Citation Nr: 1552576 Decision Date: 12/16/15 Archive Date: 12/23/15 DOCKET NO. 12-13 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement for a rating in excess of 20 percent for status post surgical excision of the radial head, right elbow. ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran's records are now encompassed completely in Virtual VA and Veterans Benefits Management System (VBMS) electronic files. FINDING OF FACT The Veteran has no anklylosis of the right (major) elbow; his right forearm flexion is not limited to 70 degrees or less and his right forearm extension not limited to 90 degrees. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for service-connected right elbow disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5206, 5207 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans' Claims Assistance Act (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). A claimant seeking an increased rating must be informed of the need to submit evidence showing an increase or worsening of his or her service-connected disability. The claimant should be notified that, if an increase in disability is found, a disability rating will be determined by applying relevant regulations and that an effective date will be assigned. See Vazquez-Flores v. Peake, 22 Vet. App. 37, 43-44 (2008), vacated on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270. The RO sent the Veteran a letter providing the required notice in December 2010. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The duty to assist requires VA to help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and post-service VA treatment records. He did not identify any records of medical treatment of the elbow by private health care providers during the appeal period. The RO also arranged two VA examinations, which took place in January 2011 and June 2013. Because the June 2013 report suggested that the Veteran may have had elbow replacement surgery, the RO requested an addendum opinion from the June 2013 examiner, which was received in July 2014. A copy of the addendum opinion is in the Veteran's Virtual VA electronic claims file. For these reasons, the Board finds that VA complied with its duties to notify and to assist under the VCAA. Thus, the Veteran's appeal can be considered on its merits. Analysis Disability evaluations are determined by evaluating the extent to which the claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (flare-ups) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, a rating higher than the currently assigned 20 percent is not warranted at any time during the appeal period. Diagnostic Code 5205 rates the disability based on the presence of ankylosis, or immobility of the joint. Because the Veteran has movement in his right elbow joint, this code is inapplicable. Normal ranges of motion of the elbow and forearm are 0 degrees in extension to 145 degrees in flexion. Normal ranges of motion of the forearm are 0 to 80 degrees in pronation and 0 to 85 degrees in supination. 38 C.F.R. § 4.71, Plate I. As the Veteran is right handed, the disability ratings for the major extremity will be used. 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5206, when flexion of the forearm of the major upper extremity is limited to 110 degrees, a noncompensable rating is warranted. When flexion is limited to 100 degrees, a 10 percent rating is warranted. Flexion limited to 90 degrees warrants a 20 percent rating. Flexion limited to 70 degrees warrants a 30 percent rating. Diagnostic Code 5207 rates the disability based on limitation of extension. The code provides that when extension of the forearm of the major upper extremity is limited to 45 degrees, a 10 percent rating is assigned. Extension limited to 75 degrees warrants a 20 percent rating. When limitation of extension is at 90 degrees, a 30 percent rating is warranted. VA General Counsel has held that separate evaluations for limitation of flexion and for limitation of extension may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). See, e.g., Liello v. Shinseki, No. 11-3789, 2013 WL 3461929, *2-3 (Vet. App. July 10, 2013) (nonprecedential decision) (explaining that the logic set forth in VAOPGCPREC 9-2004 is not limited to the knee but extends to the other joints as well). Any such separate rating must be based on additional disabling symptomatology. Alternatively, pursuant to Diagnostic Code 5208, a maximum 20 percent evaluation is warranted when forearm flexion is limited to 100 degrees and forearm extension is limited to 45 degrees. The diagnostic criteria applicable to impairment of supination and pronation are found at 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2015). Under that code, a 10 percent evaluation is warranted when forearm supination of the major upper extremity is limited to 30 degrees or less. Limitation of pronation of the forearm of the major upper extremity warrants a 20 percent evaluation if motion is lost beyond the last quarter of the arc (i.e., cannot go beyond 60 degrees of the total 80 degrees) and the hand does not approach full pronation. A 30 percent evaluation requires that motion be lost beyond the middle of the arc. 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2015). According to a June 2013 VA examination report, the Veteran's right elbow flexion was 140 degrees with no objective evidence of painful motion. Right elbow extension reached zero degrees, also without objective evidence of painful motion. According to the examiner, the Veteran had no impairment of supination or pronation. The June 2013 examiner also recorded range of motion measurements after repetitive use, and found there was no additional limitation in right elbow flexion or extension. The Veteran had no ankylosis of the elbow and muscle strength testing was normal during right elbow flexion and extension. The examiner noted that the Veteran did not report flare-ups impacting the function of his elbow or forearm. The diagnostic criteria applicable to elbow replacement (prosthesis) are found at 38 C.F.R. § 4.71a, Diagnostic Code 5052 (2014). The June 2013 examination report indicated that the Veteran's January 1991 in-service elbow surgery included an elbow replacement. In response to requests for clarification, the examiner provided an addendum opinion in July 2014, explaining that the Veteran had not had elbow joint replacement surgery. Because the Veteran has not had an elbow replacement, Diagnostic Code 5052 does not apply. According to the January 2011 VA examination report, right forearm flexion was 131 degrees, i.e., slightly more limited than the June 2013 report, but still insufficient to qualify for a 30 percent rating under Diagnostic Code 5206. Right forearm extension was limited to 2 degrees, which similarly fails to qualify for a 30 percent rating under Diagnostic Code 5207. According to the January 2011 examiner, right pronation and supination were normal. Like the June 2013 examiner, the January 2011 examiner conducted repetitive motion tests and found no additional limitation of range of motion after three repetitions. The January 2011 VA examiner reported that the Veteran experienced pain during flare-ups. The examiner described elbow flare-ups of moderate severity, occurring weekly and lasting for hours. Precipitating factors were changes in the weather and hitting the disabled elbow against objects. In several written statements, the Veteran has argued that he should receive a higher 40 percent rating due to pain in his elbow. For any disorder, such as this one, which is rated, at least partly, based on limitation of motion, VA must consider the extent to which the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as functional impairment due to pain, weakness, premature or excess fatigability and incoordination. See DeLuca v, 8 Vet. App. at 204-04 (1995). Applying DeLuca generally involves describing these additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The medical evidence indicates that the Veteran's additional functional limitations from pain during flare-ups do not approximate the criteria for a rating higher than 20 percent. On this point, the Board finds most persuasive the evidence of the June 2013 and January 2011 VA examiners. Neither examiner detected objective evidence of pain upon repetitive motion. According to the June 2013 report, the Veteran reported no flare-ups. At the time of the January 2011 report, the Veteran apparently did experience flare-ups, but these took place only about once per week and did not interfere substantially with range of motion. In his substantive appeal (VA Form 9), the Veteran has argued that he should receive a higher rating because his elbow was injured in a combat zone. This question was already decided in his favor when VA first awarded him service-connected disability compensation for his right elbow injury in February 2002. The separate issue of the appropriate disability rating for current residuals of the Veteran's service-connected elbow injury depends on the current severity of that disability. See Francisco, 7 Vet. App. at 58. For these reasons, the Veteran is not entitled to a disability rating higher than the currently assigned 20 percent. Finally, the Board will consider referral for an extraschedular rating. Such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. See Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those described by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The schedular rating adequately contemplates the Veteran's disability picture. The June 2013 examination report indicated normal extension and almost normal flexion with no objective evidence of pain on motion. The January 2011 examination report described only slightly more serious impairments. The Veteran remained capable of repetitive use, has normal muscle strength, and the evidence does not reflect that the Veteran's right elbow disability has caused marked interference with employment, frequent hospitalization, or that the symptoms in his right elbow have otherwise rendered impractical the application of the regular schedular standards. For these reasons, the Board finds that referral for an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement for a rating in excess of 20 percent for status post surgical excision of the radial head, right elbow, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs