Citation Nr: 1333544 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 13-14 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a higher rating for degenerative joint disease (DJD), status post fracture, right elbow (right elbow disability), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2012, a statement of the case was issued in March 2013, and a substantive appeal was received in May 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran does not have right elbow flexion limited to 90 degrees or right elbow extension limited to 75 degrees, pronation is not limited to beyond the last quarter of the arc, supination is not limited to 30 degrees or less, and flexion and extension are also not limited to 100 degrees and 45 degrees, respectively. 2. The Veteran does not have ankylosis of the elbow, flail joint impairment, radial or ulnar malunion or impairment, or loss of bone fusion impairing supination or pronation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right elbow disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.71a, Diagnostic Code 5207-5010 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify VA has satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In a July 2010 letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, he was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). The July 2010 letter was sent prior to the Veteran's December 2011 rating decision giving rise to this appeal. Therefore, VCAA notice was timely in this case. See Pelegrini, 18 Vet. App. 112. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist The Board finds that the VA complied with the assistance provisions set forth in the law and regulations. All available pertinent records, including in-service, private, and VA records have been obtained. All pertinent medical records and VA examination reports are of record and contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to provide probative medical evidence adequately addressing the issue decided below. No additional pertinent evidence has been identified by the Veteran as relevant to this appeal. In particular, there is no argument or indication that the disability has increased in severity since the last medical evaluation of record. In so finding, the Board acknowledges that the Veteran states in his February 2012 notice of disagreement that his pain at the time had become prohibitive of welding overhead and further impeded his ability to perform heavy lifting. However, in light of the fact that complaints of interference with his tasks at work and difficulty lifting heavy objects have been consistently set forth at various stages of the appeal, the Board does not consider this to reasonably raise a claim that his condition has worsened since his November 2011 VA examination. The Veteran was afforded VA examinations in August 2010, October 2010, and November 2011. A VA medical opinion was provided in December 2011. The Board finds that these examinations and opinions were thorough, and that the examiners adequately addressed the symptoms listed under the relevant criteria in the applicable diagnostic codes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). Under these circumstances, no further action is necessary to assist the Veteran with this appeal. As such, the Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Laws and Regulations The Veteran seeks entitlement to an initial rating greater than 10 percent for his service-connected right elbow DJD with limited motion. 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). Here, the Veteran's claim for an increased rating was received June 10, 2008, and does not arise from the initial assignment of a disability rating. Therefore the applicable rating period on appeal extends to June 4, 2009, one year prior to the date the claim was received. 38 C.F.R. § 3.400(o)(2) (2012). The Veteran's right elbow disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5205 through 5213, and Diagnostic Code 5010 for arthritis due to trauma. The Board notes initially that the evidence of record does not reflect any ankylosis of the elbow, flail joint fracture, or any nonunion of the radius or ulna. Therefore, the salient diagnostic codes here are those addressing limitation of motion. See id. at Diagnostic Codes 5206, 5207, 5208, 5213. A 10 percent disability rating is warranted for forearm flexion limited to 100 degrees, or extension limited to 60 degrees. A higher rating of 20 percent is warranted where flexion is limited to 90 degrees, or extension is limited to 75 degrees. See id. at Diagnostic Codes 5206-07. Alternatively, a 20 percent rating is also warranted where flexion is limited to 100 degrees, and extension to 45 degrees. Id. at Diagnostic Code 5208. A 10 percent disability rating is also warranted where supination is limited to 30 degrees or less. A higher rating of 20 percent is not warranted unless pronation is limited with loss of motion beyond the last quarter of the arc, or the hand is fixed near the middle of the arc or moderate pronation. Id. at Diagnostic Code 5213. Furthermore, VA must consider granting a higher rating when a Veteran exhibits functional loss due to pain, weakness, fatigability, or incoordination, and such factors are not contemplated in the rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Special note must be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion. 38 C.F.R. § 4.59. 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). Factual Background and Analysis Upon August 2010 VA examination, the Veteran's range of motion testing showed right elbow flexion from zero to 135 degrees, extension from zero to 180 degrees, pronation from zero to 65 degrees, and supination from zero to 68 degrees. The examiner noted no objective evidence of painful motion and no additional limitation of motion upon repetition. Crepitus was noted, along with tenderness to the medial aspect of the joint. X-rays revealed residuals of an old fracture, along with degenerative change, though no acute osseous abnormality was noted. The examiner provided a diagnosis of right elbow DJD with decreased range of motion. The Veteran endorsed having decreased mobility, problems lifting and carrying objects, and pain associated with his right elbow. The Veteran was afforded another VA examination in November 2011. His range of motion testing showed right elbow flexion of 120 degrees, extension limited to 20 degrees, and supination limited to 45 degrees. No impairment of pronation was noted. No additional limitation of motion was noted upon repetition, nor was any objective evidence of painful motion noted. In addition, the Veteran displayed normal muscle strength in the right elbow and forearm, and x-rays showed osteoarthritic changes in the ulnar trochlear joint. No radial or ulnar fractures were detected. The examiner noted the Veteran's range of motion was less than normal. The Veteran during the examination endorsed having problems with heavy lifting. The Veteran also underwent a VA nerve conduction study and electromyogram (NCS EMG) in October 2011, the results of which are considered along with conflicting evidence in a December 2011 medical opinion. The examiner at the time opined that there was no electrophysiologic evidence of radiculopathy, other neuropathy, or myopathy in either arm. The Veteran was also then diagnosed with moderate carpel tunnel syndrome, deemed unrelated to his service connected disability. In addition to medical records, the Veteran has made lay statements regarding his symptoms in both his February 2012 notice of disagreement and his May 2013 substantive appeal. In both statements the Veteran claims he cannot continue to weld overhead or handle heavy equipment or materials, as his elbow sometimes locks up due to a broken screw in his right arm. The Veteran also mentions that he could lose his job due to injury, or because of lack of endurance, incoordination and flare-ups arising from his right elbow disability. After reviewing the relevant evidence of record, the Board finds that criteria for a rating in excess of 10 percent is not warranted given the current condition of the Veteran's right elbow disability. Examination reports show he is right-handed. The Veteran's limitation of motion as reflected in his most recent VA examination, while less than normal, is not severe enough to warrant a 20 percent rating for flexion, extension, or pronation and supination. Furthermore there is no medical evidence of ankylosis of the elbow, impairment of the flail joint, loss of bone fusion, malunion of the radius or ulna, or any other radial or ulnar impairment. As such, the Veteran is entitled only to a 10 percent rating under applicable criteria. 38 C.F.R. § 4.59. In so finding, the Board is mindful of the Veteran's statements of pain and the functional effects of his disability. Such statements are deemed competent evidence, and must be considered with the clinical evidence of record and the pertinent rating criteria. 38 C.F.R. § 3.159(a)(2) (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran's statements must be weighed against the results of his August 2010 and November 2011 VA examinations, both of which found that the Veteran experienced no additional limitation of motion upon repetitive testing and no objective signs of painful motion. In addition, no signs of weakness, excess fatigability, incoordination, swelling, deformity, or atrophy of disuse were noted during the November 2011 VA examination. While the Veteran is fully competent to report symptoms and effects he personally observes, the VA examiners' opinions are well supported, consider objective and subjective data, including medical evidence, which entitles them to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion is dependent upon whether the opining clinician (1) was fully informed of the pertinent factual premises (i.e., history) of the case; (2) provided a fully articulated opinion; and (3) supported that opinion with analysis). Furthermore, the examiners are singularly competent to observe objective and medical evidence of pain, fatigue, weakness, and other factors contributing to functional loss of motion. Considering the congruency of the relevant November 2011 and October 2010 examination findings, the Board finds them more probative than the Veteran's statements on the issue of functional loss. In addition to rating the Veteran's musculoskeletal symptoms, the Board must also consider other symptoms. In particular, the Board here must determine whether the Veteran is entitled to a separate rating for the intermittent numbness in his hands for which he received testing in October 2011. Diagnostic Codes 8510-8730 address diseases of the peripheral nerves. 38 C.F.R. § 4.124a. As the examiner at the time attributed the numbness to the Veteran's unrelated moderate carpel tunnel syndrome and found no other evidence of radiculopathy, other neuropathy, or myopathy in either arm, the Board finds that a separate rating for neurological symptoms is not warranted. Extraschedular Considerations 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 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 United States Court of Appeals for Veterans Claims (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 within the criteria found in the relevant Diagnostic Code for the disability at issue. While the Veteran claims his disability makes completing certain tasks at work more difficult, he has retained his job, which he has held for many years, throughout the pendency of the appeal, with the only exceptions being a brief period following surgery to relieve his carpel tunnel syndrome. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Accordingly, after reviewing all competent and credible evidence of record, the Board finds that the preponderance of the evidence shows the criteria for a rating in excess of 10 percent for the Veteran's right elbow disability have not been met. Therefore, while mindful of the benefit-of-the-doubt rule, the Board finds that it is not for application here, and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating in excess of 10 percent for the Veteran's right elbow disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs