Citation Nr: 1547366 Decision Date: 11/09/15 Archive Date: 11/13/15 DOCKET NO. 09-31 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right elbow, status post lateral epicondylar fracture. 2. Entitlement to an initial rating in excess of 10 percent for right elbow limitation of supination. 3. Entitlement to an initial compensable rating for right elbow limitation of extension. 4. Entitlement to an initial compensable rating for a right elbow post-operative scar. (Pursuant to BVA Directive 8430 (May 17, 1999) the claims for an effective date prior to March 30, 2004, for the grant of service connection for a right elbow disability will be adjudicated in a separate decision.) WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active duty service from July 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2015, the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's right elbow disability is not productive of ankylosis, flexion limited to at least 90 degrees or less; forearm flexion limited to 100 degrees and extension to 45 degrees; flail joint/joint fracture; nonunion of the radius and ulna; malunion or nonunion of the ulna; and/or malunion or nonunion of the radius. 2. The preponderance of the evidence shows that the Veteran's right elbow disability is not productive of limitation of pronation, with motion lost beyond last quarter of arc, with the hand not approaching full pronation; or motion lost beyond middle of arc. 3. The preponderance of the evidence shows that the Veteran's right elbow disability is not productive of limitation of extension to 45 degrees or more. 4. The preponderance of the evidence shows that the Veteran's right elbow post-operative scar does not cover an area or areas of 144 square inches, it is not unstable, or painful, or otherwise impairs function. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right elbow status post lateral epicondylar fracture have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.71a, Diagnostic Code 5206 (2015). 2. The criteria for a rating in excess of 10 percent for right elbow limitation of supination have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.71a, Diagnostic Code 5213 (2015). 3. The criteria for a compensable rating for right elbow limitation of extension, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.59, 4.71a, Diagnostic Code 5207 (2015). 4. The criteria for a compensable rating for a right elbow post-operative scar have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.118, Diagnostic Code 7805 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As to the claim for an increased rating for right elbow fracture, while the record does not reflect a formal notice was provided to the Veteran, the statement of the case he was provided in November 2014 contains the information and evidence necessary to substantiate the claim, and his correspondences reflects his active participation in the matter. As to the claims for higher initial ratings for the other right elbow disabilities, as the Veteran is appealing from the rating decision that granted service connection for these disabilities , the VCAA notice would have been necessary only for the service connection claim. No such notice is needed for the rating evaluation that was assigned as part of the grant of service connection and immediately appealed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with that regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2010 Board hearing, the VLJ asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran that is not already found in the record. 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. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including his service treatment records as well as his post-service records from the Mayo Clinic and the San Diego VA Medical Center. See 38 U.S.C.A. § 5103A(b). The Veteran was provided a VA examination in October 2013. The Board finds the VA examination is adequate for rating purposes because after a comprehensive examination of the claimant, taking a detailed history from him, and a review of his VA treatment records, the examiner provided an opinion as to the severity of his right elbow disabilities including the scar that allows the Board to rate them under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's electronic claim's files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claim's files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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 considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The RO has assigned 4 distinct disability evaluations for the Veteran's right elbow impairment. Ten percent has been assigned for limitation of flexion; 10 percent for limitation of supination; 0 percent for limitation of extension; and 0 percent for the elbow surgical scar. a. The Right Elbow Orthopedic Disabilities Initially, the Board notes that the October 2013 VA examiner, as well as the earlier October 2008 VA examiner, opined that the Veteran is ambidextrous and these medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, because 38 C.F.R. § 4.69 (2015) provides that the injured hand or most severely injured hand of an ambidextrous individual will be considered the dominant hand for rating purposes, the Board will treat him as right handed when adjudicating the severity of his service-connected right elbow disability. Normal range of motion of the elbow is from 0 degrees extension to 145 degrees flexion. Normal forearm pronation is from 0 to 80 degrees, and normal supination is from 0 to 85 degrees 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5206 provides that limitation of flexion warrants a non compensable evaluation (both minor and major elbow) when limited to 110 degrees, warrants a 10 percent evaluation (both minor and major elbow) when limited to 100 degrees, warrants a 20 percent evaluation (both minor and major elbow) when limited to 90 degrees, warrant a 20 percent evaluation (minor elbow) and 30 percent evaluation (major elbow) when limited to 70 degrees, warrant a 30 percent evaluation (minor elbow) and 40 percent evaluation (major elbow) when limited to 55 degrees, and warrant a 40 percent evaluation (minor elbow) and 50 percent evaluation (major elbow) when limited to 45 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5207 provides that limitation of extension warrants a 10 percent evaluation (both minor and major elbow) when limited to either 45 or 60 degrees, warrants a 20 percent evaluation (both minor and major elbow) when limited to 75 degrees, warrant a 20 percent evaluation (minor elbow) and 30 percent evaluation (major elbow) when limited to 90 degrees, warrant a 30 percent evaluation (minor elbow) and 40 percent evaluation (major elbow) when limited to 100 degrees, and warrant a 40 percent evaluation (minor elbow) and 50 percent evaluation (major elbow) when limited to 110 degrees. Id. Diagnostic Code 5213, provides a 10 percent rating for limitation of supination to 30 degrees or less; a 20 percent rating for limitation of pronation with motion lost beyond last quarter of arc, the hand does not approach full pronation or motion lost beyond middle of arc; and a 20 percent rating for the hand fixed near the middle of the arc or moderate pronation or the hand fixed in full pronation; and a 30 percent rating for the hand fixed in supination or hyperpronation. Id. 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 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). 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. 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. i. Right Elbow Limitation of Flexion As to an increased rating under Diagnostic Code 5206 (limitation of flexion), at the October 2013 VA examination the Veteran complained of right elbow pain and locking. On examination, the pain free flexion of the right elbow, after repetition, was to 130 degrees. Muscle strength was 4/5. However, there was no localized tenderness or pain on palpation, and the examiner opined that the Veteran did not have any functional loss and/or functional impairment of the elbow and forearm. Treatment records periodically document complaints, but nothing in these records show his range of motion to be worse than what was reported by the above VA examiner. Given the above range of motion findings, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca and Mitchell the Veteran's functional losses do not equate to the criteria required for a 20 percent rating for limitation of flexion under code 5206, because it does not show flexion limited to 100 degrees. Likewise, these range of motion findings do not support an evaluation under Diagnostic Code 5208, which in pertinent part require flexion limited to 100 degrees. As to an increased rating under 38 C.F.R. § 4.71a, Diagnostic Code 5205 (2015), the claims file does not contain a diagnosis of ankylosis of the right elbow. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).) In fact, the October 2013 VA examiner specifically opined that it was not ankylosed and this opinion is not contradicted by any other evidence of record. See Colvin, supra. In the absence of ankylosis, the Board may not rate his service-connected right elbow disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, a rating in excess of 10 percent is not warranted for the Veteran's service-connected right elbow disability under Diagnostic Code 5205. Similarly, because the record is negative for complaints, diagnoses, or treatment for a flail joint/joint fracture, nonunion of the radius and ulna, malunion or nonunion of the ulna, and/or malunion or nonunion of the radius, Diagnostic Codes 5209 5210, 5211, and 5212 are not applicable. ii. Right Elbow Limitation of Supination As to a higher evaluation under Diagnostic Code 5213 (limitation of supination), as noted above, the Veteran complained to the October 2013 VA examiner of right elbow pain and locking. The examiner measured supination to 5 degrees with evidence of pain at 0 degrees. However, right forearm pronation was to 90 degrees with no evidence of pain, muscle strength was 4/5, and there was no localized tenderness or pain on palpation. The examiner indicated the Veteran did not have any functional loss and/or functional impairment of the elbow and forearm beyond what was described. Furthermore, while treatment records periodically document his complaints and treatment for problems caused by the Veteran's right elbow disability, nothing in these records show his lost motion to be worse than what was reported by the above VA examiner. See Colvin, supra. Given the above range of motion study, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca and Mitchell the Veteran's functional losses do not equate to the criteria required for a 20 percent rating because it does not show pronation lost beyond last quarter of arc. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a. This is true at all times during the pendency of the appeal. iii. Right Elbow Limitation of Extension As to a compensable evaluation under Diagnostic Code 5207 (limitation of extension), at the October 2013 VA examination the Veteran had a 10 degree loss of extension. The Veteran complained of pain, locking and that the right are is smaller than the left. However, treatment records do not show any more adverse symptoms. As this loss of motion actually demonstrated, even taking into consideration the Veteran's complaints, does not approximate extension limited to 45 degrees, a basis for a compensable evaluation is not indicated. b. The Right Elbow Scar The November 2013 rating decision granted service connection for a right elbow post-operative scar and assigned a non compensable rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. Under applicable criteria, scars, other than the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent disability rating. Diagnostic Code 7802. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides that unstable or painful scars are rated as follows: 10 percent for one or two scars; 20 percent for three or four scars; and 30 percent for five or more scars. 38 C.F.R. § 4.118. Diagnostic Code 7805 directs that any other disabling effects of a scar not described in Code 7802 or 7804, are to be evaluated under an appropriate Diagnostic Code. Id. As to compensable evaluation for the scar under Diagnostic Code 7802, the Board notes that at neither the October 2013 VA examination or in any of the treatment records was the Veteran's scar shown to cover an area or areas of at least 144 square inches (929 square centimeters). The October 2013 VA examiner indicated the scar was 8 cm by 2 mm and did not even cover more than 39 square cm (6 square inches). This is not contradicted by any other medical evidence of record. Therefore, the Board finds that a compensable rating is not warranted for the Veteran's scar under Diagnostic Code 7802. See 38 C.F.R. § 4.118. As to compensable evaluation for the scar under Diagnostic Code 7804, the Board notes that at neither the October 2013 VA examination or in any of the treatment records found in the claims file has the Veteran's scar been characterized as unstable or painful. The Board also notes that the Veteran, in neither his writing to VA, in his statements to his VA and private healthcare providers, or at his personal hearing ever claimed that his scar was unstable or painful. Therefore, the Board finds that a compensable rating is not warranted for the Veteran's service-connected scar under Diagnostic Code 7804. See 38 C.F.R. § 4.118. And, as the scar is not shown to produce any other functional impairment, consideration under Diagnostic Code 7805 is not indicated. With respect to extra-schedular consideration, under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The evidence in this case does not show such exceptional disability picture that the available schedular evaluations for the right elbow disabilities are inadequate. Indeed, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The Board, therefore finds that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In reaching this conclusion, the Board has not overlooked the decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) in which it held that the plain language of 38 C.F.R. 3.321(b)(1) provides for referral for extraschedular consideration based on the collective impact of multiple service-connected disabilities. However, the Board finds no basis for finding that there is a "compounding" or collective impact of the Veteran's service connected disabilities because he is only service-connected for the above right elbow disabilities. As such, the Board finds that even taking into account Johnson this matter need not be remanded for referral to the Director, Compensation Service, for extraschedular consideration. The Board also has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU when the appellant claims she is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because, while the Veteran is not working, he has never claimed and the record does not show that he stopped working because of any of his service-connected right elbow disabilities. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for right elbow limitation of flexion is denied. A rating in excess of 10 percent for right elbow limitation of supination is denied. A compensable rating for right elbow limitation of extension, is denied. A compensable rating for a right elbow post-operative scar is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs