Citation Nr: 1417393	
Decision Date: 04/17/14    Archive Date: 05/02/14

DOCKET NO.  06-16 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

J. Connolly, Attorney


INTRODUCTION

The Veteran served on active duty from January 1971 to March 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In a December 2006 rating decision, the RO increased the evaluation of the Veteran's service-connected residuals of a left forearm fracture disability from 10 percent disabling to 20 percent disabling, effective May 3, 2004, the date of the claim for an increased evaluation.  In an October 2010 rating decision, the evaluation of the Veteran's left forearm disability was further increased to 40 percent disabling, effective September 10, 2009.  Despite the increases in the evaluations of the Veteran's residuals of a left forearm fracture disabilities, the matter of higher ratings remained on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran appeared and testified at a personal hearing in July 2008 before the undersigned Veterans Law Judge.  In February 2011, the Board remanded this case.  

In October 2012, the Board issued a decision that partially granted the claim of entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture.  In addition, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU).  

Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's October 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the Veterans' Law Judge that conducted the July 21, 2008 Board hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or decision from the Board.  Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place.  The matter that was remanded was unaffected.  This decision herein satisfies the Veteran's request.  

In compliance with the foregoing, in March 2014, the Board vacated the portion of the Board decision that partially granted the claim of entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture.  The remainder of the October 2012 Board decision remained undisturbed, that is, the remand for development on the TDIU issue.  The Board notes that the matter of the TDIU is still under development at the RO/AMC and is not subject to appellate review herein at this time.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  Prior to September 10, 2009, the Veteran's residuals of a left forearm fracture were not productive of limitation of flexion of the forearm to 55 degrees or less, limitation of extension of 100 degrees or more, nonunion of the radius and ulna with nonunion and flail joint, nonunion of the ulna in the upper half of the radius with false movement, impairment of the radius with nonunion in the lower half with false movement and loss of bone substance and marked deformity, loss of supination or pronation due to bone fusion with the hand fixed in supination or hyperpronation, or ankylosis.

2.  From September 10, 2009, the Veteran's residuals of a left forearm fracture were not productive of ankylosis of the left elbow or flail joint. 

3.  From August 19, 2006, the Veteran demonstrated left wrist pain and limited motion, but not ankylosis, as part and parcel of his service-connected residuals of a left forearm fracture.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of  percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture, are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5206 (2013).

2.  The criteria for a separate 10 percent evaluation for associated left wrist pain and limited motion, are met from August 19, 2006. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5214 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Nonetheless, the Board notes that, in a May 2009 letter, the Veteran was informed of the diagnostic codes that the disability may be rated under, and was notified that he may submit evidence regarding the impact of his disability on his employment and daily life.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VCAA letters were sent in May 2004, April 2008, November 2008, May 2009 (the Vazquez letter), and May 2010.  The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also complied with Dingess.

The Board notes that subsequent to the last SSOC which addressed the increased rating issue, the Veteran was examined again by VA in March 2013.  However, with reference to the findings pertaining to the left elbow/forearm and left wrist, the findings were less disabling than those on prior examination findings.  The Board will not disturb the higher rating of 40 percent which has been assigned to the Veteran's left arm/elbow disability and will rate the Veteran based on the more disabling findings of record with respect to the period beginning on September 10, 2009, rather than the most recent examination.  As such, the Board finds that there is no prejudice in reviewing and considering this new evidence without the benefit of an SSOC, particularly since a higher rating for the elbow/forearm or for the wrist, higher than a 40 percent rating, requires ankylosis (of the elbow/forearm or wrist) or flail joint (elbow/forearm), disability manifestations that the Veteran has never had nor does he contend that he has, as explained in detail below.  

The Veteran has also been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), which post-dated the Board hearing, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fully explains the issue and also suggests the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not note the bases of the prior determination or the elements that were lacking to substantiate the claim.  The VLJ, however, asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating.  The VLJ also sought to identify any pertinent evidence not currently associated with the claims and then remanded the case to obtain the evidence, which the Veteran voluntarily referenced.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Further, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ generally complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95.  The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.  Furthermore, the RO/AMC performed all the requested actions set forth in the Board's prior remand decision and the Board is now satisfied there was compliance with the Board's remand directives.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998)

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

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 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  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, 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.  See 38 C.F.R. §§ 4.40, 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.  Thus, 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 Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

Historically, in an August 1974 rating decision, service connection for residuals of a left forearm was granted and a 10 percent rating was assigned under Diagnostic Code 5213. 

In May2004, correspondence was received from the Veteran in which he requested an increased rating.  VA records dated from that month reveal complaints of pain and swelling in the left elbow. Physical examination revealed swelling and decreased range of motion due to pain.  There was no erythema, but there was tenderness over the elbow. An episode of gout was suspected.  The Veteran was given an arm sling. 

In June 2004, the Veteran was afforded a VA examination.  At that time, he reported that he had increased pain as well as weakness in his grip strength. He related that he was having some difficulty with his job as a computer programmer and with driving.  Physical examination revealed that range of motion of the hand was full.  He had normal pronation and supination of the forearm.  He also had full extension and flexion of the elbow.  Grip strength was 4/5, as compared to the right side.  He had normal sensory examination into the digits of the left hand.  Radial pulses were 2+ at the wrist.  There was normal capillary refill.  X-rays revealed a plate along the radius.  There was a healed fracture in the middle third of the radial shaft with restoration of the radial bulb noted.  The hardware appeared intact without evidence of hardware failure.  The diagnosis was history of left forearm fracture requiring plating; fracture demonstrating union and no significant functional deficits.

In August 2006, the Veteran was afforded a VA bones examination.  Range of motion testing revealed that the Veteran's dorsiflexion of the wrist was to 80 degrees, with pain at 60 degrees.  The remainder of the range of motion of the left wrist was full and without pain.  Fatigue, weakness, and lack of endurance were not shown.  On supination, the left elbow/forearm moved to 70 degrees with pain at 60 degrees.  The remainder of the range of motion of the left elbow/forearm was full and without pain.  Fatigue, weakness, and lack of endurance were not shown.  The x-rays were consistent with the prior x-rays.  The diagnosis was left radius fracture status post fixation.  The examiner felt that there was a significant effect on employment due to decreased mobility.  There was a mild effect on his daily activities on chores and exercise.  The Veteran was also afforded a VA joints examination.  The same findings were indicated. 

In a December 2006 rating decision, the disability rating for the left am was increased to 20 percent effective May 3, 2004.  The increase was based on the loss of flexion of the nondominant left arm/elbow.  The diagnostic code was changed to Diagnostic Code 5206.

In April 2008, the Veteran was afforded another VA joints examination.  The Veteran related that he had stiffness and weakness of the left arm/elbow.  Flexion on active motion against gravity was -5 to 140 degrees with no pain.  Passive range of motion was zero to 140 degrees.  Extension on active motion against gravity was 140 to -5 degrees with pain at -5 degrees.  Passive range of motion was 140 to zero degrees.  Pronation on active motion against gravity was 0 to 80 degrees with no pain.  Supination on active motion against gravity was 0 to 80 degrees with no pain.  Ulnar deviation on active motion against gravity was 0 to 40 degrees and radial deviation on active motion against gravity was 0 to 20 degrees; both without pain.  Dorsiflexion on active motion against gravity was 0 to 70 degrees with no pain.  Palmar flexion on active motion against gravity was 0 to 70 degrees, at worse, with no pain.  There was no additional limitation of motion with repetitive use.  Ankylosis and arthritis were not shown.  The examiner commented that the current level of severity/disability was mild and that the Veteran might be having some increased pain including wrist pain due to the use of a cane for his service-connected back disability.  The examiner felt that there was no significant effect on employment of activities at that time.

In July 2008, the Veteran testified at a Board hearing.  With regard to his left forearm, the Veteran testified that he had a lack of strength due to the residuals of a fracture between the elbow and wrist.  With age and other factors, he related that his range of motion had decreased.  He stated that he had a stabbing pain as well as numbness running down his arm which impacted his work since he was a computer programmer.  In addition, he said that the pain increased with use. He indicated that he also experienced stiffness, particularly with cold weather.

In September 2009, the Veteran was afforded VA joints and bones examinations.  At that time, he reported increased weakness in his left wrist.  His wrist range of motion was 0 to 10 degrees on dorsiflexion, 0 to 20 degrees of palmar flexion, 0 to 25 degrees on radial deviation, and 0 to 10 degrees on ulnar deviation.  There was pain on repetitive motion, but no further loss of motion after three repetitions.  The Veteran indicated that he was not currently employed because his contract had not been renewed.  His left wrist disability mildly affected traveling; moderately affected chores and, shopping; and it prevented exercise and sports.  The examiner felt that he current level of severity was moderate to severe based on limitation of motion.

In an October 2010 rating decision, an increased rating of 40 percent was granted for the left forearm disability, effective September 10, 2009, the date of the recent VA examinations.   The grant was based on forearm flexion limitation.

In August 2010, the Veteran was afforded another VA examination which revealed that he was employed full-time as a computer program.  The medical findings were limited to the spine. 

VA outpatient records dated in October 2010 noted that the Veteran had radicular pain down his left arm, extending from his neck. It was generally noted to be neck pain.  In December 2010, the Veteran reported that he had experienced pain and swelling of the left elbow for the past week.  There was mild inflammation and tenderness.  Range of motion was painful, but intact.

In September 2011, the Veteran was afforded another VA examination.  The Veteran related that he would lose grip strength in his left hand and had problems rotating his minor arm.  Examination of the left hand did not reveal any limitations.  Left forearm decreased motion was noted (but exact degrees were not indicated).  The examiner indicated that the Veteran had to compensate at work and home with his right hand due to his left sided disability and pain with problems lifting and carrying due to decreased strength.

When examined in 2013, the Veteran still complained of left elbow pain, but there was no impairment or pain on elbow flexion or extension.  In addition, there was no additional limitation in the range of motion of the elbow and forearm following repetitive-use testing.  There was no functional loss and/or functional impairment of the elbow and forearm.  In addition, the Veteran demonstrated normal strength.  With regard to the left wrist, the Veteran demonstrated left wrist palmar flexion to 80 degrees with no pain and dorsiflexion (extension) to 70 degrees with no evidence of painful motion.  The same findings were presented with repetitive testing.  In sum, the Veteran's left wrist function was near full with only 10 degree loss of motion.

Disabilities of the elbow are rated under the schedular diagnostic criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5205 to 5213.  The schedular criteria provide different ratings for the minor arm and the major arm.  As indicated, the Veteran is right-handed and his minor arm is service-connected.  38 C.F.R. § 4.69.

Normal extension and flexion of the elbow is considered to be from 0 to 145 degrees.  Normal pronation is to 80 degrees, and normal supination is to 85 degrees. 38 C.F.R. § 4.71, Plate I.

Under Diagnostic Code 5206, concerning limitation of flexion of the forearm, limitation of flexion is rated 0 percent when limited to 110 degrees; 10 percent when limited to 100 degrees; 20 percent when limited to 90 degrees (major or minor) or 70 degrees (minor); 30 percent when limited to 70 degrees (major) or 55 degrees (minor); 40 percent when limited to 55 degrees (major) or 45 degrees (minor); and 50 percent when limited to 45 degrees (major). 

Under Diagnostic Code 5207, concerning limitation of extension of the forearm, limitation of extension is rated 10 percent when limited to 45 degrees or 60 degrees (major and minor); 20 percent when limited to 75 degrees (major or minor) or 90 degrees (major); 30 percent when limited to 90 degrees (major) or 100 degrees (minor); 40 percent when limited to 100 degrees (major) or 110 degrees (minor); and 50 percent when limited to 110 degrees (major).  

Under Diagnostic Code 5208, a 20 percent rating is assigned for flexion of the forearm limited to 100 degrees and extension limited to 45 degrees.  Diagnostic Code 5209 provides a maximum 20 percent rating for flail joint fracture.  Diagnostic Code 5210 concerns nonunion of the radius and ulna, with nonunion and flail joint, and provides a 40 percent rating for the minor side.  Diagnostic Code 5211 provides a maximum 30 percent rating for the minor side if there is nonunion of the ulna in the upper half with false movement. Diagnostic Code 5212 concerns impairment of the radius due to nonunion or malunion, with a maximum 30 percent rating for the minor side whether there is nonunion in the lower half, with false movement and loss of bone substance and marked deformity.

Diagnostic Code 5213 provides ratings based on impairment of supination and pronation of the forearm. Normal forearm supination is from 0 degrees to 80 degrees.  Normal forearm pronation is from 0 degrees to 85 degrees.  38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5213, limitation of supination at 30 degrees or less is assigned a 10 percent rating (major or minor).  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 (major or minor).  Limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling (major side) or 20 percent disabling (minor side).  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 (major or minor).  Loss of supination or pronation due to bone fusion with the hand fixed in full pronation is rated 30 percent disabling (major) or 20 percent (minor).  Loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling (major) or 30 percent (minor). 

As noted, prior to September 10, 2009, a 20 percent rating was assigned for the left forearm disability, and, as of that date, a 40 percent rating was assigned.  Turning to the evidence of record, prior to September 10, 2009, the rating criteria for a higher disability rating, more than 20 percent, are not met.

Under Diagnostic Code 5206, for a higher rating to be assigned, the evidence need show limitation of flexion of the forearm to 55 degrees or less.  The Veteran was able to move his left arm, even with pain and weakness, beyond that point.  Under Diagnostic Code 5207, or a higher rating to be assigned based on limitation of extension, the evidence need show limitation of 100 degrees or more.  Again, the Veteran was able to move his left arm, even with pain and weakness, significantly beyond that point.  A rating higher than 20 percent is not available under Diagnostic Codes 5208 and 5209.  The Veteran does not nonunion of the radius and ulna, with nonunion and flail joint; nonunion of the ulna in the upper half with false movement; or impairment of the radius with nonunion in the lower half, with false movement and loss of bone substance and marked deformity, such that higher ratings could be assigned under Diagnostic Codes 5210-5212. 

Diagnostic Code 5213 provides a higher rating (40 percent) if there is loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, but the Veteran does not have bone fusion, with the hand fixed in supination or hyperpronation. 

Also potentially pertinent is Diagnostic Code5205, concerning ankylosis of the elbow, but the Veteran does not have ankylosis of the elbow.  

Thus, a higher rating based on impairment of the left forearm, prior to September 10, 2009, is not warranted.  Similarly, a rating higher than 40 percent is also not warranted after that date as the Veteran does not have ankylosis of the left elbow or flail joint as shown on any of the medical examinations, nor does he assert that is the case. 

The Board observes that the VA examinations also indicate involvement of the left wrist.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5215, regarding limitation of motion of the wrist, a 10 percent rating is assigned for dorsiflexion less than 15 degrees or for palmar flexion limited in line with the forearm.  The 10 percent rating is assigned regardless of whether the involved extremity is the major (dominant) wrist or the minor (non-dominant) wrist and there is no provision for a rating higher than 10 percent..  Diagnostic Code 5214 is relevant to ankylosis of the wrist, which the Veteran does not have. 

According to evidence of record, the Veteran demonstrated painful motion of the left wrist as of August 19, 2006, when he was examined and this has continued consistently thereafter.  The Board finds that the Veteran is competent and credible in his complaints of pain and weakness of the left wrist made at that time and ever since.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  Although his left wrist motion exceeded the level indicated for a 10 percent rating, the Board finds that a 10 percent rating is nevertheless warranted from that date, August 19, 2006, in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as DeLuca and other cited precedent.  The movement of the wrist does not contemplate the same function as the elbow/forearm as it involves another joint and additional disability.  Thus, a separate 10 percent rating is granted from August 19, 2006, for painful and limited motion of the left wrist. 

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 20 percent for the left forearm fracture prior to September 10, 2009, and in excess of a 40 percent rating from that date.  However, the evidence supports a separate 10 percent rating for painful and limited motion of the left wrist under Diagnostic Code 5214 from August 19, 2006. 

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also Thun v. Peake, 22 Vet. App. 111 (2008). 

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's residuals of a left forearm fracture disability, including left wrist disability, are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability level.  The Veteran has not been hospitalized nor has his employment been adversely affected beyond what is contemplated.  He was employed full-time, until recently, with a brief period of unemployment shown to be due to lack of continuation of a contract, not a disability issue.  His overall employment picture due to the left arm/elbow/wrist disability alone is contemplated by the relevant diagnostic codes for which ratings have been assigned above and does not reflect marked interference with employment.  Therefore, referral for consideration of an extraschedular rating is not warranted.


ORDER

An evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture, is denied.

A separate 10 percent evaluation for associated left wrist pain and limited motion, is granted from August 19, 2006, subject to the law and regulations governing the payment of monetary benefits.



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JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs