Citation Nr: 1750156	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  13-00 298	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a compensable disability rating for residuals of left elbow injury (dominant extremity). 


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1988 to November 1988 and June 1995 to December 1997. 

This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 
 
Potential entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased rating requests.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In the instant case, however, the Veteran is in receipt of a TDIU from June 14, 2013, and there is no evidence that the Veteran's left elbow disability precluded him from obtaining and/or maintaining all forms of substantially gainful employment.  Therefore, no further discussion or analysis of the issue is necessary. 

In June 2017, the Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.  In the following month, the Veteran submitted additional evidence along with a waiver of initial RO consideration.

Below, the Board assigns a 10 percent rating for residuals of left elbow injury.  Because an updated VA examination is necessary to consider an even higher rating, the issue of entitlement to a rating higher than 10 percent for residuals of left elbow injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

From August 1, 2011, but not before, the Veteran's left elbow disability was manifested by chronic pain with x-ray evidence of mild osteoarthritis, without compensable limitation of motion.


CONCLUSION OF LAW

The criteria for a 10 percent disability rating for a left elbow disability have been met from August 1, 2011, but not sooner.  U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5206, 5207, 5208, 5209 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Increased Rating - Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating 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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

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 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any initial 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.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

As applicable here, where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr, 21 Vet. App. 303.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Under DC 5209, the only available rating is 20 percent disability rating that is warranted for joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius. 

Although the rating schedule does not provide a zero percent evaluation for DC 5209, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2017). 

Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a. 

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  Note (1) provides that the 20 percent and 10 percent ratings based on X- ray findings will not be combined with ratings based on limitation of motion.

 When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id.

In application of DC 5003, "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

With any form of arthritis, painful motion is an important factor of disability.  38 C.F.R. § 4.59 (2017).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis); but see Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (holding that section 4.59 does not provide an independent basis for a compensable rating; rather, there must be an applicable diagnostic code providing for a compensable rating for the joint involved).

Limitation of elbow motion is rated under Diagnostic Codes 5206, 5207, 5208, and 5213.  Under Diagnostic 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 Diagnostic Code 5207 (for limitation of extension), a 10 percent rating is warranted where extension of the major extremity 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 Diagnostic 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.
In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.

Analysis

The Veteran's service-connected left elbow disability has been rated as noncompensably disabling since December 25, 1997 under Diagnostic Code (DC) 5209 regarding impairment of the elbow.  See 38 C.F.R. §§ 4.27, 4.71a, DC 5209 (2017). He contends that a higher rating is warranted.  

Turning to the relevant evidence of record during the appeal period, the Veteran underwent a VA compensation examination in July 2009.  He corrected the record to reflect that he is indeed left-handed.  The Veteran reported continuous elbow pain, weakness, stiffness, and lack of endurance.  There was no deformity, instability, giving way, locking, effusion, or episodes of dislocation or subluxation.  The Veteran did not report any signs of inflammation such as swelling, heat, redness, tenderness or drainage.  Lastly, it was noted that the Veteran did not report any flare-ups, but indicated that the condition affected his occupation and activities of daily living. 

On physical examination, flexion of the left elbow was to 145 degrees and extension was 0 degrees.  Pronation and supination were normal.  There was no objective evidence of pain at rest or during active movement.  There was no objective evidence of edema, effusion, instability, tenderness, redness, heat, abnormal movement, guarding of movement, deformity, malalignment or drainage.  No ankylosis was noted.  No inflammatory arthritis was noted.  There was no loss of joint function with use on account of pain, weakness, fatigue, lack of endurance, or incoordination.  Range of motions of the right elbow was normal. 

The Veteran's private treatment notes dated March 2010 indicated that he had "status post left elbow injury" and additional treatment notes dated September 2010 note that he had persistent constant left elbow pain that was getting progressively worse.  

An additional diagnosis of left lateral epicondylitis was rendered in 2011.  

In August 2011, the Veteran had x-rays of his left elbow, which showed no acute fracture or dislocation and no elbow joint effusion.  There was an indication of early osteophyte associated with the medial ulna and a tiny enthesophyte involving the olecranon.  

The Veteran was afforded an additional VA examination in March 2014, at which time he reported taking Tramadol and Flexeril for pain.  Physical examination revealed flexion to 145 degrees or greater with no objective evidence of painful motion.  Extension was to zero degrees (normal).  The Veteran was able to perform repetitive-use testing, and it did not cause any additional limitation of motion.  There was no ankylosis of the left elbow.  There examiner noted that imaging studies did not show evidence of degenerative or traumatic arthritis. 

In June 2017, the Veteran's private physician provided a history of the Veteran's left elbow disability.  The physician noted that x-rays dated August 1, 2011, showed no fracture or dislocation, but did show early osteophyte formation consistent with early arthritis changes.  The physician indicated that upon examination, inspection and palpation of joints, bones, and muscles showed abnormal findings.  There was no outward deformity of the left elbow.  Tinal test was negative.  Left lateral epicondyle region was tender, with pain produced by left hand extension against resistance.  Range of motion was full.  The physician provided a diagnosis of post-traumatic osteoarthritis of the left elbow. 

Based on the range of motion findings noted above, the Veteran does not meet the criteria for a compensable rating under either Diagnostic Code 5206 or 5207.  In this regard, there is no evidence of left elbow flexion limited to 100 degrees, or left elbow extension limited to either 45 degrees or 60 degrees.  In fact, he has exhibited normal range of left elbow motion.

Moreover, a compensable rating under Diagnostic Code 5208 is not warranted as the Veteran's left forearm flexion is not limited to 100 degrees and left forearm extension is not limited to 45 degrees. 

The Veteran's current zero percent disability rating is assigned under DC 5209; however, a compensable rating is not warranted under such code.  As noted, the only available rating under such code is a 20 percent rating, which requires joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius; such has not been demonstrated. 

A compensable rating under Diagnostic Code 5213 is also not warranted, as there is no evidence of limitation of supination of the left elbow to 30 degrees or less.  38 C.F.R. § 4.71a.  Supination of the left elbow has been regarded as normal during the relevant VA examinations.

Nevertheless, as noted, painful motion of a joint due to arthritis equates to limited motion under DC 5003 and is entitled to at least a compensable rating.  See Lichtenfels, 1 Vet. App. at 488; see also 38 C.F.R. § 4.59.  Here, the Veteran has consistently reported pain in his left elbow and pain has been objectively observed during examination of the left elbow.  The Board finds the Veteran's statements in this regard credible as well.  Additionally, x-rays conducted in August 2011 show evidence of early arthritis in the left elbow.  Accordingly, the Board assigns a single 10 percent rating under DC 5003 for arthritis of the left elbow with painful motion as of August 1, 2011, when x-rays showed evidence of early arthritis.  See 38 C.F.R. § 4.45 (f); see also 38 C.F.R. § 4.71a, DC 5003 (providing, in relevant part, that a 10 percent rating is warranted for a major joint group affected by limitation of motion).  To that extent, the Veteran's claim is granted.  See 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49.  As discussed below, an updated examination will be afforded to the Veteran.


ORDER

A 10 percent disability rating for service connected left elbow disability is granted, subject to the laws and regulations governing monetary benefits.


REMAND

Although there was sufficient medical evidence to award a higher rating for the Veteran's left elbow disability as assigned herein, the Board finds that an updated examination is necessary to determine whether an even higher rating is warranted for the entire period on appeal.  The Veteran last underwent a VA examination for compensation purposes in March 2014.  Since then, the Veteran testified in June 2017 that his disability has worsened in severity.  Accordingly, the Veteran should be scheduled for a new examination.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).

In addition, during his June 2017 hearing testimony, the Veteran indicated that he receives Social Security Administration (SSA) disability benefits.  The record does not reflect an attempt by VA to secure copies of the SSA determination pertaining to the claimant or the medical records considered in conjunction with that determination.  The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits.  Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Ensure that any relevant outstanding VA medical evidence as well as any identified private evidence is obtained and associated with the claims file.

2.  Contact the Social Security Administration (SSA) and request copies of  SSA's determination on the Veteran's claim for SSA disability benefits, as well as copies of the complete medical records considered in that determination.  A copy of any response from SSA, including any records obtained and/or a negative reply, should be included in the claims file.  

3.  Then, provide the Veteran with an additional VA examination to determine the current extent and severity of his service-connected left elbow disability.  The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination.  All necessary tests should be conducted. 

Based on review of the record and examination of the Veteran, the examiner should respond to the following:

(a) Indicate all signs and symptoms associated with the service-connected left elbow disability.

(b) In particular, indicate whether neurologic impairment, aside from already service connected carpal tunnel syndrome, in the left upper extremity is present and associated with the service connected left elbow disorder.  Please address Dr. Warach's medical records received in July 2017

(c) Test and report the range of motion in active motion, passive motion, weight-bearing, and non weight-bearing for the joint in question AND any paired joint. 

(d) If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. 

(e) In reporting the range-of-motion findings, comment on the extent of any painful motion, at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups.

(f) Comment on any functional limitations caused by his service-connected left elbow disability. 

A complete rationale should be provided for any opinion expressed and conclusion reached.

 3.  When the development requested has been completed, and compliance with the requested action is ensured, readjudicate the claim of entitlement to a rating higher than 10 percent for left elbow disability.  If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs