Citation Nr: 1318559	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-10 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for right lateral epicondylitis.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel



INTRODUCTION

The Veteran served on active duty from November 1983 to November 2007. 

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable rating for right lateral epicondylitis.  A July 2009 rating decision awarded a 10 percent rating for right lateral epicondylitis, effective December 1, 2007.  In June 2012 and March 2013 the Board remanded the claim for additional development, which has been completed.  

The issue of entitlement to service connection for left lateral epicondylitis was raised by the Veteran during the August 2012 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. 


FINDINGS OF FACT

The Veteran's epicondylitis of the right elbow has been manifested by flexion greater than 110 degrees, full extension, and supination limited to 35 degrees at worst.  There is no evidence of ankylosis, flail joint, joint fracture, or nonunion or malunion of the radius or ulna.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for epicondylitis of the right elbow have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  The notice requirements were accomplished in letters sent in July 2008 and January 2009.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).  The notice was timely because the claim was readjudicated in the April 2013 supplemental statements of the case.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment records, and available private and VA treatment records have been obtained.  In correspondence in March 2013, the RO provided the Veteran with necessary authorization forms to obtain and associate with the claims file private medical records.  The Veteran failed to respond to RO's request.  The duty to assist is not a one-way street.  If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  In addition, he has been provided with appropriate VA examinations in connection with the claim which sufficiently describe the manifestations of the Veteran's elbow disability for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Moreover, he has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Increased Rating

Service connection for right lateral epicondylitis was established by a May 2008 rating decision.  The Veteran filed the instant claim for an increased rating in June 2008.  A July 2009 rating decision awarded a 10 percent rating for right lateral epicondylitis, effective December 1, 2007.  The Veteran seeks a higher disability rating.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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

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.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).

Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The Veteran's right epicondylitis is rated 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5024 for tenosynovitis.  Under Diagnostic Code 5024, tenosynovitis is to be rated based on limitation of motion as arthritis.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5024. 

Flexion of the major forearm limited to 110 degrees is rated as noncompensably (0 percent) disabling; flexion limited to 100 degrees is rated as 10 percent disabling; flexion limited to 90 degrees is rated as 20 percent disabling; flexion limited to 70 degrees is rated as 30 percent disabling; flexion limited to 55 degrees is rated as 40 percent disabling; and flexion limited to 45 degrees is rated as 50 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5206. 

Extension of the major forearm limited to 45 degrees is rated as 10 percent disabling; extension limited to 60 degrees is rated as 10 percent disabling; extension limited to 75 degrees is rated as 20 percent disabling; extension limited to 90 degrees is rated as 30 percent disabling; extension limited to 100 degrees is rated as 40 percent disabling; and extension limited to 110 degrees is rated as 50 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5207. 

Limitation of flexion of the major forearm to 100 degrees with forearm extension limited to 45 degrees is rated as 20 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5208. 

Flexion of the elbow to 145 degrees is considered full and extension to 0 degrees is considered full.  See 38 C.F.R. § 4.71, Plate I.

Diagnostic Code 5213 provides ratings based on impairment of supination and pronation of the forearm.  Diagnostic Code 5213 provides that supination of the major forearm limited to 30 degrees or less is rated 10 percent disabling.  Limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation, is rated 20 percent disabling; limitation of pronation with motion lost beyond the middle of arc is rated 30 percent.  Loss of supination or pronation due to bone fusion, with the hand fixed near the middle of the arc or moderate pronation, is rated 20 percent disabling; loss of supination or pronation due to bone fusion, with the hand fixed in full pronation, is rated 30 percent disabling; and loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling.  38 C.F.R. § 4.71a.  

Under 38 C.F.R. § 4.71a, a note indicates that in all forearm arm and wrist injuries, Diagnostic Codes 5205 through 5213, multiple impaired fingers movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed the rating for loss of use of the hand.  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Based on a review of the evidence of record, the Board concludes that the Veteran is not entitled to a rating higher than 10 percent for right elbow epicondylitis.  A close review of the record reveals no distinct period during which the criteria for a higher rating were met.

The Veteran underwent a VA examination in February 2008.  It was noted that the Veteran had been diagnosed with right lateral epicondylitis in 2005.  He complained of constant pain in the lateral aspect of the right elbow.  He described the pain as "aching" and occasionally "sharp" with a severity level of 7 out of 10.  The pain was elicited by physical activity and was managed conservatively with rest and medication.  The examiner reported that the Veteran was able to function and that no treatment was required.  On examination, the right upper extremity was normal without evidence of edema, ulceration, atrophy, gangrene, persistent coldness, tremor or ischemia.  There was no palpable tenderness, guarding of movement, fracture, deformity, edema or effusion, heat or redness, sublaxation, locking pain, or ankylosis.  Flexion of the elbow was to 145 degrees, extension was to 0 degrees, supination was to 85 degrees, and pronation was to 80 degrees.  After repetitive motion there was no additional limitation of motion by pain, fatigue, weakness, lack of endurance, or incoordination.  Hand strength was normal.  The examiner found no pathology associated with right epicondylitis on examination.  

Subsequent private treatment records noted complaints of elbow pain.  In June 2008, the Veteran complained of pain in all the joints, including the elbows.  In September 2009, flexion of the elbow was to 125 degrees, extension was to 0 degrees, supination was to 35 degrees, and pronation was to 90 degrees.  The elbow was noted as tender.  An impression of right elbow tendonitis was recorded.  An October 2009 clinical treatment note contained a finding of right elbow pain due to arthritis.  In August 2010 a clinical impression of bilateral tennis elbow was noted.  Range of motion was normal.  Neurologically, sensation was grossly intact, there was no focal motor loss, and deep tendon reflexes were 2+ and symmetrical.  

On VA examination in August 2012, the Veteran, who was noted to be right hand dominant, complained right elbow pain having onset in service.  He reported flare-ups of pain triggered by cold or rainy weather.  Reportedly, the right elbow pain was progressively worse.  At the time of the examination he rated the pain as 8 out of 10.  He had been treated with physical therapy and an injection in August 2011.  No history of surgery was noted.  He was able to work full time wearing a strap, but related problems sleeping due to pain.  Right elbow flexion was to 145 degrees with onset of pain at 145 degrees or greater, extension was to 0 degrees without limitations.  There was no additional limitation of motion with repetitive testing.  There was objective evidence of pain on movement, as well as tenderness and pain on palpation.  Strength was 5/5.  There was no ankylosis.  There was no evidence of flail joint, fracture, or impairment on supination or pronation.  The examiner found that the severity of the right elbow disability was not significant as x-rays showed no acute abnormality.  The examiner opined that the reported pain level exceeded level of activities the Veteran was able to perform working as a full time mechanic and driving a car, and as such his complaints were not supported by the clinical evidence.

Accordingly, the record shows that during the period on appeal the Veteran's right elbow epicondylitis was manifested by flexion greater than 110 degrees, and full extension with subjective complaints of pain.  Even considering 38 C.F.R. §§ 4.40, 4.45, such limitation did not more nearly approximate flexion limited to 110 degrees or extension limited to 45 degrees, and consequently do not warrant a higher rating under Codes 5206 and 5207, respectively.  While in September 2009 a private clinician noted supination to 35 degrees, such does not support even a compensable limitation of motion for supination.  Moreover, there is no bone fusion affecting pronation and supination, and the evidence does not show limitation of pronation with motion lost beyond the last quarter of arc to warrant a higher rating under Diagnostic Code 5213. 

Similarly, as ankylosis, flail joint, joint fracture, non union or malunion of the radius or ulna are not shown, Diagnostic Codes 5205, 5209, 5210, 5211 and 5212 need not be considered.  As noted above, x-ray examination of the right elbow was negative.  Moreover, as the Veteran did not have flexion limited to 100 degrees and extension limited to 45 degrees, Diagnostic Code 5208 does not apply.  

The Board has specifically considered the guidance of 38 C.F.R. §§4.40, 4.45, 4.59.  When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In that regard, the Board notes that the Veteran is competent to report his symptoms to include pain on motion; however, the most probative evidence does not establish that the right elbow disability results in actual, or the functional equivalent of, limitation of motion that would warrant a rating higher than the currently assigned 10 percent disability rating.   

Regarding any neurological symptoms related to the Veteran's right elbow disability, while in May 2012, the Veteran's private physician submitted a statement noting that the Veteran had been treated for the right elbow condition since July 2008, and that such treatment included physical therapy, neurology, and general medical treatment, there is no objective evidence of any nerve injury.  Additionally, the evidence does not show impairment of the fingers movements due to tendon tie-up, or muscle injury that would warrant consideration of a separate rating.  In this regard, the VA examiner in February 2008, noted that the right upper extremity was normal without evidence of edema, ulceration, atrophy, gangrene, persistent coldness, tremor or ischemia.  There was no palpable tenderness, guarding of movement, fracture, deformity, edema or effusion, heat or redness.  Hand strength was normal.  Similarly, an October 2009 clinical treatment report noted sensation grossly intact, there was no focal motor loss, and deep tendon reflexes were 2+ and symmetrical.  Finally, the VA examiner in August 2012 noted hand strength was 5/5.  The examiner further noted that reported pain level exceeded level of activities the Veteran was able to perform working as a full time mechanic and driving a car, and as such his complaints were not supported by the evidence.

In sum, the weight of the evidence demonstrates that the Veteran's right elbow epicondylitis does not warrant a rating in excess of 10 percent.  At no point during this period on appeal did the Veteran's right elbow epicondylitis manifest in actual, or the functional equivalent of, limitation of flexion that closely approximated 100 degrees or less or extension that closely approximated 45 degrees or more.  The Board has considered the statements of the Veteran regarding the severity of the service-connected right elbow epicondylitis.  However, the Board finds the objective findings contained in the medical evidence of record to be more probative than the Veteran's lay assertions as to the severity of his condition.  Indeed, the 2012 VA examiner noted the Veteran's reported pain level was not consistent with being able to perform his work as a full time mechanic and driving a car, and that the subjective complaints were not supported by the evidence.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  

As a final matter, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence.  The Board finds that his symptomatology is adequately addressed by the evaluation assigned.  Thus, his disability picture is contemplated by the rating schedule, and the assigned 10 percent schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

As the preponderance of the evidence is against the claim for assignment of any higher rating the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A rating higher than 10 percent for epicondylitis of the right elbow is denied.



____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs