Citation Nr: 1312650 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-38 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for left elbow fracture with injury to Muscle Groups VII and VIII with posttraumatic arthritis, limitation of motion, and peripheral neuropathy. 2. Entitlement to a disability rating in excess of 10 percent for left elbow posttraumatic arthritis with ankylosis prior to March 27, 2012. 3. Entitlement to a disability rating in excess of 30 percent for left elbow posttraumatic arthritis with ankylosis as of March 27, 2012. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service as a Philippine Scout from July 1946 to May 1949. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In an August 2009 Board decision, the Board denied the issue on appeal of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. This particular TDIU issue was not appealed to the Court and is final. However, the Veteran appealed the Board's decision to deny an increased rating for the left elbow muscle disability to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2011 Court Order and Joint Motion for Remand (Joint Motion) filed by the parties, the Court vacated the Board's decision on the issue of an increased in excess of 30 percent for left elbow fracture with injury to muscle groups VII and VIII, for compliance with specific instructions. Specifically, the Joint Motion concluded that the Board failed to provide an adequate statement of reasons or bases why it did not consider a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, for posttraumatic arthritis of the left elbow. See 38 U.S.C. § 7104(d)(1). The parties to the Joint Motion agreed that the Board's decision did not adequately explain whether a separate disability rating was warranted based on Veteran's left elbow posttraumatic arthritis, in addition to the currently assigned 30 percent disability rating for muscle injury. Upon return from the Court, the Board remanded this case in January 2012 for further development. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. 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. The evidence of record demonstrates "severe" muscle disability to Muscle Groups VII and VIII. 2. The evidence demonstrates "mild" neuropathy in the left upper extremity median and ulnar nerves, associated with the service-connected left elbow muscle injury. 3. As of August 25, 2000, the Veteran's left elbow posttraumatic arthritis exhibits 40 degrees of left forearm extension to 60 degrees flexion, when considering pain and flare-ups. 4. As of July 10, 2001, the Veteran's left elbow posttraumatic arthritis exhibits 0 degrees of left forearm extension to 70 degrees flexion, when considering pain and flare-ups. 5. As of March 27, 2012, ankylosis of the left elbow, at an angle between 90 and 70 degrees, is demonstrated by the evidence. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating greater than 30 percent for left elbow fracture with peripheral neuropathy with injury to Muscle Groups VII and VIII are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.55, 4.56, 4.69, 4.73, Diagnostic Codes 5307 and 5308 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.69, 4.120, 4.123, 4.124a, Diagnostic Codes 8515 and 8516 (2012). 2. As of August 25, 2000, the criteria are met for a separate 30 percent disability rating for left elbow posttraumatic arthritis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5010, 5206 (2012). 3. As of July 10, 2001, the criteria are met for a separate 20 percent disability rating for left elbow posttraumatic arthritis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5010, 5206 (2012). 4. As of March 27, 2012, the criteria for a separate disability rating greater than 30 percent for left elbow posttraumatic arthritis with ankylosis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5010, 5205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in May 2007, May 2008, July 2009, and February 2012. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate the increased rating issues; (2) informing him about the information and evidence the VA would seek to provide; (3) and informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the May 2007, July 2009, and February 2012 VCAA letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The May 2008 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. The May 2008 letter was fully sufficient. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). In the present case, the Board sees the RO did not provide the Veteran with all VCAA notice prior to the October 2007 adverse determination on appeal. But in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the timing error was cured. After providing additional VCAA notice on multiple occasions, the RO readjudicated the claims in SSOCs, to include the most recent June 2012 SSOC. Thus, the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) and VA examinations. For his part, the Veteran has submitted personal statements, argument from his previous attorney, and private medical evidence. The Veteran has not identified any additional, relevant private medical evidence. The Veteran was also afforded recent March 2012 VA medical examinations to rate the current severity of his left elbow disability. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Here, the March 2012 VA examinations are recent. There is no assertion of an increase in severity since the March 2012 VA examination. Therefore, a new VA examination to rate the severity of his left elbow disability is not warranted. The RO substantially complied with the Board's January 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand, the RO issued a June 2012 SSOC in order to consider additional private medical evidence that the Veteran had submitted. The RO has substantially complied with the Board's instructions. In summary, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. 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. 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. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups 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 DC 5003, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Rating Above 30 Percent for Left Elbow Muscle Disability The Veteran filed an increased rating claim in May 2007 for his left elbow muscle disability. The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his left elbow muscle disability has been more severe than at others, and rate it accordingly. Here, the left elbow muscle disability has not significantly changed, such that a uniform 30 percent evaluation is warranted. Initially, VA examinations throughout the appeal note that the Veteran is right handed, thus confirming that his left elbow is on his minor, i.e., non-dominant arm. 38 C.F.R. § 4.69. Historically, the Veteran was hospitalized in service from July 1946 to September 1946 for a compound fracture of the olecranon process of the left elbow. He sustained this injury in a motor vehicle accident. An open reduction operation was performed with immobilization of the fracture with steel wire and primary closure. Post-operatively a long arm cast was applied with the left forearm in mid-rotation. A left elbow surgical scar remained. The Veteran's left elbow fracture with injury to Muscle Groups VII and VIII with posttraumatic arthritis, peripheral neuropathy, and limitation of motion is rated as 30 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5307. A 30 percent rating is the maximum rating available under Diagnostic Code 5307 for impairment of Muscle Group VII that is "severe" in nature in the non-dominant arm. Therefore, the Veteran may only receive a higher rating above 30 percent under a different diagnostic code(s) or on an extraschedular basis. According to Diagnostic Code 5307, Muscle Group VII involves flexion of wrist and fingers. Muscles arising from internal condyle of humerus: Flexors of the carpus and long flexors of fingers and thumb; pronator. According to Diagnostic Code 5308, Muscle Group VIII involves extension of wrist, fingers, and thumb; abduction of thumb. Muscles arising mainly from external condyle of humerus: Extensors of carpus, fingers, and thumb; supinator. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). A "severe" muscle disability occurs when there was a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Records should show hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective evidence of severe muscle disability includes ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Additional signs of severe muscle disability, when present, include: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). As held by the Court, the criteria for evaluating muscle injuries under 38 C.F.R. § 4.56 involves a "totality-of-the-circumstances test" with no single fact controlling the outcome of determination. Tropf v. Nicholson, 20 Vet. App. 317, 324-25 (2006) (Tropf II). In Robertson v. Brown, 5 Vet. App. 70 (1993), the Court held that a history of debridement did not mandate a specific rating under 38 C.F.R. § 4.56 absent evidence of symptomatic disability. Similarly, in Tropf II, the Court held that the presence of retained metal fragments in muscle that was essentially asymptomatic did not entitle a claimant to a "moderate" compensable rating under 38 C.F.R. § 4.56 as a matter of law. Tropf II, 20 Vet. App. at 324-25. The evidence of record does not support a disability rating above 30 percent for the Veteran's left elbow fracture with injury to Muscle Groups VII and VIII. 38 C.F.R. § 4.7. Specifically, per his VA examinations, private treatment records, and credible lay statements, there is evidence of the required "severe" muscle disability, with many of the cardinal signs and symptoms of muscle disability to include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). This indeed supports a maximum 30 percent rating for the minor, non-dominant arm under Diagnostic Code 5307. The Board has considered whether a separate rating can be awarded for Muscle Group VIII under Diagnostic Code 5308. VA examinations dated in June 1972, June 1978, November 1991, August 2000, July 2001, January 2005, June 2007, and March 2012 confirm that the Veteran's service-connected injury involves both Muscle Groups VII and VIII. However, for compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55(e). In the present case, this provision is applicable, since Muscle Groups VII and VIII are in the same anatomical region (the forearm and hand), but act on different joints (medical evidence of record consistently shows that the shoulder, wrist, and finger joints are all impacted by the service-connected injury). However, since each muscle group would already be rated as "severe" at the maximum 30 and 20 percent ratings available (under Diagnostic Codes 5307 and 5308 respectively), it is impossible for any muscle group to be rated one level higher. Thus, under 38 C.F.R. § 4.55(e), the combined evaluation for all affected muscle groups in this region is the maximum 30 percent rating. By law, the Veteran is not entitled to a higher rating above 30 percent for the combined evaluation of his left elbow muscle groups under 38 C.F.R. § 4.55(e). With regard to the service-connected left elbow scar, this disability is rated as 0 percent disabling (noncompensable) under 38 C.F.R. § 4.118, Diagnostic Code 7805, for scars causing limitation of function of an affected part. The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). However, the amendments only apply to claims filed on or after October 23, 2008. A claimant may also specifically request consideration under the amended criteria, irrespective of whether the disability has worsened since the last review. See id. The Veteran's increased rating claim was pending in May 2007, prior to the October 2008 effective date, and VA has not received a request from the Veteran for consideration under the amended criteria. Therefore, the 2008 amended criteria will not be addressed in this decision. The Board has considered that skin / scar diagnostic codes provide potential compensable disability ratings. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). However, here, the evidence of record does not reveal that the Veteran's left elbow scar is tender, painful, or unstable, or that it is deep or exceeds six inches in area or impacts the function of his left elbow. See Veteran's lay statements; VA examinations dated in June 1972, June 1978, November 1991, August 2000, July 2001, January 2005, June 2007, and March 2012. It was only once noted that the scar was slightly to moderately adherent and slightly depressed. See June 2007 VA scar examination. These particular symptoms are not compensable under the rating criteria for scars. In the absence of scar symptomatology that is compensable, the assignment of a higher compensable evaluation for the left elbow scar under Diagnostic Codes 7801-7805 is not warranted. With regard to neuropathy, in a recent January 2013 rating decision, the RO also granted service connection for peripheral neuropathy of the left upper extremity (claimed as numbness, cramping, and incomplete paralysis of the left hand). A November 2012 VA physician provided a medical opinion stating the Veteran has left upper extremity neuropathy which is due to the Veteran's service-connected left elbow Muscle Group VII injury. The VA physician based his findings on a January 2005 electromyography (EMG) / nerve conduction velocity (NCV) performed by VA. This test revealed both median and ulnar nerve neuropathy due to the Veteran's service-connected injury. Regardless, the RO did not assign a separate compensable evaluation for neuropathy of the left upper extremity. Rather, the RO incorporated the neuropathy rating into the already assigned 30 percent muscle rating under Diagnostic Code 5307. The Board has considered whether separate ratings are warranted for both median and ulnar nerve impairment due to service-connected muscle disability under 38 C.F.R. § 4.124a, Diagnostic Codes 8515 and 8516, incomplete paralysis of the median and ulnar nerves. However, the Board finds this would constitute pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. In this regard, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). In effect, the Veteran is not entitled to separate and additional ratings for his left hand median and ulnar nerve disabilities, in addition to his muscle disability, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. Specifically, the Board finds that the muscle and nerve injuries affect the same functions. According to Diagnostic Code 5307, Muscle Group VII involves consideration of symptomatology of the wrist and fingers, to include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). According to Diagnostic Code 5308, Muscle Group VIII involves extension of wrist, fingers, and thumb; abduction of thumb. Muscles arising mainly from external condyle of humerus: Extensors of carpus, fingers, and thumb; supinator. Similarly, Diagnostic Codes 8515 and 8516, for incomplete paralysis of the median and ulnar nerves, involve consideration of similar symptomatology of the wrist and fingers as well. The symptomatology of both the muscle and peripheral nerve injuries clearly overlap. Therefore, separate ratings cannot be assigned. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned only where none of the symptomatology of the conditions overlaps). However, in rating his service-connected left elbow disability, application of 38 C.F.R. § 4.14 does not prohibit the Board from comparing the rating criteria for the neuropathic manifestations versus the rating criteria for the affected left elbow muscles and considering which provides a higher evaluation based on the manifestations of the disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Therefore, the Board will evaluate the Veteran's left elbow disability under the diagnostic code(s) that will provide the most favorable rating considering the prohibition on pyramiding for the same symptoms. See again Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Under Diagnostic Code 8515, a 10 percent evaluation is warranted for mild incomplete paralysis of the median nerve for the minor upper extremity. A 20 percent evaluation requires moderate incomplete paralysis of the median nerve. A 40 percent evaluation requires severe incomplete paralysis of the median nerve. A maximum evaluation of 60 percent for complete paralysis of the median nerve of the minor upper extremity occurs where the hand was inclined to the ulnar side, the index and the middle fingers were more extended that normally, there was considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation was incomplete and defective, there was the absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, the index and middle fingers remained extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm and flexion of wrist was weakened and there was pain with trophic disturbances. 38 C.F.R. § 4.124a. Under Diagnostic Code 8516, a 10 percent evaluation is warranted for mild incomplete paralysis of the ulnar nerve for the minor upper extremity. A 20 percent evaluation requires moderate incomplete paralysis of the ulnar nerve. A 30 percent evaluation requires severe incomplete paralysis of the ulnar nerve. A maximum evaluation of 50 percent for complete paralysis of the ulnar nerve of the minor upper extremity requires the "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist. Id. Under Diseases of the Peripheral Nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull. 38 C.F.R. § 4.120. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Upon review of the evidence, separate "mild" incomplete paralysis involving the left median and ulnar nerves is demonstrated, warranting separate 10 percent ratings. 38 C.F.R. § 4.7. The evidence establishes that the manifestations are consistent with "mild" neuropathy. Specifically, a January 2005 EMG / NCV test performed by VA revealed both median and ulnar nerve neuropathy due to the Veteran's service-connected injury. A January 2005 VA neurological examiner documented numbness, gross motor weakness (strength was 3/5), hyperactive reflexes, and hypoesthesia of the left hand and fingers. A June 2007 VA neurological examiner assessed left upper extremity numbness, weakness (strength was 3/5), decreased vibration, paresthesias, tingling, pain, diminished reflexes, and a poor grip. A June 2007 VA hand examiner noted "occasional" numbness of the left hand with pain and weakness. Private physical therapy notes dated in May 2007 and June 2007 discussed sensory deficit in the left upper extremity. VA examinations dated in March 2012 documented similar symptomatology, although no neurological examination was performed. A November 2012 VA physician provided a medical opinion stating the Veteran has left upper extremity neuropathy to the median and ulnar nerves, which is due to the Veteran's service-connected left elbow Muscle Group VII injury. With regard to lay evidence, the Veteran has submitted credible statements reporting left hand and forearm weakness, numbness, pain, cramping, and difficulty lifting, gripping, and holding objects. See May 2007 claim; May 2009 statement. However, muscle injuries already contemplate loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). Thus, based on the above evidence, separate 10 percent ratings are warranted under Diagnostic Codes 8515 and 8516 for "mild" left median and ulnar nerve injuries. However, the evidence of record does not reflect higher separate ratings above the separate 10 percent ratings assigned for the Veteran's left upper extremity median and ulnar nerve injuries. 38 C.F.R. § 4.7. The Veteran's lay statements and the medical evidence of record document that there was no atrophy, no abnormal muscle tone or bulk, and joint function was not impacted by the nerve. There is also no evidence of complete paralysis. Although an earlier July 2001 VA examiner found "slight" atrophy of the left forearm, all other VA and private examiners failed to mention atrophy or specifically found no evidence of atrophy. Overall, such findings do not reflect "moderate" neuropathy that could entitle him to higher ratings above 10 percent for both the median and ulnar nerves. See VA examinations dated in January 2005, June 2007, and March 2012, as well as various lay statements submitted by the Veteran. Therefore, in the present case, the combined evaluation for median and ulnar nerve neuropathy of the left upper extremity is 20 percent when the two 10 percent "mild" ratings are combined under 38 C.F.R. § 4.25 (combined ratings table). Consequently, as noted above, a 30 percent would still be warranted for the Veteran's left elbow fracture with injury to Muscle Groups VII and VIII, when considering only Diagnostic Codes 5301- 5323 for muscle injuries. However, when considering the neuropathic diagnostic codes, a combined 20 percent rating is warranted for median and ulnar nerve neuropathy of the left upper extremity under Diagnostic Codes 8515 and 8516. A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, as this would constitute pyramiding in the present case, as the injuries affect similar functions. 38 C.F.R. §§ 4.14, 4.55(a). Only one rating can be chosen, but not both. Simply stated, rating the Veteran's disability under the diagnostic codes for muscle injuries still provides the greater 30 percent rating in the present case, when considering all the evidence of record. Accordingly, the evidence does not support an increased disability rating above 30 percent for the Veteran's left elbow fracture with peripheral neuropathy with injury to Muscle Groups VII and VIII. 38 C.F.R. § 4.3. Extraschedular Consideration Initially, since the muscle and neurological rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's left elbow fracture with peripheral neuropathy with injury to Muscle Groups VII and VIII that would render the schedular criteria inadequate. There are no additional symptoms due to his neuropathy and muscle injury that are not addressed by the Rating Schedule. Moreover, to the extent that the Veteran's disability interferes with his employability and activities of daily life, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Analysis - Rating Above 10 Percent Prior to March 27, 2012 for Left Elbow Arthritis The April 2011 Joint Motion instructed VA to consider whether a separate disability rating from the muscle injury was warranted based on Veteran's left elbow posttraumatic arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010. The Joint Motion indicated that arthritis (confirmed by X-ray) with limitation of motion of the specific joint involved may entitle the Veteran to an additional, separate rating. A June 2007 VA examination noted that limitation of motion of the left elbow was mainly due to joint pain, while partly due to muscle pain and weakness. In a June 2012 rating decision, the RO assigned a separate disability rating for left elbow posttraumatic arthritis with ankylosis under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5205 (arthritis with ankylosis of the elbow). From December 6, 1971 to March 27, 2012, the separate left elbow joint impairment was rated as 10 percent disabling. As of March 27, 2012, the separate left elbow posttraumatic arthritis with ankylosis was rated as 30 percent disabling. This 30 percent rating was based on ankylosis of the left elbow diagnosed by a March 2012 VA examiner. The ratings for the left elbow joint are separate and distinct from the 30 percent muscle injury that is already rated under Diagnostic Code 5307. In the present decision, the Board finds that the left elbow joint impairment disability requires further staging, due to variations in the severity of the symptomatology prior March 27, 2012. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the case of a staged rating involving the simultaneous assignment of higher and lower evaluations for a disorder, there is no reduction of a rating unless the rating action assigns a disability evaluation which is below that level previously in existence. See Singleton v. Shinseki, 23 Vet. App. 376 (2010), Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Traumatic arthritis under Diagnostic Code 5010 is rated analogous to degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis, when 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For purposes of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45(f). Normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. See 38 C.F.R. § 4.71a, Plate I. Under Diagnostic Code 5206, a 10 percent rating is warranted when forearm flexion of the minor arm is limited to 100 degrees; a 20 percent rating is warranted when forearm flexion is limited to 90 or 70 degrees; a 30 percent rating is warranted when forearm flexion is limited to 55 degrees; and a 40 percent rating is warranted when forearm flexion is limited to 45 degrees. 38 C.F.R. § 4.71a . Under Diagnostic Code 5207, a 10 percent rating is warranted when forearm extension of the minor arm is limited to 45 or 60 degrees; a 20 percent rating is warranted when forearm extension is limited to 75 or 90 degrees; a 30 percent rating is warranted when forearm extension is limited to 100 degrees; and a 40 percent rating is warranted when forearm extension is limited to 110 degrees. Id. Under Diagnostic Code 5205, ankylosis of the minor arm warrants a 30 percent evaluation if it is favorable, at an angle between 90 and 70 degrees; warrants a 40 percent evaluation if it is intermediate, at an angle more than 90 degrees or between 70 and 50 degrees; and warrants a maximum 50 percent evaluation if it is unfavorable, at an angle of less than 50 degrees or with complete loss of supination or pronation. Id. In all forearm and wrist injuries, Diagnostic Codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle injury, or nerve injury are to be separately rated and combined, not to exceed the rating for loss of use of the hand. See Note after Diagnostic Codes 5205 through 5211. As of August 25, 2000, the evidence of record is consistent with a higher 30 percent rating for left elbow posttraumatic arthritis with limitation of motion under Diagnostic Code 5206 (limitation of elbow flexion). 38 C.F.R. § 4.7. Specifically, the August 2000 VA joint examiner noted 40 degrees of left forearm extension to 60 degrees flexion when considering pain and flare-ups. This is indicative of a 30 percent rating under Diagnostic Code 5206 for the minor joint. In describing the Veteran's limitation of left forearm motion, the VA examiner discussed tenderness, guarding, weakness, and pain. The Veteran has difficulty carrying and lifting due to his left elbow disability. This functional loss is adequately represented in the 30 percent rating now assigned as of August 25, 2000. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. However, prior to August 25, 2000, there is still no basis for a rating above 10 percent for left elbow posttraumatic arthritis with limitation of motion. 38 C.F.R. § 4.7. The Veteran's lay statements, VA examinations dated in June 1972, June 1978, November 1991, and private medical evidence dated in the 1970s, 1980s, and 1990s fails to reveal limitation of flexion or extension of the left forearm under Diagnostic Code 5206 or 5207 that would result in a rating above 10 percent, even when considering pain and other factors of functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. As of July 10, 2001, the evidence of record is consistent with a lower 20 percent rating for left elbow posttraumatic arthritis with limitation of motion under Diagnostic Code 5206 (limitation of elbow flexion). 38 C.F.R. § 4.7. Specifically, the July 2001 VA joint examiner noted 0 degrees of left forearm extension to 70 degrees flexion when considering pain and flare-ups. This is indicative of a lower 20 percent rating under Diagnostic Code 5206 for the minor joint. In describing the Veteran's limitation of left forearm motion, the VA examiner discussed tenderness, guarding, and pain. The July 2001 VA muscle examiner also stated that during the flare-ups the Veteran cannot effectively use his left arm. This functional loss is adequately represented in the 20 percent rating now assigned as of July 10, 2001. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. A January 2005 VA bone and joint examiner assessed ankylosis of the left elbow, flexed at an angle of 40 degrees. However, this examination finding is wildly inconsistent with VA examinations both before and after. It does not provide an adequate reason for finding ankylosis at that particular time. Furthermore, the Board emphasizes that under VA law, accepting ankylosis would result in no evaluation for the muscle groups. Specifically, under 38 C.F.R. § 4.55(c), there will be no rating assigned for muscle groups which act upon an ankylosed joint. Accordingly, as of August 25, 2000, the evidence supports an increased disability rating of 30 percent, but no greater, for left elbow joint impairment. 38 C.F.R. § 4.3. Accordingly, as of July 10, 2001, the evidence supports an increased disability rating of 20 percent, but no greater, for left elbow joint impairment. 38 C.F.R. § 4.3. Analysis - Rating Above 30 Percent After March 27, 2012 for Left Elbow Arthritis / Ankylosis As of March 27, 2012, left elbow posttraumatic arthritis with ankylosis is separately rated as 30 percent disabling under Diagnostic Codes 5010-5205 (arthritis with ankylosis of the elbow). This 30 percent rating was based on ankylosis of the left elbow, clearly diagnosed by a March 2012 VA examiner. This 30 percent rating is separate and distinct from the muscle injury also rated as 30 percent disabling under Diagnostic Code 5307. As of March 27, 2012, a disability rating greater than 30 percent for the left elbow posttraumatic arthritis with ankylosis is not warranted. 38 C.F.R. § 4.7. The March 2012 VA examiner assessed ankylosis of the left elbow, at an angle between 90 and 70 degrees, which is indicative of a 30 percent rating under Diagnostic Code 5205. However, the VA examiner did not find either intermediate ankylosis, at an angle more than 90 degrees or between 70 and 50 degrees, nor unfavorable ankylosis, at an angle of less than 50 degrees or with complete loss of supination or pronation. See Diagnostic Code 5205. In addition, at the March 2012 VA examination, the Veteran did not exhibit range of motion with left forearm flexion limited to 45 degrees, or extension limited to 110 degrees, even when considering the impact of pain and other functional loss. Specifically, the March 2012 VA examiner noted 25 degrees of left forearm extension to 100 degrees flexion after three repetitions, with consideration of pain and other functional loss factors. In describing the Veteran's limitation of left elbow motion, the VA examiner identified the following contributing factors of functional loss: less movement than usual, pain on movement, deformity, weakness, and excess fatigability. This functional loss is adequately represented in the 30 percent rating assigned. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. As such, as of March 27, 2012, a disability rating greater than 30 percent is not shown. In conclusion, as of March 27, 2012, a disability rating greater than 30 percent for left elbow posttraumatic arthritis with ankylosis is denied. 38 C.F.R. § 4.3. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Under Diagnostic Code 5123, amputation of the minor forearm above insertion of the pronator teres warrants a 70 percent rating. 38 C.F.R. § 4.71a. In the present case, throughout the entire appeal, the combined rating for the muscle, joint, and neuropathic manifestations of the Veteran's left elbow disability does not exceed the rating for amputation at the elective level (70 percent). See 38 C.F.R. § 4.25 (combined ratings table). Thus, the Board has not run afoul of the amputation rule. Extraschedular Consideration Since the arthritis, limitation of motion, and ankylosis rating criteria for the left elbow reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's left elbow posttraumatic arthritis with ankylosis that would render the schedular criteria inadequate. The Board has considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) in determining the Veteran's ratings. There are no additional symptoms due to his left elbow posttraumatic arthritis with ankylosis injury that are not addressed by the Rating Schedule. Moreover, to the extent that the Veteran's disability interferes with his employability and activities of daily life, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. ORDER An increased disability rating greater than 30 percent for a left elbow injury to Muscle Groups VII and VIII with peripheral neuropathy is denied. An increased, separate 30 percent disability rating for left elbow joint impairment (posttraumatic arthritis) is granted, effective August 25, 2000. An increased, separate 20 percent disability rating for left elbow joint impairment (posttraumatic arthritis) is granted, effective July 10, 2001. An increased, separate disability rating greater than 30 percent for left elbow joint impairment (posttraumatic arthritis with ankylosis) is denied as of March 27, 2012. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs