tunnel syndrome (CTS) and ulnar abutment of her non-dominant left wrist, which, like the residuals of the injury to her right elbow and forearm, is rated as 
10-percent disabling.  And as her TDIU claim therefore necessarily requires consideration of this other service-connected disability not considered in this decision, as well as objective evidence that her service-connected disabilities alone "are of sufficient severity to produce unemployability," see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), the Board is remanding this derivative TDIU claim to the RO via the AMC in Washington, DC, for the necessary initial development and consideration.



FINDING OF FACT

Even considering her pain, the Veteran's right forearm and elbow flexion is not limited to 90 degrees or less; she also does not have any limitation of extension, impairment of the flail joint, ulna, or radius, and no supination or pronation has been objectively confirmed.


CONCLUSION OF LAW

The criteria are not met for a rating higher than 10 percent for the residuals of the right forearm and elbow injury.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5299-5206 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate the claim, (2) the information and evidence VA will obtain, and (3) the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008), eliminating the so-called "fourth" requirement that VA also request that she submitted all relevant evidence in her personal possession).


A letter dated in June 2005 satisfied this duty to notify obligation.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The letter advised her of the information and evidence needed to substantiate her claim and of her and VA's respective responsibilities in obtaining this supporting evidence.  To this end, the letter requested that she provide enough information for the RO to request records from any sources she identified, including medical records, employment records, and records from other Federal agencies.

The Court (CAVC) has held that the VCAA notice, if provided concerning a claim of entitlement to service connection for a particular disability, also should include information concerning the disability rating and effective date elements of the claim, which are "downstream" elements once service connection is granted.  See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  This claim did not arise in that context, however, instead, from the very outset as a claim for a higher, i.e., increased rating for an already established service-connected disability.  And specifically with regards to the notice requirements for increased-rating claims, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's (CAVC's) previous decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that "generic" notice in response to a claim for an increased rating is all that is required, and that VA does not have to apprise the Veteran of alternative DCs or request evidence of how the disability at issue impacts daily life.  In any event, a March 2006 letter provided Dingess notice.  That letter was not sent prior to initially adjudicating this claim in the September 2005 rating decision at issue in this appeal, but as the claim since has been readjudicated in the December 2007 statement of the case (SOC), and even more recently in the November 2012 supplemental SOC (SSOC), this, in effect, rectified ("cured") the timing defect in the provision of the notice because it preserved the intended purpose of the notice such that the Veteran was still given ample opportunity to participate effectively in the adjudication of her claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

The Board therefore concludes she has received all required notice concerning her claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

VA also has satisfied its duty to assist her with this claim by making reasonable efforts to identify and obtain relevant records and providing a VA examination.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i).  To this end, her service treatment records (STRs), VA treatment records, Social Security Administration (SSA) records, and private treatment records were obtained and associated with her claims file for consideration.  Indeed, one of the Board's reasons for remanding this claim in September 2011 was to obtain all outstanding VA and private treatment records.  A remand by the Board confers on the appellant the right to compliance with the remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Here, the remand was to obtain copies of all relevant VA or private treatment records dated since November 2007 and to have the Veteran undergo another VA compensation examination reassessing the severity of her disability.  These requested records were obtained and the additional VA examination provided.

That additional VA examination was in October 2011, and there was a prior one in June 2005.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture.  See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012).  These VA examinations and the medical opinions resultantly obtained concerning the severity of the Veteran's disability are more than adequate, as they collectively are predicated on a review of her medical records and evaluation and treatment history.  The examiners considered all of the pertinent evidence of record, including her personal statements, and examined her personally.  

They also provided rationale for their opinions, relying on the findings from their evaluations of her disability and, when necessary, citing to these findings and the other records supporting their conclusions.

There is no obligation to have her reexamined, yet again, simply as a matter of course or merely because of the passage of time since an otherwise adequate examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).  And according to the records in the file, there is no suggestion of a material change in her disability since her most recent VA compensation examination in October 2011.  So reexamination is not required.  38 C.F.R. § 3.327(a).

Under the circumstances of this case, then, the record has been fully developed, and it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence she should submit to substantiate her claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See, too, Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand - especially like here, another remand - would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, just further overburden VA's already limited resources).  The Board, therefore, may proceed with its adjudication of this claim.


Merits of the Claim

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  But where entitlement to compensation already has been established and an increase in disability rating is at issue, as here, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical, that is, temporal focus, is the evidence generated during the appeal period and, more specifically, since one year prior to filing this increased-rating claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  If there have been occasions since when the disability has had differing degrees of severity, then the Board must "stage" the rating to compensate the Veteran for this variance.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus, VA's determination of the "present level of disability" may result in concluding the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending.  Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that Veteran had disability "at some point during the processing of his claim," satisfied service-connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In Hart, the Court found no basis for drawing a distinction between initial ratings (see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)) and increased-rating claims for applying staged ratings.  Accordingly, it was held that a staged rating is appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or here, her] earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion.  Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations.

The Court has held that DCs predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

Generally, the Board is directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).


Elbow and forearm disabilities are rated under DCs 5205 through 5213.  When determining the proper rating for an elbow and forearm disability, it is necessary to consider each applicable DC.  The choice of DC should be upheld if supported by explanation and evidence.  See Butts v. Brown, 5 Vet. App. 532, 539(1993).  Any change in DC must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran has a 10 percent rating for the residuals of her right elbow and forearm injury under DC 5299-5206.  Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

As the Veteran's right arm is her major (meaning dominant) extremity, the Board will only consider the criteria pertaining to the major extremity.  See, e.g., the report of her October 2011 VA examination of her right elbow and forearm.

The normal range of motion for the elbow is flexion to 145 degrees and extension to zero degrees.  Normal pronation is from zero to 80 degrees and normal supination is from zero to 85 degrees.  38 C.F.R. § 4.71, Plate I.

DC 5205 pertains to ankylosis of the elbow.  If favorable at an angle between 90 degrees and 70 degrees, then a 40 percent rating is warranted.  If intermediate at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, then a 50 percent rating is warranted.  And if unfavorable at an angle of less than 50 degrees or with complete loss of supination or pronation, then a 60 percent rating is warranted.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

Under DC 5206, limitation of flexion of the forearm of the major extremity to 110 degrees is assigned a 0 percent (i.e., noncompensable) evaluation; a 10 percent evaluation is for application when flexion is limited to 100 degrees; a 20 percent evaluation is applied when flexion is limited to 90 degrees; a 30 percent evaluation is applied when flexion is limited to 70 degrees; a 40 percent evaluation is warranted when flexion is limited to 55 degrees; and a 50 percent evaluation is warranted when flexion is limited to 45 degrees.

Under DC 5207, limitation of extension of the forearm of the major extremity to 45 degrees or 60 degrees warrants a 10 percent evaluation; a 20 percent evaluation is for application when extension is limited to 75 degrees; a 30 percent evaluation is for application when extension is limited to 90 degrees; a 40 percent evaluation is warranted when extension is limited to 100 degrees; and a 50 percent evaluation is warranted when extension is limited to 110 degrees.

Under DC 5208, a 20 percent evaluation is warranted when forearm flexion is limited to 100 degrees and extension is limited to 45 degrees in the major extremity.

Under DC 5209 joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, of the major arm warrants a 20 percent rating and other impairment of flail joint warrants a 60 percent rating.  

Under DC 5210 nonunion of the radius and ulna with flail false joint of the major arm warrants a 50 percent rating. 

Under DC 5211 impairment of the ulna of the major arm with malunion and bad alignment warrants a 10 percent rating; with nonunion in lower half with false movement warrants a 20 percent rating; with nonunion in upper half with false movement without loss of bone substance or deformity warrants a 30 percent rating; and nonunion in upper half with false movement with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent rating.

Under DC 5212 impairment of the radius of the major arm with malunion and bad alignment warrants a 10 percent rating; with nonunion in upper half and false movement warrants a 20 percent rating; with nonunion in lower half with false movement without loss of bone substance or deformity warrants a 30 percent rating; and nonunion in lower half with false movement with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent rating.

Under DC 5213, a 10 percent rating is warranted for limitation of supination of the major arm to 30 degrees or less; a 20 percent rating is warranted for limitation of pronation with motion lost beyond last quarter of the arc (i.e., the hand does not approach full pronation or motion lost beyond middle of arc), a 30 percent rating is warranted for limitation of pronation with motion lost beyond the middle of the arch, a 20 percent rating is warranted if with bone fusion the hand is fixed near the middle of the arc for moderate pronation, a 30 percent rating is warranted if with bone fusion the hand is fixed in full pronation; and a 40 percent rating is warranted if with bone fusion the hand is fixed in supination or hyperpronation.

The Veteran was previously afforded a VA examination in June 2005.  The examiner noted that the Veteran had a bookcase fall on her during service and subsequently had to have surgery on her right elbow, a nerve transposition.  She reported persistent numbness and tenderness in her forearm, elbow, hand, and fingers.  She further reported elbow and forearm pain.  She slept with bilateral 
cock-up splints, but because of her bilateral CTS.  As already alluded to, the CTS and ulnar abutment affecting her non-dominant left wrist has been determined to be a service-connected disability, but the CTS affecting her right wrist has not been determined to be a service-connected disability.  She indicated that she was unable to open jars and things, unable to cut with her right hand, unable to grip, unable to button shirts with her right hand, and unable to lift anything with her right hand.  When pain flares, she is unable to use her arm at all.  On objective physical examination it was observed she had a 7 x 1 cm well-healed, nontender, surgical scar over the lateral epicondyle of her right elbow.  She reported tenderness throughout her arm from her elbow distally, with numbness throughout her hand.  

She exhibited flexion of the elbow to 100 degrees with pain, extension to 0 degrees with pain, pronation of 0-90 degrees, and supination of 0-90 degrees.  She further exhibited 5/5 motor strength in both extremities.  Palmar and dorsiflexion at the wrist was to 30 degrees, ulnar deviation to 30 degrees and radial deviation to 10 degrees, with pain throughout and 4+motor strength in all planes.  She exhibited full passive motion of her fingers and markedly decreased active range of motion of her fingers.  She was unable to make a fist at all.  She was in such great pain due to the testing that she was crying at the end.  The examiner diagnosed status post right elbow surgery with right CTS and right forearm pain.  But an addendum noted no pain in range of motion or flare-ups on any of the above joints, except as stated, and no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use.  X-rays taken during that examination revealed mild osteoarthritis of the right elbow; there was unremarkable examination of the right forearm, and normal views of the right wrist.

A September 2006 VA progress review report noted complaints of right arm pain when extended, but noted no redness or swelling.  The Veteran reported right elbow pain in an October 2006 VA progress review note, but upon examination the examiner noted an essentially normal right elbow except for minimal tenderness in the antecubital fossa.  An October 2006 X-ray report noted a negative right elbow.  The record further indicated that November 2008 and February 2011 electromyogram (EMG) tests revealed normal studies with regards to the Veteran's elbow and forearm.  A February 2011 occupational therapy note revealed a full composite grip with regards to range of motion; her wrist had a functional extension, flexion, ulnar, radial deviation, pronation, and supination.

She as mentioned more recently had another VA compensation examination in October 2011 reassessing the severity of her right elbow and forearm disability.  The examiner observed the Veteran had undergone surgery in July 2000 for release of de Queirvain's, right lateral epicondylectomy with fasciotomy.  She reported right elbow pain that started in her shoulder and neck and went into her hands.  

She had numbness at night, tingling, and pain that would not go away.  She reported that flare-ups did not impact the function of her elbow or forearm.  She exhibited right elbow flexion to 140 degrees with no objective evidence of painful motion, extension to 0 degrees with no objective evidence of painful motion.  She was able to perform repetitive-use testing with three repetitions and still exhibited flexion to 140 degrees and extension to 0 degrees.  There was no additional limitation in range of motion of the elbow and forearm following repetitive-use testing.  She had no functional loss and or functional impairment of her elbow and forearm.  There was localized tenderness and pain on palpation of joints and soft tissue of the right elbow and forearm.  She exhibited normal muscle strength.  There was no ankylosis of the right elbow.  She did not have flail joint, joint fracture, or impairment of supination or pronation.  The examiner again noted the Veteran had undergone right elbow arthroscopic surgery in years past, but that there were no residual signs and/or symptoms associated with that surgery.  Regarding the 
post-surgical scar, the examiner indicated it was not painful or unstable.  X-rays revealed right forearm negative, but mild osteoarthritic changes of the right elbow.  EMG tests had normal results.

Private treatment records from the Southeastern Arthritis Center indicate the Veteran reported in February 2010 that she had pain in her hand and forearm.  
X-rays revealed bilateral minimal osteoarthritic abnormalities identified within her hands and wrist.  There was no mention of the forearm or elbow.  A February 2010 private treatment record from Southeastern Rehabilitation noted complaints of pain in her right forearm.  Upon examination it was noted that range of motion in the elbows and wrists was full and symmetrical.  A nerve conduction study (NCS) was performed that revealed abnormal right median nerve, sensory, and motor.  Basically, there was electrophysiological evidence of compression neuropathy of the right median nerve at the wrist.  There was also a finding of neuropraxia in the right median nerve.  NCS of the right ulna nerve, sensory, and motor remained well within normal limits.  An EMG of the right upper extremity showed no evidence of radicular or plexus involvement.  Subsequent private treatment records dating from March 2010 to June 2011 noted only that the Veteran's hands were numb.

When considering this evidence in its entirety, the Board finds that the Veteran's right elbow and forearm injury residuals are appropriately rated as 10-percent disabling.  This disability has not warranted a higher disability rating at any time during the pendency of this appeal.  The evidence of record throughout the duration of this appeal, including her personal lay statements, outpatient treatment reports, private treatment records, and VA examination reports, indicate she has complaints of pain and tenderness in these areas with objective findings of limitation of motion of her forearm - but with flexion, at worst, limited to 100 degrees with pain and extension to 0 degrees with pain.  The most recent evaluation of her range of motion revealed greater flexion to 140 degrees and with no objective evidence of painful motion and extension to 0 degrees also with no objective evidence of painful motion.  There was X-ray evidence of osteoarthritis and objective evidence of pain, but no consequent additional limitation of motion even after repetitive motion.  This disability, then, has not limited her flexion to 90 degrees or extension to 75 degrees so as to warrant a higher disability rating under DCs 5206 or 5207.

In addition, the June 2005 VA examiner found that there was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use.  And, again, the October 2011 VA examiner also found she was able to perform repetitive-use testing with three repetitions and still exhibited flexion to 140 degrees and extension to 0 degrees.  There was no additional limitation in range of motion of her elbow and forearm following repetitive-use testing.  She had no consequent functional loss or functional impairment of her elbow and forearm compatible with a rating higher than 10 percent.  In fact, the range-of-motion findings after repetition indicate no change in degrees in her flexion or extension.  Thus, the record does not reflect any additional limitation of motion and the VA examinations do not demonstrate any other limitation of function of her right forearm and elbow that would support assigning a rating greater than 10 percent.


Absent degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, which is not the case here as the Veteran's right elbow and forearm disability consists of only one joint/joint group, a higher disability rating is not warranted under DCs 5003 and 5010.  The highest rating she receives in this circumstance under these DCs is 10 percent, so the rating she already has, which accepts that she has arthritic pain, even if it does not resultantly cause a compensable level of limitation of motion.  This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion or a less than compensable level of limitation of motion.  Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991).

The Board also has considered whether there are other appropriate DCs for application.  However, as the Veteran's service-connected disability does not involve ankylosis (the October 2011 VA examiner expressly ruled this out), forearm flexion limited to 100 degrees and extension limited to 45 degrees, impairment of flail joint or joint fracture, impairment of the radius or ulna or supination or pronation impairment, and has not at any time during the pendency of this appeal, DCs 5205, 5208, 5209, 5210, 5211, 5212 and 5213 do not apply.  On VA examination in October 2011, the VA examiner did not check any of the boxes indicative of impairment of supination or pronation.

So even acknowledging the Veteran's subjective complaints, the medical evidence of record does not reflect any additional functional impairment, such as additional limitation of motion on repetitive motion, which would support a higher evaluation at any time since one year prior to the filing her increased-rating claim.  The VA examiners observed pain during their range-of-motion testing, but as importantly did not indicate there was additionally decreased motion of the right elbow and forearm as a consequence, seeing as though this was not evidenced by the 
range-of-motion findings.  See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.

The Board is mindful of the Veteran's lay testimony concerning her particular symptoms and their effects on her social and occupational functioning and 
day-to-day activities.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  She is competent to comment on what she observes or experiences; for example, she is competent to report experiencing certain symptoms such as pain with and without motion, etc.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The competency and credibility of evidence determines its ultimate probative value.  See Id. (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The Board notes her statements that her range of motion as noted in the medical evidence was flexion limited to 90 degrees, extension limited to 45 degrees, with evidence of ankylosis.  See January 2008 VA Form 9.  However, the medical evidence does not support these statements.  As explained, the medical evidence shows that, at worst, her flexion is limited to 100 degrees with pain and extension to 0 degrees with pain.  And given that she has range of motion, albeit less than normal range of motion, by definition her right elbow and forearm are not ankylosed.  To reiterate, ankylosis is stiffening or fixation of the 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) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].


It also must be borne in mind that she has CTS of her right wrist, and although the CTS and ulnar abutment affecting her non-dominant left wrist has been determined to be a service-connected disability, the same is not true of the CTS also affecting her right wrist.  So the impairment attributable to the CTS affecting her right wrist cannot be used as grounds or reason for increasing the rating for the residuals of the injury to her right elbow and forearm inasmuch as it has not been determined the CTS affecting her neighboring right wrist is also the result of this service-connected injury or part and parcel of this service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).

While acknowledging her contentions, the Board also must consider the medical evidence, so objective findings that often have not borne out the extent of disability she is alleging, which is not to say she has no disability at all, quite the contrary, only not to the degree claimed according to this other evidence.  Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board).  Many of the rating criteria are objective, such as the extent of her range of motion even when considering the effect of her subjective pain, so the determination is based on the results of objective testing, namely, range of motion measured in degrees.  So, in sum, her mere lay testimony cannot sustain her claim.

In evaluating this claim for a higher rating for her disability, the Board also has considered whether she is entitled to a greater level of compensation on an 
extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1).  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

As held in Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for this service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the Rating Schedule for this disability shows that the rating criteria reasonably describe her disability level and symptomatology.  Her primary complaint is of chronic pain and consequent limitation of motion, but for the reasons and bases already discussed her pain does not cause the amount of additional functional impairment or loss, including the required restriction in her range of motion, for a higher rating under the schedular standards.  And even her other complaints, such as weakness in her grip strength, etc., are contemplated by the DCs mentioned.


Moreover, even if the schedular evaluation for this disability is inadequate (which again it is not), she does not exhibit other related factors such as those provided by the regulation as "governing norms."  Most, if indeed not all, of the evaluation and treatment she has received for this disability been on an outpatient basis, not as an inpatient, certainly not frequent inpatient.  So the record does suggest she has required frequent hospitalization.  And while the Board acknowledges her complaints that her right elbow and forearm disability causes interference with her employment, along with her other service-connected disability, this, too, is contemplated by the existing 10 percent schedular rating.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule 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.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).  Moreover, the derivative issue of her entitlement to a TDIU, which will consider the combined effect of her service-connected disabilities on her employability, is being remanded for appropriate development and consideration.  As it stands, however, because she only has a 10 percent rating for the residuals of the injury to her right elbow and forearm and a 10 percent rating for the CTS and ulnar abutment affecting her non-dominant left wrist, which combine to just 20 percent under 38 C.F.R. § 4.25 (VA's combined ratings table), she can only at the moment receive a TDIU on an extra-schedular basis, so under the alternative provisions of 38 C.F.R. § 4.16(b) rather than subpart (a).

The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)  . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.")

Hence, the Board is not obligated to refer this increased-rating claim for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1), but is instead indicating there necessarily needs to be additional consideration of whether the Veteran is entitled to a TDIU, including also on an extra-schedular basis, but rather under the provisions of § 4.16(b).  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

In the meantime, all things considered, the record as a whole does not show symptoms that equal or more nearly approximate the criteria for an evaluation higher than 10 percent at any time since one year prior to receipt of this increased-rating claim.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  That is to say, the Veteran's right elbow and forearm disability has been no more than 10-percent disabling since that immediately preceding year, so her rating cannot be "staged" because this represents her greatest level of functional impairment attributable to this condition.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and the claim accordingly must be denied.  38 C.F.R. § 4.3.


ORDER

The claim for a rating higher than 10 percent for the residuals of the right elbow and forearm injury is denied.



REMAND

The October 2011 VA compensation examiner indicated that, according to the Veteran, her right elbow and forearm disability adversely impacts her employment.  She indicated that she had worked as a chemist until 1999 when she became unable to continue working at her job because of her right arm.  She therefore, according to the holding in Rice and its progeny, has raised the additional issue of her entitlement to a TDIU.  This derivative claim requires further development before being decided, however.

A TDIU may be granted upon a showing that a Veteran is unable to obtain or maintain a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19.  Consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or impairment caused by nonservice-connected disabilities.  Rating boards are required to submit to the Director of the Compensation and Pension (C&P) Service, for extra-schedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  The Court has held that, when a Veteran does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b), but may refer the claim to the C&P Director for extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1 (2001).  As already explained, the Veteran does not currently meet the schedular standards for a TDIU so can only receive this benefit at the moment on an extra-schedular basis under the alternative special provisions of § 4.16(b).


It is unclear whether she is currently employed and, even if she is, in what specific capacity to allow for determining whether it is substantially gainful employment versus employment, instead, which is only what amounts to marginal employment.

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a 
facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that she is 100-percent, i.e., totally unemployable is different than requiring she prove that she cannot obtain and maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of her overall employability, whereas a requirement that she prove 100-percent unemployability leaves no flexibility.  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired.  Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule 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.  So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail.  As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether she is capable of performing the physical and mental acts required by employment, not whether she can find employment.

Although a February 2010 private treatment record from Southeastern Rehabilitation notes the Veteran had last worked as a laboratory technician in July 1999, she contends that, at minimum, she cannot work in her chosen field given, at least in part, the severity of her service-connected right arm disability.  While she has been afforded previous VA examinations, an opinion as to the effect of her service-connected disabilities on her employability has not been rendered.  She therefore should be provided an appropriate VA compensation examination for a medical opinion concerning whether she is unable to obtain and maintain substantially gainful employment as a result of her service-connected disabilities, those being the residuals of the injury to her right elbow and forearm  and the CTS and ulnar abutment of her non-dominant left wrist.

Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration:

1. Provide appropriate VCAA notice concerning this derivative TDIU claim.  Also ask the Veteran to complete and return a formal TDIU application, 
VA Form 21-8940, and to provide all other documentary information and evidence concerning her employment and education history.

2. Upon receipt of this information and evidence, schedule her for an appropriate VA compensation examination for a medical opinion concerning the effect her service-connected disabilities (those being, residuals of the injury to her right elbow and forearm and the CTS and ulnar abutment of her non-dominant left wrist) have on her ability to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison, when also considering her level of education, prior work experience and training.

*As it stands, CTS is only service connected to the extent affecting the Veteran's non-dominant left wrist, not also her right wrist, although service connection nonetheless is in effect for the residuals of the injury to her right elbow and forearm.  So if the examiner is unable to distinguish or differentiate what measure of impairment affecting the Veteran's right upper extremity on the whole is the result of her 
service-connected right elbow and forearm injury versus the CTS affecting this same extremity, then he/she needs to expressly indicate this since this will, in turn, for all intents and purposes require resolving this doubt in the Veteran's favor under 38 C.F.R. §§ 3.102, 4.3 and considering all impairment in question as attributable to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).

It would be helpful if the examiner would use the following language in proving this opinion on employability:  "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely\ than not" or "unlikely" (meaning that there is a less than 50% likelihood).


The term "at least as likely as not" does not mean merely "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

It is essential the examiner discuss the underlying rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file.

3. Then adjudicate this derivative claim of entitlement to a TDIU.  The adjudication should reflect consideration of both 38 C.F.R. § 4.16(a) and (b) and, regarding the latter, if determined to be warranted, referral of the claim to the Director of the C&P Service.  If the claim is denied, provide the Veteran and his representative an SSOC concerning this derivative claim and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this derivative claim.

The Veteran has the right to submit additional evidence and argument concerning this derivative claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs