Citation Nr: 1752658	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  09-44 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for a right elbow strain. 

2.  Entitlement to a rating in excess of 10 percent for a left elbow strain. 

3.  Entitlement to a total rating for compensation purpose based upon individual unemployability (TDIU).


WITNESSES AT HEARING ON APPEAL

Appellant and her spouse.


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from November 1986 to March 2007.  This matter comes before the Board of Veterans' Appeals (Board) from the May and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  Jurisdiction over the claims file is currently held by the RO in Togus, Maine. 

This case was previously before the Board in November 2012, December 2013, and December 2014, when it was remanded for additional action.  The case has now returned to the Board for further appellate action.

When the case was previously before the Board, the issues on appeal included entitlement to service connection for a disability manifested by chest pain.  Service connection for costochondritis (claimed as chest pain) was awarded in an October 2016 rating decision effective October 14, 2008.  The grant of service connection constitutes a full award of the benefits sought on appeal and the claim for entitlement to service connection for a disability manifested by chest pain is no longer before the Board.  

The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) at the Roanoke RO in January 2012.  In a May 2017 letter, the Veteran was informed that the VLJ who conducted the January 2012 hearing is no longer available to participate in the adjudication of her claims.  The Veteran was also provided the opportunity to request a new hearing in accordance with 38 C.F.R. § 20.707 and 20.717 (2017).  The Veteran did not respond to the May 2017 letter and the Board therefore finds that she does not wish to appear at a second hearing.  The Board will therefore proceed with a decision in this case.

In an April 2017 rating decision, the RO denied entitlement to various benefits including service connection for a right toenail disability, an unspecified joint disability, and entitlement to special monthly compensation and automobile or other adaptive equipment.  A notice of disagreement (NOD) was filed in June 2017 initiating appeals in response to the denials of these four claims.  The Agency of Original Jurisdiction (AOJ) has acknowledged the Veteran's June 2017 NOD and is continuing to develop the claims.  The Board will therefore not address the claims that are the subject of the June 2017 NOD, other than to refer them to the AOJ for the appropriate action, to include the issuance of a statement of the case (SOC).  


FINDINGS OF FACT

1.  The Veteran's service-connected right elbow strain manifests painful noncompensable loss of motion without ankylosis, joint fracture, marked cubitus varus or cubitus valgus deformity, or a fracture head of radius.  

2.  The Veteran's service-connected left elbow strain manifests painful noncompensable loss of motion without ankylosis, joint fracture, marked cubitus varus or cubitus valgus deformity, or a fracture head of radius.  

3.  Prior to March 14, 2012, the Veteran's service-connected disabilities did not preclude her from securing or following substantially gainful employment consistent with her education and industrial background.  

4.  From March 14, 2012, the Veteran is in receipt of a combined total schedular rating for her service-connected disabilities. 


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for the service-connected right elbow strain are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5205-5213 (2017).

2.  The criteria for a rating in excess of 10 percent for the service-connected left elbow strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5205-5213.

3. The criteria for a TDIU prior to March 14, 2012 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.340, 4.2, 4.16.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, 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; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


Increased Rating Claims

Service connection for right and left elbow strains was awarded in a July 2007 rating decision.  Initial 10 percent evaluations were assigned for each elbow effective April 1, 2007.  In the May 2009 rating decision on appeal, the evaluations assigned each elbow were reduced to a noncompensable rating (0 percent) effective October 1, 2009.  The Veteran appealed the rating reduction, and 10 percent ratings were again assigned in an October 2011 rating decision.  Thus, the right and left elbow disabilities are in receipt of separate 10 percent evaluations throughout the entire claims period, notwithstanding the temporary reduction to a noncompensable rating in the May 2009 rating decision.  The Veteran contends that higher ratings are warranted as she experiences painful motion, swelling, locking, and increased aching in cold weather.  

The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  In the Rating Schedule, diagnostic codes are assigned to specific disabilities.  These diagnostic codes designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability.  38 C.F.R. §§ 3.321, 4.10.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  

The Veteran's right and left elbows are each assigned a 10 percent disability rating under diagnostic code (DC) 5209-5024.  Hyphenated DCs are used when a rating under one DC requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  When an unlisted disease or injury is encountered, it will be rated by analogy under a DC built up using the first two digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits.  Id.

The Board acknowledges that the RO erred to the extent it hyphenated DC 5209 and DC 5024 for two reasons.  First, DC 5209 does not require an additional diagnostic code.  Nor is 10 percent a possible rating under DC 5209.  Second, DC 5024 relates to tenosynovitis, and it requires assignment of a disability rating based on limitation of motion of the affected parts.  But, range of motion of the elbow is not a required consideration under DC 5209.  The Board will consider whether a higher rating is warranted for the service-connected elbow strains under all the applicable criteria and the Veteran is not prejudiced by the RO decision to hyphenate the two DCs.  As such, the Board will not disturb the RO's determination with respect to the applicable DCs.  

As noted above, DC 5024 requires assignment of disability rating based on limitation of motion of the affected parts.  The normal motion of an elbow is from 0 degrees extension to 145 degrees of flexion, 0 to 80 degrees of forearm pronation, and 0 to 85 degrees of forearm supination.  38 C.F.R. § 4.71, Plate I.  Limitation of motion of the elbow is contemplated by DCs 5206 to 5208 based on limitation of flexion and extension of the forearm.  Ankylosis of the elbow is rated according to DC 5205 based on the type of ankylosis and the angle at which is occurs.  38 C.F.R. § 4.71a, DCs 5205-5208.

In addition, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.  However, pain that does not result in additional functional loss does not warrant a higher rating.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).

Under Diagnostic Code 5209, elbow, other impairment of flail joint is rated 60 percent disabling for the major elbow and 50 percent disabling for the minor able. Joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius is rated as 20 percent disabling for either the major or minor elbow.  

In this case, the evidence in the record weighs against assigning a disability rating in excess of 10 percent for each elbow. 

The Veteran underwent VA examinations in April 2009, February 2013, April 2014, and May 2016.  All the VA examiners found a normal range of motion of both elbows.  The examiners did not find additional functional loss or range of motion after repetitive use testing.  However, another examination, from September 2011, found some limitation of range of motion. The Veteran also manifested some limitation of internal rotation and external rotation of the forearms during a May 2017 VA Medical Center (VAMC) physical therapy consultation.  These two evaluations represent the only instances during the period under consideration when abnormal range of motion of the elbows was identified.  But, the severity of the limitation in September 2011 and May 2017 was far less than what is contemplated for a compensable functional impairment under the rating criteria.  The Board further notes that elbow flexion was normal bilaterally at the May 2017 physical therapy evaluation.  Therefore, considering the totality of the evidence in the record, there is insufficient medical evidence to conclude that the Veteran has limitation in her range of motion that warrants a compensable rating for either elbow.  
The Veteran also reports constant pain in her elbows, as well as swelling, stiffness, and weakness.  See January 2012 Hearing Transcript at 18.  Her spouse testified that she complained about pain in her elbows, and that she is unable to do certain things like opening a jar or turning a door knob due to the pain or weakness of her elbows. Id at 27-28.  The May 2016 VA examiner noted tenderness or pain of the elbow upon palpation, but did not note pain during the range of motion test.  Further, during that examination, the Veteran reported functional loss or functional impairment to the extent that she is unable to lift heavy items. The examiner found that the Veteran's condition prevents her from repetitive heavy lifting.  In light of the Veteran's functional loss due to pain an assignment of a 10 percent disability rating is appropriate and contemplates the Veteran's lay complaints and all functional factors.  

A higher rating of 20 percent under DC 5209 is not warranted as the Veteran's right and left elbow strains are not manifested by joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture head of radius.  The May 2016, September 2011, and April 2009 examinations all found no evidence of a joint fracture, and the April 2014 VA examination found no deformity in each elbow.  There is also no evidence of ankylosis to warrant an increased rating under DC 5205, and the Veteran has clearly retained some useful motion of the elbows throughout the claims period.

Based on the above, a rating in excess of 10 percent for both right and left elbow strain is not warranted.   


TDIU Claim

The Veteran contends that she is unable to maintain fulltime employment due to impairment associated with her service-connected disabilities.  A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The Veteran first filed a VA form 21-9840, Veteran's Application for Increased Compensation Based on Unemployability, in April 2009.  She is service-connected for posttraumatic stress disorder (PTSD), a total hysterectomy, migraine headaches, right and left hip strain, tinnitus, hypothyroidism, right and left carpal tunnel syndrome, right and left knee arthritis, right and left elbow strain, right and left ankle sprain, allergic rhinitis, costochondritis, and right and left lower extremity scarring.   

Prior to March 14, 2012, while the Veteran's multiple service-connected disabilities combined were evaluated as 90 percent disabling, there was not a single disability that was rated as 40 percent disabling or more.  Thus, she did not meet the schedular criteria for an award of TDIU prior to March 14, 2012.  

Notwithstanding, when a Veteran does not meet the threshold minimum percentage standards set forth in 38 C.F.R. § 4.16 (a), she still may be entitled to a TDIU on an extraschedular basis, provided she is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); see also 38 C.F.R. § 3.321(b)(1).  Thus, the Board must assess whether there are circumstances in this Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability prior to March 14, 2012. Van Hoose v. Brown, 4 Vet. App. 361(1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993). 

In this case, the Veteran reported that she was working as a teacher's assistant at the time she filed VA form 21-8940 in April 2009.  Further, she indicated that she completed three years of college.  In June 2009, she reported that she was no longer employed because the swelling in her legs and headaches prevented her from maintaining a job.  The Veteran underwent examination in September 2011 for her knees, elbows, and ankles.  At that time, the examiner found that the Veteran's disabilities had a mild to moderate impact on her occupation.  Moreover, VA treatment records from April 2010 show that the Veteran reported working fulltime at the Newport News School System while also attending school fulltime.  In April 2012, during a VA Vocational Rehabilitation consultation, the Veteran reported having a Master's Degree, not having any physical limitations to work, and wanting to increase the number of hours she was working.  

The disability rating assigned to the Veteran's disability itself is recognition that her impairments make it difficult to obtain or keep employment, but the ultimate question is whether she is capable of performing the physical and mental acts required by employment, not whether she can find employment.  Considering the Veteran's high education level and consistent work experience, the evidence in the record indicates that she was capable of performing the mental and physical acts associated with working a sedentary job, such as being a teacher's assistant or substitute teacher.  Therefore, an extraschedular TDIU prior to March 14, 2012 is not appropriate. 

With respect to the time period after March 14, 2012, the first element of a TDIU is satisfied in light of the 50 percent and 70 percent ratings assigned to the Veteran's service-connected PTSD.  However, the evaluation of her combined disability rating for this period is a 100 percent.  

The United States Court of Appeals for Veterans Claims (CAVC) has recognized that a 100 percent disability rating under the Schedule for Rating Disabilities means that a veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).  The Veteran's award of a total schedular rating is assigned based on the combination of all her service-connected conditions and no single disability is rated as 100 percent disabling.  Therefore, her claim for entitlement for TDIU is moot as of March 14, 2012.  

ORDER

Entitlement to a rating in excess of 10 percent for a right elbow strain is denied. 

Entitlement to a rating in excess of 10 percent for a left elbow strain is denied. 

Entitlement to TDIU is denied.




____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs