Citation Nr: 1753916 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-00 034A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability evaluation in excess of 50 percent for the service-connected adhesions of the peritoneum residual to the in-service hepatorrhaphy. 2. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected surgical scar of the abdomen associated with the in-service hepatorrhaphy. 3. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected painful abdominal scars. 4. Entitlement to a disability evaluation in excess of 30 percent for the service-connected headaches. 5. Entitlement to a disability evaluation in excess of 10 percent for the service-connected right elbow disability. 6. Entitlement to a disability evaluation in excess of 10 percent for the service-connected left elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant served on active duty in the United States Marine Corps from May 1990 to May 1994, to include service in Southwest Asia. His decorations include the Combat Action Ribbon. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that addressed the appellant's increased rating claims. In the September 2009 rating decision, the RO granted service connection for a tender and painful abdominal scar; an initial 10 percent disability evaluation was assigned for the scar, effective from May 29, 2009. A subsequent rating decision, issued in June 2015, granted service connection for an abdominal surgery scar; an initial 10 percent disability evaluation was assigned for that scar, also effective from May 29, 2009. The RO, in the June 2015 rating decision, assigned a separate 10 percent evaluation for the left elbow disability, effective from June 24, 2009; the previous evaluation had been 10 percent for both elbows. Therefore, the issues on appeal are as listed on the title page. The Board remanded the case for additional development in June 2016. The case has now been returned to the Board for appellate review. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case must take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The appellant has not exhibited any signs or symptoms that are attributable to any chronic liver disease or to any infectious liver disease at any time during the appeal period. 2. The in-service hepatorrhaphy caused the appellant to have adhesions of the peritoneum and the appellant has been assigned the maximum schedular rating for adhesions of the peritoneum throughout the appeal period. 3. The service-connected surgical scar of the abdomen associated with the in-service hepatorrhaphy is deep and nonlinear and measures 32 or 33 centimeters by 2 or 3 centimeters. 4. The appellant has two service-connected abdominal scars: the screwdriver stab wound scar of the abdomen and the abdominal surgery scar; each scar is painful but neither scar is unstable. 5. Throughout the appeal period, there is no objective evidence that the service-connected headaches involved very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability. 6. The appellant is right-handed. 7. Throughout the appeal period, the right elbow disability has not been manifested by ankylosis, flexion limited to 100 degrees or less or extension limited to 75 degrees or less. 8. Throughout the appeal period, the left elbow disability has not been manifested by ankylosis, flexion limited to 100 degrees or less or extension limited to 75 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 50 percent for the service-connected adhesions of the peritoneum associated with the in-service hepatorrhaphy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7301 (2017). 2. The criteria for an initial 20 percent disability rating, and no higher, for the abdominal surgery scar associated with the in-service hepatorrhaphy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). 3. The criteria for an initial disability rating in excess of 10 percent have not been met for the two painful abdominal scars. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). 4. The criteria for assignment of a disability evaluation in excess of 30 percent for the service-connected headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124(a), Diagnostic Code 8100 (2017). 5. The criteria for assignment of a disability evaluation in excess of 10 percent for the service-connected right elbow disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5003, 5010, 8850-5206 (2017). 6. The criteria for assignment of a disability evaluation in excess of 10 percent for the service-connected left elbow disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5003, 5010, 8850-5206 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The Veteran prevails in either event. However, if the weight of the evidence is against the Veteran's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the appellant nor his representative has referred to any deficiencies in either the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, United States Supreme Court, Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [Veteran] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a Veteran's failure to raise a duty to assist argument before the Board). A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the Board remand issued in June 2016, private treatment records were obtained and added to the evidence of record. In addition, the appellant was afforded VA examinations in September 2016 that addressed the various disabilities on appeal. Therefore, substantial compliance has been achieved. The appellant was provided with notice as to the medical evidence needed for increased ratings for his claimed disabilities, as well as the assistance VA would provide. Neither the appellant nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). II. The Merits of the Claims Disability ratings are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. Where there is a question as to which of two disability 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. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Evidence of the present levels of disability is found in the reports of private outpatient treatment dated between 2010 and 2016; in the reports of the VA examinations conducted in July 2009, August 2009, July 2012, and September 2016; and in various written statements submitted by the Veteran, his spouse and his representative. While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A decision of the Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The appellant contends that he is entitled to an increased disability evaluation for each of the six separate disabilities on appeal. He argues that he has not been awarded the proper disability ratings and that the severity of each disability has not been adequately considered by VA. A. Adhesions of the Peritoneum Service connection was initially granted for the residuals of an in-service hepatorrhaphy in a June 1995 rating decision. During military service, the appellant had been stabbed with a screwdriver in the abdomen with a resultant laceration of the liver. The initial rating was assigned pursuant to Diagnostic Code 7301, adhesions of the peritoneum, based on his complaints of pain after prolonged sitting, abdominal pain and episodes of diarrhea. See 38 C.F.R. § 4.114, Diagnostic Code 7301. The appellant submitted his current claim for an increased rating in May 2009. In June 2009, he and his spouse reported that he had been experiencing pain and discomfort that had been getting worse. The rating was increased to 50 percent, effective May 29, 2009 (the date of the claim for increase). The increase was based on the appellant's reports of chronic disturbances of bowel movements, gas pain and discomfort, diffuse abdominal pain with activities and movements, a pulling sensation, itching, recurrent episodes of nausea and episodes of severe abdominal pain/incapacitating episodes four or more times per year. See June 2015 rating decision and reports of the VA medical examinations conducted in July 2009, July 2012 and September 2016. The rating schedule provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. See 38 C.F.R. § 4.113. Ratings under Diagnostic Codes 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. The appellant's disability has consistently been evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7301. Under that Diagnostic Code, 50 percent is the maximum schedular rating and is assigned for severe adhesions, with definite partial obstruction, shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note associated with Diagnostic Code 7301 provides that ratings for adhesions will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, and presence of pain. 38 C.F.R. § 4.114, Diagnostic Code 7301. Diagnostic Code 7301 is the appropriate code for the appellant's peritoneal adhesions since he has a history of operative intraabdominal process, has been diagnosed with adhesions, and his symptoms of pain and gastrointestinal dysfunction are contemplated by Diagnostic Code. In addition, the VA physician who examined the appellant in September 2016 stated that there was no evidence of hepatic residuals or sequelae from the 1992 stabbing and that the appellant's gastroesophageal reflux disease (GERD) and his hyperlipidemia were not related to liver conditions. The VA examiner further stated that the appellant did not exhibit any signs or symptoms that were attributable to any chronic liver disease or to any infectious liver disease. As the appellant is receiving the maximum schedular rating under this Diagnostic Code for adhesions, a higher rating under that code is not possible and further discussion in this regard is not necessary. Finally, in a written statement received in April 2017, the appellant reports worry over unknown future problems the adhesions may cause. While the Board sympathizes with the appellant's concerns, disability ratings must be assigned on currently demonstrated manifestations. If additional problems arise in the future, the appellant is free to submit a claim for those additional manifestations. B. Abdominal Scars The Board notes that, as of October 23, 2008, revised provisions for evaluating skin disabilities (scars) were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008. Since the appellant's claim for an increased evaluation was received in May 2009, the revised provisions are applicable throughout the appeal period. As previously noted, the RO granted service connection for a tender and painful abdominal scar in the September 2009 rating decision; an initial 10 percent disability evaluation was assigned for the scar, effective from May 29, 2009. A subsequent rating decision, issued in June 2015, granted service connection for an abdominal surgery scar; an initial 10 percent disability evaluation was assigned for that scar, also effective from May 29, 2009. The Court held, in Fenderson v. West, 12 Vet. App. 119 (1999), that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. The issues before the Board are consequently taken to include whether there is any basis for higher ratings at any time since the effective date of service connection to account of variations in the disability. 1. Surgical scar The evidence of record reflects that the appellant underwent abdominal surgery in service which resulted in a deep nonlinear scar. The report of the VA examination conducted in August 2009 indicates that the surgical incision was 32 centimeters (cm) in length. The examiner did not report the width of the scar. There was obvious fixation of the scar to underlying tissues. The appellant was afforded another VA scar examination in July 2012. The examiner indicated that the abdominal surgical scar was 22 cm by 2 cm in size with an approximate total area of 44 square cm. The Board notes that the cited length appears to be a typographical error and that the length should be 32 or 33 cm as reflected in the other examinations of record. The appellant most recently underwent a VA medical examination in September 2016. The examiner stated that the incisional scar was deep, nonlinear and measured 33 cm by 3 cm. However, the examiner also stated that the scar was 33 cm by 2 cm. The scar was described as adherent to deep tissues, painful and productive of a constant sensation of tightness in the area. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. Where there is evidence of such a scar area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), a 10 percent evaluation will be assigned. A 20 percent evaluation is warranted where there is evidence of a scar area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. Note (1) to Diagnostic Code 7801 defines a deep scar as one associated with underlying soft tissue damage. Id. There have been different measurements of record of the surgical scar, with the scar being described as 32 and 33 cm in length and 2 and 3 cm in width. The lower figures for length and width produce an area of 64 square cm, while the two larger numbers produce an area of 99 square cm. Using 32.5 cm and 2.5 cm yields an area of 81 square cm. Affording the appellant the benefit of the doubt, the Board finds that the appellant's scar approximates the findings required for a 20 percent evaluation. However, the evidence does not show that the area of the surgical scar approximates 465 square cm and therefore a 30 percent evaluation is not warranted for the surgical scar of the abdomen associated with the in-service hepatorrhaphy. The Board notes that Diagnostic Code 7805, for scars that cause other effects, is not for application. This is so because the 10 percent rating assigned under Diagnostic Code 7804 compensates the appellant for the pain and tenderness associated with the scar while the 50 percent rating under Diagnostic Code compensates the appellant for all the other symptoms he experiences from the adhesions associated with the surgical scar, including a tightness restricting movement, pain on motion and itching. See 38 C.F.R. § 4.14 (The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.) 2. Painful scars As reflected in the reports of the VA scar examinations conducted in August 2009, July 2012, and September 2016, the appellant has a scar that is residual to his stabbing with a screwdriver. As noted above, he also has a related surgical scar. The appellant has been assigned an initial evaluation of 10 percent under Diagnostic Code 7804 based on the pain associated with the abdominal scarring. Under Diagnostic Code 7804, for unstable or painful scars, a 10 percent rating is warranted for one or two such scars. A 20 percent rating is warranted for three or four such scars. The maximum 30 percent rating is warranted for five or more such scars. Note 1 to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scars. Note 2 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. In this case, the appellant has two painful scars: the screwdriver stab wound scar and the abdominal surgery scar. Both scars are tender and painful to palpation and the surgical scar causes pain from clothing touching the scar. The findings recorded in the reports of VA examinations reveal that neither scar is unstable. Based on these clinical findings, the initially assigned evaluation of 10 percent is warranted. However, a 20 percent evaluation is not warranted because the appellant does not have more than two painful scars and because neither scar is unstable. C. Headaches The appellant's service-connected headaches have been assigned a disability rating of 30 percent. They have been rated as migraines, which are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this Diagnostic Code, a 30 percent disability rating is assigned characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; this is the highest rating available under that Diagnostic Code. The use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In addition, the term "productive of severe economic inadaptability" is not defined by VA regulations. However, the Court has stated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The appellant was afforded a VA medical examination in August 2009. The appellant reported that he had headaches that occurred once or twice a week. He said most of the headaches were mild but once or twice a month, a headache was severe with nausea and he would need to lie down. The appellant underwent another VA medical examination in July 2012. The appellant reported that his headaches had remained unchanged since the 2009 examination. The appellant reported having headaches two to three times per week and a major headache approximately twice a month. The appellant described his headaches as lasting for one hour and said if one occurred at work he would just work through it. The examiner stated that the appellant did not experience very frequent prostrating and prolonged attacks of headache pain and that the headaches did not affect the appellant's ability to work. During a VA psychiatric examination conducted in May 2013, the appellant reported that he was working in law enforcement and had had the same job for ten years. He stated that he had no work or performance issues. The appellant was afforded another VA medical examination in September 2016. The appellant reported that his headaches occurred frequently throughout the week and lasted a couple of hours. He reported a headache with nausea and photophobia once a week and said that he would have to turn off his office lights and close his door for an hour or so. The examiner indicated that the appellant's work was affected by diminished concentration and productivity and more absences. Private treatment records dated between March 2010 and June 2016 include several notations to the effect that the appellant denied experiencing new/worsening headaches. These notes are dated in November 2011; January 2012; September 2012; January 2014; August 2014; May 2015; and October 2015. After having carefully reviewed the evidence of record, the Board finds that a disability rating in excess of 30 percent is not warranted for the appellant's service-connected headaches. In this respect, the competent medical evidence does not reflect that the appellant's headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. After careful review of the aforementioned treatment records, as well as the VA medical examinations, the Board concludes that the service-connected disability is adequately reflected by the current 30 percent rating, and the headaches are not of such severity and/or frequency as to warrant the next higher rating of 50 percent under Diagnostic Code 8100. The appellant has not alleged that he has such severe attacks and objective findings have not shown very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The appellant himself has described most of his headaches as mild in nature and he has stated that the duration of the headaches is two hours or less. In addition, the appellant was working in law enforcement throughout the appeal period and has stated that he would continue to work if a headache occurred while he was at work. As such, the evidence of record more nearly approximates the criteria for a 30 percent rating, and no higher. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. The Board has considered the appellant's statements regarding the frequency and severity of his headaches. While the appellant has reported experiencing frequent headaches, the headaches have been mostly mild in severity and severe headaches have occurred less frequently. Furthermore, the objective evidence of record, to include the appellant's own statements, fails to show that the headaches are completely prostrating or prolonged. Rather, the appellant has consistently reported that his headaches subside relatively quickly and that he was able to function, to include working, while experiencing headache pain. In addition to the foregoing, the September 2016 VA examiner noted that the appellant's headaches were prostrating for only an hour or so. A rating in excess of 30 percent is not warranted because the evidence does not reflect that the appellant's headaches have been very frequently completely prostrating at any time during the appeal period. This determination is based largely on the appellant's reports of his symptoms. As shown above, the criteria for a 50 percent rating requires that all elements be met - frequency and completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, even after resolving all reasonable doubt in the Veteran's favor, a higher rating is not assignable for his service-connected headaches. D. Elbows The appellant's right and left elbow disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 8850-5206. Diagnostic Code 8850 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the musculoskeletal diseases found in VA's Rating Schedule and Diagnostic Code 5206 is the rating code for limitation of flexion of the forearm. Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major and a person is presumed to be right-handed unless there is evidence of left-handedness. 38 C.F.R. § 4.69. Review of the evidence reveals that the appellant was noted to be right-handed during his August 1994 VA medical examination. Thus, the ratings for the elbows are to be made on the basis of the right upper extremity being the major extremity. Pursuant to regulatory provisions, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Diagnostic Code, a 10 percent rating is for assignment for a major joint. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. The elbow is considered a major joint. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). 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. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). However, the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The appellant has been granted service connection for bilateral chronic medial epicondylitis. He has been assigned a 10 percent evaluation for each elbow under Diagnostic Code 5206, limitation of flexion of the forearm. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is warranted when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is warranted when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Private treatment records dated between March 2010 and June 2016 do not contain any notations relating to treatment for any elbow complaints. The appellant underwent a VA medical examination in July 2009. He reported experiencing intermittent discomfort in his elbows with vigorous physical activity. He reported tenderness but no weakness, giving way, locking, problems with motion or weakened grasping. The appellant said he had not received treatment for his elbows. On physical examination, the appellant demonstrated a complete range of motion from flexion to extension in each elbow, with active flexion to 160 degrees. There was no weakness of grasp or diminished sensation. There was tenderness to pressure applied to the medial epicondyle on each elbow. The appellant underwent another VA medical examination in July 2012. He said that the elbow condition had gotten progressively worse and that he experienced pain with activities involving the arms. He reported that he did not have any flare-ups associated with his elbows. On physical examination, the appellant demonstrated a range of motion in each of zero to 145 degrees. Pain was noted at 90 degrees in the right elbow and at 110 degrees in the left elbow. No change in range of motion of either elbow was shown after three repetitions of testing. Muscle strength was 5/5 in the upper extremities. No arthritis was revealed on radiographic examination. The appellant was afforded another VA medical examination in September 2016; he reported that he continued to have elbow pain that was proportional to use. He said that he did not have any flare-ups associated with his elbows and that he was not letting the elbow pain interfere with the performance of his duties at work. On physical examination, muscle strength was 5/5 bilaterally in the elbows and no muscle atrophy was present. The appellant demonstrated a range of motion of each elbow of five to 145 degrees; no change was noted after three repetitions of testing. No pain was noted and there was no objective evidence of localized pain in palpation. The examiner stated that the appellant did not have a flail joint. Radiographic examination did not reveal any degenerative or traumatic arthritis either elbow. In summary, the evidence of record does demonstrate that the appellant has consistently complained of right and left elbow pain although he has denied having flare-ups. There are clinical findings of limited motion, pain, tenderness and fatigability. No degenerative or traumatic arthritis has been shown. In addition, the appellant's statements about his pain, pain on use, additional restrictions after repetitive use and reduced range of motion are lay assertions which may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Another factor to consider is the degree of pain experienced by the claimant. With increasing levels of pain, concomitantly increasing degrees of muscle spasm, weakness, atrophy, inability to function, and the like, are expected. 38 C.F.R. §§ 4.40, 4.45, 4.59. The appellant has described his subjective complaints of progressively worsen pain. The Court has held that 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 provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed when adjudicating claims under the diagnostic codes that require consideration of limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board also notes that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least the minimum compensable rating for the joint. For the elbow joint, 10 percent is the minimum compensable rating available under either Diagnostic Code 5003 or Diagnostic Code 5207, limitation of extension of the forearm. Examining the evidence summarized above, and giving due consideration to the provisions under 38 C.F.R. § 4.59, as well as due consideration to the provisions of 38 C.F.R. §§ 4.7, 4.10 and 4.40, the medical evidence of record shows that the appellant's range of motion in each elbow is from five to 145 degrees at worst. The normal range of motion of the elbow is from 0 degrees of extension to 145 degrees or more of flexion. 38 C.F.R. § 4.71, Plate I. An elbow disability may be rated based upon limitation of motion of the forearm. When forearm flexion is limited to 110 degrees in either extremity, a noncompensable rating is assigned. When it is limited to 100 degrees in either extremity, a 10 percent rating is assigned. When forearm flexion is limited to 90 degrees in either extremity, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5206. When forearm extension is limited to 45 degrees in either extremity, a 10 percent rating is assigned. When it is limited to 60 degrees in either extremity, a 10 percent rating is assigned. When forearm extension is limited to 75 degrees in either extremity, a 20 percent rating is assigned. Diagnostic Code 5207. Limitation of extension of either forearm to 100 degrees and extension to 45 degrees warrants a 20 percent evaluation. Diagnostic Code 5208. In this case, there is documentation of the complaints of some pain and tenderness to palpation and there was a clinically demonstrated limitation of five degrees of extension in each elbow. Thus, the clinical findings support a compensable disability rating of 10 percent in each elbow, including the findings referring to debility due to pain. However, the clinical evidence of record does not reflect any ankylosis of either elbow joint; limitation of flexion to 90 degrees; or limitation of extension to 75 degrees; or flexion limited to 100 degrees and extension limited to 45 degrees; such findings are required for a 20 percent rating under the criteria from Diagnostic Codes 5205, 5206, 5207 and 5208. The appellant has complained of bilateral elbow pain and a loss of five degrees of extension has been shown in each elbow. See 38 C.F.R. § 4.71, Plate I. Therefore, a 10 percent rating for each elbow is appropriate in light of the degree of disability which is objectively shown pursuant to 38 C.F.R. § 4.59. The Board notes that there are no other reported clinical indications of a significant degree of right or left elbow pain, such as muscle spasm, atrophy, swelling, trophic skin changes, and the like, see 38 C.F.R. §§ 4.40 and 4.45. Thus, none of the Diagnostic Codes discussed provide a basis for a higher rating for either elbow disability. Taking into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10 and 4.40, and giving the appellant the benefit of the doubt, limitation of right and left elbow motion coupled with his complaints of pain, the Board finds that the appellant's symptomatology more closely approximates limitation of motion of a major joint with evidence of pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Hence, the evidence supports a 10 percent rating for the right elbow pathology and for the left elbow pathology. However, an evaluation in excess of the currently assigned 10 percent evaluations is not warranted. The provisions of Diagnostic Codes 5205, 5206, 5207, 5208 and 5209, which provide for ratings in excess of 10 percent, have been considered. Diagnostic Code 5205 is not for application because the appellant has not demonstrated ankylosis of the either elbow. Furthermore, the appellant does not demonstrate the necessary level of limitation of his ability to flex or extend his right or left forearm such that an evaluation in excess of 10 percent would be warranted. Finally, Diagnostic Code 5209 is not for application because the appellant does not have a flail joint on either side. E. Other Considerations The Board acknowledges that the appellant, in advancing this appeal, believes that his various disabilities have been more severe than reflected by the assigned disability ratings. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the appellant's contentions. In this case, however, the competent medical evidence offering the specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the various disabilities. Indeed, the assignments of higher ratings by the RO and the Board have been based in part on the lay statements of records from the appellant and his spouse. Furthermore, the clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to his various disabilities since they consider the overall industrial impairment due to each service-connected condition. The preponderance of the most probative evidence does not support assignment of any higher rating for any disability on appeal during the period from May 29, 2009 onward. Finally, in light of the holding in the Hart case, the Board has considered whether the appellant is entitled to a "staged" rating for any disability on appeal. As reflected in the decision above, the Board has not found variation in his symptomatology or clinical findings for any one of the six disabilities on appeal that would warrant the assignment of any staged rating at any time during the appeal period. ORDER Entitlement to an increased disability rating in excess of 50 percent for the adhesions of the peritoneum residual to the in-service hepatorrhaphy is denied. An initial disability evaluation of 20 percent, but not more, is granted for the service-connected nonlinear abdominal surgery scar, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability evaluation in excess of 10 percent for the two service-connected painful abdominal scars is denied. Entitlement to a disability evaluation in excess of 30 percent for the service-connected headaches is denied. Entitlement to a disability evaluation in excess of 10 percent for the service-connected right elbow disability is denied. Entitlement to a disability evaluation in excess of 10 percent for the service-connected left elbow disability is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs