Citation Nr: 1800372 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-15 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable rating for service-connected left elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Bulger, Associate Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously before the Board in May 2017 when it was remanded for another VA examination that complies with the requirements established by Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). The examination was conducted, and the Correia requirements satisfied. Thus, the RO substantially complied with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, a claim for a total rating for compensation purposes based on individual unemployability (TDIU) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran, nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). FINDING OF FACT The Veteran's left elbow disability is manifest by painful motion productive of forearm extension limited to 25 degrees, forearm flexion limited to 140 degrees, and forearm supination and pronation limited to 75 degrees. CONCLUSION OF LAW The criteria for a 10 percent rating for service-connected left elbow olecranon tendon calcification have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5205-5213 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has not identified any deficiencies related to the VA's duties to notify and assist; therefore, the Board need not discuss these issues before addressing the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 the Veteran's failure to raise a duty to assist argument before the Board). The RO rated the Veteran's left (minor) elbow disability using an analogous Diagnostic Code (DC) 5299-5207. 38 C.F.R. § 4.71a. During the appeal period, the VA conducted four elbow examinations. See October 2008, October 2010, February 2016 and June 2017 VA Examinations. At its most limited, the Veteran's left forearm range of motion exhibited extension to 25 degrees, flexion to 140 degrees, supination to 75 degrees and pronation to 75 degrees. These measurements account for pain on motion. Under DC 5206, flexion of the minor forearm limited to 110 degrees is rated as non-compensable; flexion limited to 100 degrees warrants a 10 percent rating, and flexion limited to 90 degrees warrants a 20 percent rating. Higher ratings are for assignment under that Diagnostic Code for greater limitation of flexion. Under DC 5207, extension of the minor forearm limited to either 45 or 60 degrees warrants a 10 percent rating, and extension limited to 75 degrees warrants a 20 percent rating. Higher ratings are for assignment under that Diagnostic Code for greater limitation of extension. Under DC 5208, flexion of the forearm limited to 100 degrees and extension limited to 45 degrees warrants a 20 percent rating. Under DC 5213, the Veteran would have to have limitation of supination to 30 degrees or less for a 10 percent rating; pronation motion lost beyond last quarter of the arc so that the hand does not approach full pronation, or pronation motion lost beyond the middle of the arc, or loss of supination or pronation such that the hand is either fixed near the middle of the arc (moderate pronation) or in full pronation for a 20 percent rating. Where the hand is fixed in supination or pronation, a maximum 30 percent rating is for assignment under that Diagnostic Code. Where functional loss due to painful joint motion is an issue, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by these sections, but may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Painful joints are entitled to the minimum compensable rating even when they do not meet the schedular requirements for the applicable minimum rating. 38 C.F.R. § 4.59. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that section 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis). The Veteran's left elbow range of motion does not qualify for the minimum compensable rating under any of the relevant diagnostic codes; none of the measurements for limitations of motion meet the requirements under DC 5206, 5207, 5208 or 5213 for a disability rating of ten percent or greater. Moreover, the left elbow disability is not associated with any condition that would qualify under DC 5205 or 5209-5212; none of the VA examinations show ankylosis, arthritis, flail joint, loss of bone, fracture, dislocation or misalignment in the left elbow, ulna or radius. Therefore, it is not possible to have a compensable rating under DC 5205 or 5209-5212. However, the 2017 VA examiner noted that the Veteran's left elbow pain causes functional loss in his ability to lift and carry even though his elbow motion is only mildly impaired. See June 2017 VA Examination. The record supports a finding that the Veteran experiences left elbow functional limitation due to pain, which impacts the normal working movements of his body and his ability to perform some occupational tasks. In addition, VA regulations require at least the minimum compensable rating for a painful joint even when it does not meet the schedular requirements. 38 C.F.R. § 4.59. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As a result, the Board finds that the Veteran is entitled to the minimum compensable rating of 10 percent for his left elbow disability from the date of his claim. ORDER Entitlement to the minimum compensable rating of 10 percent for service-connected left elbow olecranon tendon calcification is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs