Citation Nr: 1326870 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-12 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for lateral epicondylitis of the right elbow. 2. Entitlement to a rating in excess of 10 percent for lateral epicondylitis of the left elbow. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from November 1984 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2010, a statement of the case was issued in April 2011, and a substantive appeal was received in April 2011. The Board notes that the RO issued a statement of the case in April 2012 with regard to the Veteran's claim for a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). However, the Veteran did not file a substantive appeal with regard to this claim. As such, this issue is not before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2012). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. FINDINGS OF FACT 1. The Veteran's service-connected lateral epicondylitis of the right elbow is not manifested by limitation of flexion of the forearm to 90 degrees or less. 2. The Veteran's service-connected lateral epicondylitis of the left elbow is not manifested by limitation of flexion of the forearm to 90 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lateral epicondylitis of the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5019-5206 (2012). 2. The criteria for a rating in excess of 10 percent for lateral epicondylitis of the left elbow have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5019-5206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with pre-adjudication notice by letter dated in July 2009. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and private treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran a pertinent VA examination in April 2010. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on his claims at this time. Laws and Regulations The present appeal involves the Veteran's claims that the severity of his service-connected lateral epicondylitis of the right elbow and lateral epicondylitis of the left elbow warrant higher disability ratings. For purposes of this appeal, the Board notes that an April 2010 VA examination reveals that the Veteran is right hand dominant. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the 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. In the present case, 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. The Veteran's service-connected lateral epicondylitis of the right elbow and lateral epicondylitis of the left elbow have each been rated by the RO under the provisions of Diagnostic Code 5019-5206. Diagnostic Code 5019 indicates that bursitis is rated on limitation of motion of affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Code 5019. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion: (1) x-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation; and (2) x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal flexion of the elbow is to 145 degrees. Normal forearm pronation is to 80 degrees. Normal forearm supination is to 85 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5206, the following ratings apply for the major forearm (in this case, the Veteran's right forearm). A noncompensable rating is warranted for flexion limited to 110 degrees. A 10 percent rating is warranted for flexion limited to 100 degrees. A 20 percent rating is warranted for flexion limited to 90 degrees. A 30 percent rating is warranted for flexion limited to 70 degrees. A 40 percent rating is warranted for flexion limited to 55 degrees. A maximum rating of 50 percent is warranted for flexion limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5206, the following ratings apply for the minor forearm (in this case, the Veteran's left forearm). A noncompensable rating is warranted for flexion limited to 110 degrees. A 10 percent rating is warranted for flexion limited to 100 degrees. A 20 percent rating is warranted for flexion limited to 90 degrees and to 70 degrees. A 30 percent rating is warranted for flexion limited to 55 degrees. A maximum rating of 40 percent is warranted for flexion limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. Increased Ratings An August 2005 private treatment record noted the Veteran's complaints of swelling of his right elbow for approximately one week. He denied any trauma to his elbow. Examination revealed a small fluid accumulation on the right olecranon bursa which was slightly tender; however, there was no overlying erythema or any other lesion. The elbow examination was otherwise normal. He was assessed with bursitis of the right elbow, was advised to take Advil for discomfort, and was told that this would probably take two or three months to go away. At an April 2010 VA joints examination, the Veteran complained of right and left elbow pain, which he treated with Aspirin and Tylenol as needed. He denied any flare-ups of pain in either elbow. He also reported associated symptoms of stiffness (both elbows), giving way or instability (both elbows), locking (left elbow), swelling (right elbow), and warmth or redness (both elbows). For both elbows, the effect on his occupation (as a postal worker) was noted to be limitation of lifting, and the effect on his daily activities was noted to be "none" with regard to activities of daily living and "limits" with regard to chores, sports, and exercise. He reported that he wore an elbow pad frequently for both elbows. Examination revealed no deformity, tenderness, crepitation, or instability for either elbow. Despite a notation that "cogwheeling, and other Waddell's Signs renders ROM [range of motion] unreliable for rating purposes" for the flexion measurement for both of the Veteran's elbows, the April 2010 examiner noted that active and passive range of motion for both elbows measured as follows: 120 degrees of flexion (with pain at 120 degrees); 0 degrees of extension (with no pain); 70 degrees of pronation (with pain at 70 degrees); and 90 degrees of supination (with pain at 90 degrees). The examiner noted that, with repetition of all the motions for both elbows, there was no loss of motion secondary to pain, weakness, or lack of endurance. There was no joint ankylosis for either elbow. The Veteran was diagnosed with bilateral epicondylitis. The Veteran has not indicated at any time that his symptoms of right or left elbow disability have worsened since the time of his April 2010 VA examination. After reviewing the evidence, the Board finds that a rating in excess of 10 percent is not warranted at this time for either elbow under applicable rating criteria. The Veteran has reported his complaints, including pain. However, under Diagnostic Code 5206, there must be evidence of limitation of flexion to 90 degrees or less to warrant a rating in excess of 10 percent. Examination showed that flexion of both elbows measured 120 degrees, and the examiner expressly reported that there was no loss of motion secondary to pain, weakness, or lack of endurance after repetitive use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Turning to other applicable codes, the Board notes that the Veteran's extension was not 75 degrees or more to warrant a higher rating under Diagnostic Code 5207. See 38 C.F.R. § 4.71a, Diagnostic Code 5207. The Board also notes that Diagnostic Code 5208 is not for application since flexion is not limited to 100 degrees and extension to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5208. The Board additionally notes that there is no evidence of: (1) ankylosis, or (2) joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, or impairment of flail joint to warrant higher ratings under Diagnostic Codes 5205 and 5209, respectively. See 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5209. Also, staged ratings are not for application since the Veteran's lateral epicondylitis of the right elbow and lateral epicondylitis of the left elbow are adequately contemplated by the existing 10 percent ratings during the entire time period in question. The Board recognizes the Veteran's contentions. However, the Board is bound to apply regulatory rating criteria. For reasons discussed above, the evidence is against a finding that the current impairment warrants ratings in excess of 10 percent under diagnostic criteria. Should the severity of the lateral epicondylitis of the right elbow and/or lateral epicondylitis of the left elbow increase in the future, the Veteran may always file a claim for an increased rating. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 10 percent for lateral epicondylitis of the right elbow is not warranted. Entitlement to a rating in excess of 10 percent for lateral epicondylitis of the left elbow is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs