Citation Nr: 1326796 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-12 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date prior to July 26, 2007, for the grant of a 40 percent rating for the lumbosacral strain, degenerative joint disease of the lumbar spine (also referred to as low back disability). 2. Entitlement to an effective date prior to July 26, 2007, for the grant of a 20 percent evaluation for degenerative joint disease with bursitis of the right elbow (also referred to as right elbow disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from January 1977 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating action issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. During the current appeal, and specifically in September 2010, the Veteran testified at a videoconference hearing conducted before the undersigned. A transcript of the testimony has been associated with the Veteran's claims file. The Board notes that the Veteran was granted a disability evaluation of 100 percent after undergoing surgery of the right elbow in March 2006. This disability evaluation was effective from March 30, 2006 to May 31, 2006. Therefore, this decision will not affect this time period. FINDINGS OF FACT 1. In an October 1997 rating decision, the RO granted entitlement to service connection for the low back disability and assigned a 10 percent evaluation effective from June 1, 1997. The Veteran did not appeal that decision. 2. In a March 1999 rating decision, the RO granted a 20 percent evaluation for the low back disability effective from June 24, 1998. The Veteran did not appeal that decision. 3. January 2000 and December 2004 rating decisions continued the 20 percent rating for the low back disability. The Veteran did not appeal that decision. 4. An informal claim for an increased evaluation for the low back disability was received on May 6, 2005. 5. The evidence within the one-year period prior to the claim for increase up until July 26, 2007 does not establish that the low back disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 6. A claim for an increased disability rating for degenerative joint disease with bursitis, right elbow, either formal or informal, was received on August 26, 2005. 7. The evidence of record dated within a year prior to August 26, 2005, does not show a factually ascertainable increase in the severity of the Veteran's degenerative joint disease with bursitis, right elbow. 8. The medical evidence dated from July 17, 2006 to July 26, 2007, shows that the Veteran's service-connected right elbow disability was predominantly manifested by flexion limited to, or less than 45 degrees and extension limited to, or less than 110 degrees. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date earlier than July 26, 2007, for the award of a 40 percent evaluation for lumbosacral strain, degenerative joint disease, lumbar spine, have not been met. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). 2. The criteria for an effective date of July 17, 2006, but no earlier, for the assignment of a 50 percent rating for degenerative joint disease with bursitis of the right elbow have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, (2012). 4. Resolving all doubt in favor of the Veteran, the criteria for a 50 percent disability evaluation for degenerative joint disease with bursitis, right elbow, for the period from July 17, 2006 to July 26, 2007 have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, 4.71a, Diagnostic Codes 5206-5207 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Nevertheless, the Board notes that such notice is unnecessary in this case. The Veteran is challenging the effective date for the grant of an increased evaluation in a July 2008 rating action. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105 (d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See Dingess v. Nicholson, 19 Vet. App. 473 (2006) (in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required). Thus, the Board finds that under the holding in Dingess, further notice from VA to the Veteran is not required with regard to his claims for an earlier effective date prior to July 26, 2007, for the assignment of a 40 percent disability evaluation for lumbosacral strain, degenerative joint disease, lumbar spine; and for an earlier effective date prior to July 26, 2007, for the assignment of a 20 percent disability evaluation for degenerative joint disease with bursitis of the right elbow. The RO properly issued a statement of the case in March 2009 addressing the effective-date issue, to include providing the Veteran with the applicable law. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records as well as all identified and available private and VA treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claims adjudicated herein. Additionally, the Veteran has submitted numerous written statements and has testified before the undersigned VLJ in support of his appeal. The Veteran has also been provided with VA examinations in connection to his claim for an increased evaluation for the low back disability in November 2004, and February 2006, and he was also provided with VA examinations in connection to his right elbow disability in February 2006 and March 2007. While VA did not provide the Veteran with an examination in connection with his current claims for an earlier effective date, the Board finds that examinations are not necessary, as the evidence is sufficient to decide the claims. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C) (West 2002); see also 38 C.F.R. § 3.159(c)(4)(A)-(C) (2012). Specifically, oftentimes the evidence necessary to determine whether an earlier effective date is warranted is already in the claims file. That is the situation with this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of the claim for increase and did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis Earlier Effective Date for the Low Back Disability The Veteran argues that he is entitled to an earlier effective date for the assignment of a 40 percent evaluation for lumbosacral strain, degenerative joint disease, lumbar spine. He argues that the effective date should go back to May 6, 2005, when he filed his claim for an increased evaluation for the service-connected low back disorder. At the April 2013 Board hearing, the Veteran testified that at the time he filed for the increased rating for his service-connected low back disability, his physicians had indicated that his back condition had worsened in severity. The Veteran further stated that his private neurosurgeon recommended that he undergo surgery to help improve his symptoms. See April 2013 Hearing Transcript, p. 8. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a). The implementing regulation states that the effective date for a claim for increase will be the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. §§ 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2) (2012); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 2002). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). A brief historical overview reflects that the Veteran's claim for service connection for the low back disability was granted in the October 1997 rating decision and assigned a 10 percent disability rating, effective June 1, 1997. In the March 1999 rating decision, the RO increased the disability rating for the service-connected low back disability to 20 percent disabling, effective June 24, 1998. In a January 2000 rating decision, the RO continued the 20 percent disability rating assigned for the service-connected lumbosacral strain. It does not appear that the Veteran appealed any of these decisions. The Veteran submitted a claim for an increased evaluation in July 2004. In a December 2004 rating decision, the RO denied an evaluation in excess of 20 percent for the Veteran's lumbar spine disability and continued the 20 percent disability rating in effect since June 24, 1998. While the Veteran submitted statements within one year of the December 2004 rating decision, the Board finds as fact that the Veteran did not appeal the December 2004 rating decision. Indeed, on May 6, 2005, VA received a statement from the Veteran requesting a higher rating for his service-connected low back disability. Requesting a higher rating is not the same as expressing disagreement with a decision. See 38 C.F.R. § 20.201 (While special wording is not required, a notice of disagreement must be in terms that can be "reasonably construed" as disagreement with a determination and a desire for appellate review.) In reading through the May 2005 statement, the Board does not find that the Veteran was seeking appellate review. Instead, it appears that he was filing a new claim for an increased evaluation. As such, the Board finds that the date of the claim for increase is May 6, 2005, as that was when the first statement was received following the December 2004 rating decision indicating the Veteran wanted a higher evaluation than what was currently assigned. The Board notes that just because there was a rating decision issued within one year prior to the May 2005 informal claim for increase does not preclude an effective date earlier than December 2004 for the 40 percent evaluation. See Hazan v. Gober, 10 Vet. App. 511 (1997). Again, the date of the current claim for increase was received on May 6, 2005. The Board must determine if entitlement to a 40 percent evaluation was shown between May 6, 2004 (one year prior to the date of claim) and July 26, 2007 (the current effective date). 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran's low back disability has been evaluated under Diagnostic Code 5237-5242. On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 51454-51458 (August 27, 2003). Diagnostic Codes 5237 -5242 provides that lumbosacral strains and degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine which encompasses 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent disability evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine. Also, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Under Note (5), fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of an effective date earlier than July 26, 2007, for the award of a 40 percent evaluation for lumbosacral strain, degenerative joint disease of the lumbar spine. Based on the evidence of record, the facts do not establish a basis to award a 40 percent evaluation for the service-connected low back disability during this time period. There are medical records and examination reports dated from 2004 to 2007 which reflect treatment for the service-connected low back disorder, but these records fail to demonstrate the symptomatology and range of motion measurements specified under the 40 percent evaluation. While diagnostic records dated in January 2004 reflect "moderate degenerative changes of the superior portions of both sacral iliac joints" and "minimal spurring of the superior and anterior S1 end-plate," these findings are clear for any signs of ankylosis, and they are further absent any indication of what the Veteran's range of motion measurements might be. At the November 2004 VA joints examination, the Veteran provided his medical and military history and described continual discomfort in the lumbar area with radiation into the waistline with no peripheral radiation. Examination of the lumbar spine revealed the Veteran to have a normal posture and gait and he was shown to have flexion to 90 degrees, extension to 30 degrees, side bending to 45 degrees, and rotation to 45 degrees. At the February 2006 VA examination, the Veteran's posture was shown to be normal, and his flexion was no worse than 40 degrees. Despite experiencing pain at 20 degrees, the Veteran had flexion to 40 degrees with no additional limitation of motion during repetitive movement due to pain, fatigue, weakness or lack of endurance. In addition, the examiner did not observe any findings of ankylosis in the cervical and/or thoracolumbar spine. Outpatient records from the Keesler Air Force Base Medical Center, and dated from September 2006 to July 2007, are clear for any abnormalities in the thoracolumbar spine. Records from Alton Ochsner Medical Foundation, and dated from July 2006 to July 2007, are also clear for any range of motion measurements, or findings of ankylosis in the thoracolumbar spine. Review of VA treatment records dated from January 2004 to July 2007 are also absent any findings of ankylosis, nor do these records indicate that the Veteran had flexion to 30 degrees or less. Indeed, a March 2007 letter from the Veteran's private physician, C.L., M.D., indicates that the Veteran was involved in a motor vehicle accident in November 2006 and had begun experiencing increasing back pain with a burning sensation that radiated into the posterior right buttocks, posterior right thigh, posterolateral right calf and the dorsum of the right foot since this time. However, on physical examination, Dr. L. described the back as "[u]nremarkable." A collective review of all these records does not show that the Veteran has had incapacitating episodes with a total duration of at least four weeks, but less than six weeks, anytime between May 6, 2004 to July 26, 2007. At the February 2006 VA examination, it was noted that the Veteran had been prescribed bed rest twice in the past year. At the July 2007 VA examination, the Veteran reported to have had fifty incidents of incapacitation totaling 150 during the past year. Regardless of these statements, there are no treatment records documenting the Veteran as having had bed rest prescribed by the physician due to his spine disability during the preceding year. Indeed, the medical evidence of record is negative for any evidence or documentation indicating that the Veteran has been prescribed with bed rest by any of his physicians or treatment providers during the period between May 6, 2004 to July 26, 2007. Based on the evidence of record prior to July 26, 2007, a rating in excess of 20 percent was not warranted under Diagnostic Codes 5237-5242 in the absence of evidence demonstrating forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Indeed, it was not until the July 2007 VA examination that the Veteran was shown to have flexion to 15 degrees during range of motion exercises, and entitlement to a 40 percent disability rating for the service-connected lumbar spine disability arose. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating for the relevant period prior to July 26, 2007. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. The Board also acknowledges the objective medical findings, which reflect the Veteran's complaints of pain when conducting his range of motion exercises. However, as previously noted, the February 2006 VA examiner did not observe evidence of additional limitation of motion following repetitive movement due to pain, fatigue, weakness or lack of endurance. Furthermore, the Board does not find that the Veteran's limited movement has resulted in functional loss, as the February 2006 VA examiner noted that the Veteran bent over to remove his socks and shoes without any outward sign of discomfort. In addition, the February 2006 VA examiner noted that the Veteran's low back disability had no effect on his ability to groom himself, a mild effect on his ability to dress and bathe himself, and a moderate effect on his ability to shop, exercise, travel, feed himself, perform his chores and participate in sports and recreational activities. The examiner further noted that the degree of pain was not supported by the examination. As such, the Board finds that the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 20 percent disability evaluation for the relevant period prior to July 26, 2007. Therefore, an evaluation in excess of 20 percent for the Veteran's low back disability is not warranted for the relevant period prior to July 26, 2007. In reaching this determination, the Board has considered the Veteran's assertions regarding the severity of his low back disability during the period on appeal and his belief that the effective date of his 40 percent rating should date back to May 6, 2005, the date of his claim. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including both examination reports, include the information necessary to rate the Veteran's disability in accordance with the rating criteria and both examiners considered the Veteran's reported symptomatology. To the extent that the Veteran seeks an earlier effective date, there simply is no legal authority for the Board to assign an earlier effective date as this is the earliest possible effective date for the grant of benefits shown by the evidence of record. Prior to the examination results of July 26, 2007, the objective evidence did not reflect that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2) (2012). Thus, when considering the overall evidence of record, including the Veteran's statements, the Board finds that an effective date prior to July 26, 2007 for the grant of a 40 percent disability rating for the Veteran's service-connected low back disability is not warranted. The evidence does not support a finding that the criteria for a 40 percent rating under the General Rating Formula for diseases and Injuries of the Spine (Diagnostic Codes 5235-5243) were met prior to July 26, 2007. And there was no pending claim or unadjudicated claim for increase before the Veteran filed his current claim for increase in May 2005. For these reasons, the preponderance of the evidence is against the claim for an effective date earlier than July 26, 2007 for the 40 percent rating for the low back disability, and there is no reasonable doubt to be resolved. Earlier Effective Date for the Right Elbow Disability The Veteran similarly argues that he is entitled to an earlier effective date for the assignment of a 20 percent evaluation for degenerative joint disease with bursitis of the right elbow. He argues that the effective date should go back to August 26, 2005, when he filed his claim for an increased evaluation for the service-connected right elbow disorder. See April 2013 Hearing Transcript, p. 13. The procedural history in this case shows that the Veteran's claim for service connection for bursitis of the right elbow was granted by the RO in the October 1997 rating decision, and evaluated as noncompensably disabling, effective June 1, 1997. In the March 1999 rating decision, the RO increased the disability rating for the service-connected right elbow bursitis to 10 percent disabling, effective November 7, 1998. The January 2000 rating decision denied a disability rating in excess of 10 percent for the service-connected right elbow disability. It does not appear that the Veteran has appealed any of these previous rating decisions. The Veteran submitted a claim for an increased evaluation for the right elbow in July 2004. In a December 2004 rating decision, the RO denied an evaluation in excess of 10 percent for the Veteran's right elbow and continued the 10 percent disability rating in effect as of November 7, 1998. The Veteran claims to have submitted a statement seeking a higher rating for the right elbow disability in August 2005. Although a review of the evidence of record is absent documentation reflecting as such, in the March 2006 rating decision, the RO indicated that the Veteran did submit a claim for an increased evaluation of the right elbow disability that was received at the RO on August 26, 2005. As such, the Board resolves reasonable doubt in favor of the Veteran and accepts that a claim for a higher rating for the right elbow disability was filed and received at the RO on August 26, 2005. The Veteran's right elbow has been evaluated under Diagnostic Code 5019, bursitis, which provides for rating on limitation of motion of the affected part or as degenerative arthritis (Diagnostic Code 5003). The rating criteria provided for limitation of motion of the elbow and forearm are found under 38 C.F.R. § 4.71a, Diagnostic Codes 5206-5208 and 5211-5213. 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. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The Veteran is right handed and as such, major, as opposed to minor, extremity disability ratings are applicable. 38 C.F.R. § 4.69. Under Diagnostic Code 5206 (which contemplates limitation of flexion), a 20 percent evaluation is applied when flexion of the forearm is limited to 90 degrees; a 30 percent evaluation is applied when flexion is limited to 70 degrees; a 40 percent evaluation is applied when flexion is limited to 55 degrees; and a 50 percent evaluation is applied when flexion is limited to 45 degrees. Under Diagnostic Code 5207 (which contemplates limitation of extension), a 20 percent evaluation is for application when extension of the forearm is limited to 75 degrees; a 30 percent evaluation is applied when extension is limited to 90 degrees; a 40 percent evaluation is applied when extension is limited to 100 degrees; and a 50 percent evaluation is applied when extension is limited to 110 degrees. Under Diagnostic Code 5208 (which contemplates both limitation of flexion and extension), 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. Also, pursuant to Diagnostic Code 5211 (which contemplates impairment of the ulna), a 20 percent evaluation is assigned for nonunion in the lower half of the ulna; a 30 percent evaluation is assigned when there is nonunion of the upper half of the ulna without loss of bone substance or deformity; and a 40 percent evaluation is assigned for nonunion of the upper half of the ulna with loss of bone substance and marked deformity. Under Diagnostic Code 5212 (which contemplates impairment of the radius), a 20 percent rating is assigned for nonunion of the radius in the upper half; a 30 percent rating is assigned for nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity; and a 40 percent rating is assigned for nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch or more) and marked deformity. Under Diagnostic code 5213 (which contemplates impairment of supination and pronation of the forearm), supination of the forearm limited to 30 degrees or less is rated 10 percent disabling for the major side. 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 for the major side; limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling for the major side. Also, 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 for the major side; loss of supination or pronation due to bone fusion, with the hand fixed in full pronation, is rated 30 percent disabling for the major side; and loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling for the major side. In this case, the Board must determine if entitlement to a 20 percent evaluation was shown between August 26, 2004 (one year prior to the date of claim) and July 26, 2007 (the current effective date). 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The evidence of record includes medical treatment records and examination reports dated from 2004 to 2007, all of which show treatment for the service-connected right elbow. In July 2005, the Veteran presented at his physician's office (C.K., M.D.), with complaints of pain in both elbows that had been ongoing for the past 15-20 years. According to the Veteran, the pain had worsened recently, and was located on the medial side of both elbows on the ulnar groove. The Veteran also noted that he has occasional numbness in the fourth and fifth fingers which made him weak and caused him to drop things frequently. He was assessed with ulnar entrapment syndrome bilaterally. At an August 2005 treatment visit, Dr. K. noted that x-rays of the elbow revealed large olecranon spurs reflecting chronic triceps tendonitis. He also noted that the Veteran had good motion in his elbow. In October 2005, the Veteran underwent an excision of olecranon osteophyte of the right elbow. At the February 2006 VA examination, the Veteran provided his medical history and reported to have injured his elbows in a 1981 helicopter crash and parachute fall. He described symptoms of pain, weakness and stiffness in his elbows. On physical examination, the Veteran had flexion to -40 degrees during both active and passive range of motion, with pain beginning at 0 degrees and ending at -40 degrees. Although the examiner observed limitation of motion on repetitive use, he still noted that range of motion was 0 to -40 degrees. The Veteran also had extension to -50 degrees during both active and passive range of motion, with pain beginning at 0 degrees and ending at -50 degrees. Range of motion was also 0 to -50 degrees during repetitive motion. In addition, the Veteran's range of motion during pronation and supination was 0 to 70 degrees during both active and passive range of motion, with pain beginning at 0 degrees and ending at 70 degrees. The examiner did not observe additional limitation of motion on repetitive use, and found no signs of joint ankylosis or neurological abnormalities associated with the right elbow. In March 2006, the Veteran was admitted to Slidell Memorial Hospital with complaints of progressive pain in the right elbow for the past fifteen year period. Dr. K noted that findings from the Veteran's right elbow magnetic resonance imaging (MRI) were "compatible with significant changes of the distal end of the tendon with bone edema at the olecranon and partial tearing of the triceps, and changes compatible with tendinosis." The Veteran was assessed with chronic triceps tendonitis in the right elbow and underwent surgery to repair this condition VA treatment records dated from July 2006 to April 2007 reflect that the Veteran underwent rehabilitative care following his March 2006 surgery. At a VA treatment visit dated on July 17, 2006, the VA staff physician noted that the Veteran's right elbow flexion was limited to 30 degrees. During a September 2006 VA treatment visit, the Veteran described ongoing pain in the right elbow, and was shown to have flexion to 74 degrees and extension to 93 degrees. He was also shown to have supination and pronation to 20 degrees. The March 2007 VA examiner described the Veteran's right elbow condition as stable since his March 2006 surgery. On physical examination, the Veteran's range of motion was shown to be 50 to 120 degrees with pain beginning at 50 degrees and ending at 120 degrees. The examiner did not observe limited movement on repetitive motion. However, an April 2007 VA treatment report reflects that while the Veteran's elbow flexion was described as being within functional limitations (WFL), he was also shown to have extension ranging between 122/135 degrees. The remainder of the VA and private treatment records prior to the July 2007 VA examination are clear for any findings pertinent to the issue on appeal. At the July 2007 VA examination, the Veteran reported to experience weakness when lifting, writing or moving the right arm in and out, giving way when lifting or trying to get up, lack of endurance, and fatigability with weaker muscles and aching. On examination of the right elbow, he was shown to have flexion to 90 degrees, extension to 40 degrees, and supination and pronation to 60 degrees. In considering the evidence of record, and specifically taking into consideration Diagnostic Codes 5206 and 5207, the Board finds that the Veteran is entitled to a 50 percent disability rating effective no earlier than July 17, 2006, and extending until July 26, 2007, for the service-connected right elbow bursitis. Indeed, these VA treatment visits were within several months of his March 2006 right elbow surgery and demonstrate that the Veteran was undergoing post-surgical rehabilitative care for his right elbow. While the September 2006 VA treatment report and March 2007 VA examination report revealed some level of improvement in the Veteran's range of motion during flexion and extension, the majority of the treatment records during this time period demonstrate variable limitation of motion findings as the Veteran's right elbow was still healing. Indeed, while the Veteran was shown to have flexion to 90 degrees during the March 2007 VA examination, it cannot be said that the preponderance of the evidence for the period from July 17, 2006 to July 26, 2007 is against a finding that the Veteran has flexion of the elbow limited to 90 degrees or less and extension of the elbow limited to 75 degrees or more. Further, the April 2007 VA treatment report, which took place after these treatment visits, reflects that the Veteran's right elbow extension was limited to 122/135 degrees - a level sufficient in warranting a 50 percent disability rating. Accordingly, taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings of DeLuca, supra, the Board finds that the severity of the right elbow disability for the period from July 17, 2006 to July 26, 2007 is more appropriately reflected by a 50 percent evaluation. The benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5206-5207. In addition, the Board finds that an evaluation in excess of 10 percent for the Veteran's right elbow disability is not warranted for the relevant period prior to July 17, 2006 as the objective evidence of record does not show that an increase in disability had occurred prior to July 17, 2006. 38 C.F.R. § 3.400(o)(1) (2012). The Board acknowledges the February 2006 VA examination findings which reflect that the Veteran's range of motion during flexion and extension was limited to -40 degrees and -50 degrees, respectively. Unfortunately, the Board finds these examination results to be unclear and inconsistent with the findings both prior to and after the examination. Negative numerical findings do not correspond with any of the criteria provided under the relevant diagnostic codes. Moreover, these examination results did not demonstrate the criteria necessary to establish a 20 percent rating or higher for the right elbow disability prior to July 26, 2007. Specifically, the Veteran did not have flexion limited to 90 degrees or extension limited to 75 degrees. Also, on pronation, motion was not lost beyond last quarter of the arc as the Veteran was close to reaching full pronation when performing this exercise. In addition, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent for the right elbow disability for the period from July 17, 2006 to July 26, 2007. Indeed, the Veteran has not been shown to have unfavorable ankylosis of the right elbow at an angle of less than 50 degrees or with complete loss of supination or pronation. See 38 C.F.R. § 4.71a, Diagnostic Code 5605. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected right elbow disability for the period from July 17, 2006 to July 26, 2007 is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 50 percent rating assigned herein, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. The Board also acknowledges the objective medical findings, which reflect the Veteran's complaints of pain when conducting his range of motion exercises. While the February 2006 VA examiner commented that the Veteran's joint function was additionally limited by fatigue after repetitive use, he did not observe additional limitation of motion due to weakness, lack of endurance, and incoordination. Furthermore, the February 2006 VA examiner noted that the Veteran was able to move both elbows effortlessly and without "outward subjective groaning" when putting on his long sleeve sweater. The examiner also noted that while undergoing his low back examination, the Veteran was able to grasp a shelf that was eight inches below his shoulder level while extending both hands and elbows completely. In addition, the February 2006 VA examiner noted that the Veteran's right elbow disability had a mild effect on his ability to dress, bathe, groom and feed himself, as well as a mild effect on his ability to shop, exercise, travel, perform his chores and participate in sports and recreational activities. The examiner further noted that the degree of pain was not supported by the examination. Therefore, an evaluation in excess of 10 percent for the Veteran's right elbow disability is not warranted for the relevant period prior to July 17, 2006. In addition, the March 2007 VA examiner did not observe additional limitation of motion during repetitive range of motion testing. As such, the Board finds that the effect of the pain in the Veteran's right elbow is contemplated in the currently assigned 50 percent disability evaluation for the relevant period from July 17, 2006 to July 26, 2007. Therefore, an evaluation in excess of 50 percent for the Veteran's right elbow disability is not warranted for the relevant period from July 17, 2006 to July 26, 2007. In the present case, the evidence shows that a 50 percent rating for the Veteran's right elbow disability is warranted from July 17, 2006, but no earlier. In addition, the Veteran is entitled to a 50 percent rating for the period from July 17, 2006 to July 26, 2007. To the extent that the Veteran seeks an even earlier effective date, there simply is no legal authority for the Board to assign an earlier effective date as this the earliest possible effective date for the grant of benefits shown by the evidence of record. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). In sum, the Veteran is entitled to a 50 percent rating for the service-connected right elbow disability, effective no earlier than July 17, 2006, and extending no later than July 26, 2007. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, (1990). Finally, the Board also acknowledges the November 2008 notice of disagreement (NOD) wherein the Veteran alleged there to be clear and unmistakable error (CUE) with the July 2008 rating action. In his statement, the Veteran argued that he was entitled to effective dates prior to July 26, 2007 for the assigned 40 percent disability rating for the low spine disability and for the assigned 20 percent rating for the right elbow disability. The November 2008 NOD was a timely appeal of the July 2008 rating decision as it was initiated within one year of the July 2008 rating action. In that respect, the July 2008 rating action is not a final decision. See 38 C.F.R. § 20.302 (2012). Therefore, the non-final July 2008 rating action is not a valid subject of a CUE claim. See 38 C.F.R. § 3.105(a) (2012) (CUE claims apply to previous RO determinations that are final and binding). Because a CUE claim cannot be based on a non final decision, there remains no allegation of errors of fact or law for appellate consideration regarding CUE in the July 2008 rating decision awarding higher disability ratings in the amount of 40 percent and 20 percent for the service-connected low back and right elbow disabilities, respectively. Indeed, it does not appear that the Veteran has attacked a final decision, but has rather used the term CUE in disagreeing with the claims that are on direct appeal. Moreover, the Veteran failed to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). As such, the Board dismisses any potential allegations of CUE with the July 2008 rating action. This determination by the Board does not prejudice the Veteran as the standard for showing CUE is more onerous than successfully appealing the decision. ORDER An effective date prior to July 26, 2007, for the grant of a 40 percent rating for a lumbosacral strain; degenerative joint disease, lumbar spine is denied. An effective date no earlier than July 17, 2006 for the grant of a 50 percent rating for degenerative joint disease with bursitis, right elbow is granted. Subject to the provisions governing the award of monetary benefits, a 50 percent disability evaluation for degenerative joint disease with bursitis, right elbow for the period from July 17, 2006 to July 26, 2007, is granted. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs