Citation Nr: 1609484 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 09-50 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to increases in the ratings for a right elbow disability, currently assigned "staged" ratings of 0 percent prior to August 20, 2013, and 10 percent from that date. 2. Entitlement to increases in the ratings for a left elbow disability, currently assigned "staged" ratings of 0 percent prior to August 20, 2013, and 10 percent from that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1988 to February 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right and left elbow disabilities (enthesopathy), rated 0 percent, each, effective March 1, 2008. In July 2013 the case was remanded (by a Veterans Law Judge other than the undersigned) for additional development. An interim (September 2013) rating decision increased the rating for each elbow to 10 percent, effective August 20, 2013. The case is now assigned to the undersigned. FINDINGS OF FACT 1. Prior to August 20, 2013 the Veteran's service-connected right and left elbow disabilities were shown to be manifested by mild flare-ups occurring on a weekly basis and a nagging dull aching sensation, but not to limit motion or cause other functional impairment. 2. From August 20, 2013 the service-connected right and left elbow disabilities are shown to have been manifested by less than compensable limitations of flexion (due to pain), and by slightly weakened movement. CONCLUSIONS OF LAW 1. A compensable rating prior to August 20, 2013 and/or a rating in excess of 10 percent from that date are not warranted for the Veteran's right elbow disability. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5205-5213 (2015). 2. A compensable rating prior to August 20, 2013 and/or a rating in excess of 10 percent from that date are not warranted for the Veteran's left elbow disability. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5205-5213 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473(2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311(Fed. Cir. 2007). An October 2009 statement of the case (SOC) provided notice on the "downstream" issues of entitlement to increased initial ratings, and a September 2013 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542(2006). He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137(2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696(2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) have been secured. The RO arranged for VA examinations in June 2008 and (pursuant to the Bboard's remand) in August 2013. The reports of the VA examinations contain sufficient information to constitute probative evidence adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303(2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis 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. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Where the appeal arises from the original assignment of a disability rating following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time and "staged" ratings may be assigned for distinct periods of time where the severity of the disability varied, based on facts found. See Fenderson v. West, 12 Vet. App. 119(1999). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53(1990). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A 0 percent rating is assigned when the requirements for a compensable evaluation are not met and the schedule does not provide a 0 percent evaluation. 38 C.F.R. § 4.31. Limitation of elbow motion is rated under Codes 5206, 5207, 5208, and 5213. Under Code 5206 (for limitation of flexion), a 0 percent rating is warranted where flexion of the major extremity is limited to 110 degrees; a 10 percent rating is warranted where the flexion is limited to 100 degrees; and a 20 percent rating is warranted where flexion is limited to 90 degrees. (Higher ratings are available for greater limitation of motion.) Under Code 5207 (for limitation of extension), a 10 percent rating is warranted where extension is limited to either 45 degrees or 60 degrees; and a 20 percent rating is warranted where extension is limited to 75 degrees. (Higher ratings are available for greater limitations of motion.) Under Code 5208, a 20 percent rating is warranted when forearm flexion is limited to 100 degrees and extension is limited to 45 degrees. This is the only rating available under this code. Under Code 5213, a 10 percent rating is warranted for limitation of supination to 30 degrees or less. A 20 percent rating is warranted for limitation of pronation with motion lost beyond the last quarter of the arc and the hand not approaching full pronation. 38 C.F.R. § 4.71a. For VA compensation purposes, normal flexion and extension of the elbow is from 0 degrees of extension to 145 degrees of flexion, pronation is from 0 to 80 degrees, and normal supination is from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I. The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. September 1987 through November 2007 STRs show a diagnosis of bilateral elbow bone spurs. On October 2007 (pre-discharge) VA general medical examination the Veteran's musculoskeletal system was noted to be within normal limits. There was no history of complaints or diagnosis pertaining to the elbows. On June 2008 VA joints examination, it was noted that the Veteran is right handed. He denied history of hospitalization, surgery, joint trauma, or neoplasm associated with the elbows. There were no constitutional symptoms or incapacitating episodes of arthritis. He reported symptoms of joint pain and stiffness. There were no episodes of dislocation or subluxation, or locking. There was no effusion. Motion was unaffected. The Veteran reported mild flare-ups occurring weekly and lasting hours. He described the flare-ups as nagging, dull, aching sensation that did not prevent or limit motion or cause other functional impairment. X-rays of the elbows (during military service) show no acute fracture or effusion. The joint spaces were preserved; however, there was a tiny spur at the coronoid process and bilateral olecranon enthesophytes. The impression was bilateral enthesopathy. Range of motion testing revealed bilateral elbow flexion from 0 to 145 degrees with no pain on motion and no additional limitation of motion on repetitive use. Bilateral elbow extension was from 90 to 0 degrees with no pain on motion and no additional limitation of motion on repetitive use. Bilateral elbow pronation was from 0 to 80 degrees with no additional limitation of motion on repetitive use. Bilateral elbow supination was from 0 to 85 degrees with no additional limitation of motion on repetitive use. The impressions were tenderness of the right elbow and tendonitis of the left elbow. X-rays of the elbows showed bilateral olecranon spurs. The examiner noted the Veteran did not have limitations of range of motion, but reported having persistent daily achy tenderness, relieved by range of motion exercises and icing. He opined that it was as likely as not, that the Veteran's elbow tenderness was caused by the bilateral elbow spurs. The diagnosis was bilateral elbow pain. In his January 2009 notice of disagreement, the Veteran stated that he was experiencing serious pain occasionally in both elbows. In his December 2009 Substantive Appeal, he stated that he still experiences elbow pain; he stated that he wakes up in the morning with pain in his elbows and whenever he moves his arms in a certain way the pain is tremendous. He took Motrin, but when it wore off, the pain would return. On August 2013 VA examination (pursuant to the Board's remand), the Veteran reported elbow pain with flexion and with full extension. He felt the pain referred to his wrists but he indicated that there is nothing wrong with the wrists; the pain (mainly in the left elbow) was exacerbated when he moved or stretched the wrists. He related that both elbows felt stiff and tender (the left more so). The pain worsened with flexion/extension and pushing and pulling movements. He was not taking medication or receiving physical therapy for the elbow disabilities. He reported that flare-ups impact the function of his elbows. On range of motion testing, right elbow flexion was to 135 degrees, at which point painful motion began. Left elbow flexion was to 100 degrees, at which point painful motion began. Hyperextension was to 0 degrees bilaterally; i.e., there was no limitation of extension of either elbow. Ranges of motion did not change with repetitive-use testing. Functional loss bilaterally consisted of less movement than normal, weakened movement and pain on movement. There was localized tenderness or pain on palpation of both elbow joints. Muscle strength testing of the elbows revealed (4/5) active movement against some resistance. The diagnoses were bilateral elbow enthesopathy and bilateral lateral epicondylitis. The examiner noted that the Veteran's bilateral elbow disability does not impact on his ability to work. The examiner noted that the Veteran alleged pain (at a level of more than 7/10) elicited by flexing his elbows (right to 135 degrees and left to 100 degrees) and with full extension of both elbows (at a level of 6-7/10). He also complained that left wrist extension exacerbated left elbow pain. The examiner noted that pain certainly could be a limitation with respect to some daily living activities and/or chores. As stated above, a September 2013 rating decision increased the rating for each elbow disability to 10 percent, effective August 20, 2013 (the date of the VA examination), essentially based on the finding of functional limitations due to pain. Prior to the August 20, 2013 date of the VA examination there was no evidence that the Veteran's elbow disabilities were manifested by functional (motion) limitations that either met or approximated the criteria for the minimal (10 percent) schedular compensable rating for elbow disability. Indeed the initial VA examination in June 2008 found no limitations in range of motion. The Veteran reported achy tenderness, but indicated that it did not affect function. Significantly, even when he disagreed with the initial rating, the Veteran reported only occasional serious elbow pain; he did not quantify; and in his substantive appeal later that year, while he reported daily morning pain, he did not describe functional limitations that would support a compensable rating. See 38 C.F.R. § 4.40. Notably, when he was next examined for the elbows by VA in August 2013, he denied being in treatment for the elbows such as with medication of physical therapy; there is no objective evidence of functional limitations due to elbow disability prior to August 20, 2013, and none have specifically been alleged. Accordingly a compensable rating is not warranted for either elbow disability prior to August 20, 2013. The August 20, 2013 VA examination revealed functional limitations due to elbow disability consisting of motion limitation (albeit to a lesser degree than in the schedular criteria for the minimum compensable (10%) rating. Limitations of elbow flexion to 90 degrees, extension to 75 degrees, were not shown, even with the factor of pain considered (there was no additional limitation with use). The 10 percent rating assigned by the RO for each elbow disability based on the limitation due to pain fully encompasses the functional limitations shown at any time under consideration. Accordingly, a rating in excess of 10 percent is not warranted for any period of time under consideration. The Board notes the specific argument by the Veteran's representative (in written argument) that examination has revealed painful motion throughout the range of motion. The Board observes that the August 2013 VA examination specifically found that painful motion began at 135 degrees flexion on the right and began at 100 degrees on the left, levels fully encompassed by the schedular criteria assigned for the 10 percent ratings assigned. The Board has considered whether these matters warrant referral to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), when considering whether referral for extraschedular consideration is warranted it must first be determined whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If so, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Here, the symptoms and impairment resulting from the Veteran's bilateral elbow enthesopathy and bilateral lateral epicondylitis of itself painful (but not limiting to a degree compensable above 10 percent) motion and mild weakness shown fall squarely within the criteria for (0 percent prior to August 20, 2013 and 10 percent from August 20, 2013) schedular ratings assigned. The record does not reflect (or suggest) any symptoms or impairment of the disability not encompassed by the schedular criteria. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. The matter of entitlement to a TDIU rating is not raised by the record in the context of these claims for increase. On August 2013 VA examination the examiner specifically noted that the Veteran's bilateral elbow disability does not impact on his ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Increases in the (0 percent prior to August 20, 2013 and 10 percent from that date) ratings for the Veteran's right elbow disability are denied. Increases in the (0 percent prior to August 20, 2013 and 10 percent from that date) ratings for the Veteran's left elbow disability are denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs