Citation Nr: 18140079 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-22 373 DATE: October 2, 2018 ORDER Entitlement to an increased rating for the Veteran’s service connected residuals of a fracture to left elbow (the left elbow) manifested by limitation of supination exceeding 10 percent, since October 7, 2011, is denied. Entitlement to an increased rating for the Veteran’s service connected residuals of a fracture to the transverse process in the L-1 area of the spine (the “back”) exceeding 10 percent, since October 7, 2011, is denied. Entitlement to an increased rating for the Veteran’s service connected residual, scar, status post left elbow (left elbow scar) surgery exceeding 10 percent, since October 7, 2011, is denied. FINDINGS OF FACT 1. The evidence of record does not show the Veteran’s supination to include a limitation of pronation, or loss of bone fusion. 2. The evidence of record does not show that the Veteran’s spine has a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. The evidence of record does not reasonably show that the Veteran has three or four unstable or painful scars, or burns related to his post left elbow surgery scar. CONCLUSIONS OF LAW 1. The criteria for a rating exceeding 10 percent for residuals of a left elbow injury manifested by limitation of supination from October 7, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5213. 2. The criteria for a rating exceeding 10 percent for residuals of fracture to the transverse process in the L-1 area of the spine since October 7, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating exceeding 10 percent for the Veteran’s post left elbow surgery scar, since October 7, 2011, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to August 1990. The Veteran appeals a September 2012 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in New York, New York. The Veteran requested a hearing in his June 2014 VA Form 9. In November 2017, the Veteran failed to appear at his Board hearing. Shortly, before the Veteran’s November Board hearing, the Veteran requested to reschedule his November hearing. A new Board hearing was not rescheduled because good cause for the failure to attend the first hearing was not shown. In May 2018, the Veteran’s representative submitted an appellate brief. The Board sent the Veteran a hearing clarification letter in July 2018 to determine if the Veteran still wanted to reschedule his Board hearing. The Board did not receive a response. Increased Rating The Veteran asserts that he is entitled to an initial increased rating for a post left elbow surgery scar, and residuals of a right elbow injury manifested by limitation of supination. The Veteran asserts the he is entitled to a non-initial rating for residuals of fracture to the transverse process in the L-1 area of the spine. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board does not find staged ratings necessary. I. Residuals of Left Elbow Fracture Manifested by Limitation of Supination The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are Diagnostic Codes 5206 and 5207, applicable to limitation of flexion and extension of the elbow, respectively. Under Diagnostic Code 5206, a 10 percent rating is warranted for either the major or minor elbow where there is forearm limitation of flexion to 100 degrees. Under Diagnostic Code 5207, a 10 percent rating is warranted for either the major or minor elbow where there is forearm limitation of extension to either 45 or 60 degrees. For a 20 percent disability evaluation, there must be limitation of forearm flexion to 90 degrees (Diagnostic Code 5206), or limitation of forearm extension to 75 degrees (Diagnostic Code 5207). For a 30 percent disability evaluation, there must be limitation of forearm flexion to 70 degrees (Diagnostic Code 5206), or limitation of forearm extension to 90 degrees (Diagnostic Code 5207). For the next higher, 40 percent disability evaluation, there must be limitation of forearm flexion to 55 degrees (Diagnostic Code 5206), or limitation of forearm extension to 100 degrees (Diagnostic Code 5207). For the highest, 50 percent disability evaluation, there must be limitation of forearm flexion to 45 degrees (Diagnostic Code 5206), or limitation of forearm extension to 110 degrees (Diagnostic Code 5207). See 38 C.F.R. § 4.71a, Diagnostic Codes 5206-5207. Impairment of supination and pronation of the hand is rated under Diagnostic 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 does not approach full pronation; or for bone fusion where the hand is fixed near the middle of the arc or moderate pronation. A 30 percent rating is warranted for limitation of pronation with motion lost beyond middle of arc; or for bone fusion where the major hand is fixed in full pronation. A 40 percent rating is warranted for bone fusion where the major hand is fixed in supination or hyperpronation. See 38 C.F.R. § 4.71a, Diagnostic Code 5213. In July 2012 the Veteran was afforded a VA examination. The VA examiner noted the Veteran was right-handed. On initial ROM, the left elbow flexion ending at 130 degrees with objective painful motion beginning at 125 degrees. The VA examiner noted no limitation to the Veteran’s left elbow extension. After repetitive use testing, left elbow flexion ended at 125 degrees, and there was no limitation on the Veteran’s left elbow extension. The Veteran’s left elbow injury caused pain on movement. The VA examiner opined that the Veteran had normal muscle strength, and did not have ankylosis of the elbow. Further, the VA examiner noted that supination was limited to 30 degrees or less. The July 2012 VA examination noted that he has a limitation of supination of 30 degrees or less to his left elbow. Under DC 5213, a 10 percent disability is the maximum rating for limitation of supination. The evidence of record does not reflect a limitation of pronation, or loss of bone fusion. As such, a higher rating under DC 5213 is not warranted. Based on the above, an increased rating greater than 10 percent is not warranted for the Veteran’s residuals of left elbow fracture manifested by limitation of supination. The evidence of record is also silent on the presence of an impairment of the radius or ulna. Further, the July 2012 VA examiner denied the presence of ankylosis of the elbow. Thus, a higher rating under DC 5205, 5210-5212 are not warranted. As noted above, the Veteran is currently rated under DC 5206. Finally, the July 2012 VA examiner noted that there was no limitation of left elbow extension. Consequently, a rating greater than 10 percent for the Veteran’s residuals of left elbow fracture manifested by limitation of supination is denied. It is important for the Veteran to understand that a 10 percent disability for an elbow injury will cause the Veteran some problems. The only question is the degree of the problem based on the criteria above. II. Residuals of Fracture to the Transverse Process in the L-1 area of the Spine For diagnostic codes 5235 to 5243, a spinal injury is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-43. A 100 percent rating is granted for an unfavorable ankylosis of the entire spine. If the spine injury is an unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent rating is warranted. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. A 30 percent rating is warranted if forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Id. Finally, a forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Id. Under Note 1, the Board can evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. The Veteran was afforded a VA examination in July 2012. The Veteran had an initial range of motion (ROM) with forward flexion ending at 80 degrees with objective painful motion beginning at 70 degrees, extension ends at 15 degrees with objective painful motion beginning at 10 degrees, right lateral flexion ends at 20 degrees beginning at 20 degrees, left lateral flexion ends at 15 degrees with objective painful motion beginning at 15 degrees, right lateral rotation ends at 25 with objective painful motion beginning at 25 degrees, and left lateral rotation ends at 25 degrees with objective painful motion beginning at 25 degrees. After repetitive use testing, the Veteran had a range of motion (ROM) with forward flexion ending at 70 degrees, extension ending at 10 degrees, right lateral flexion ends at 20 degrees, left lateral flexion ending at 15 degrees, right lateral rotation ending at 25 degrees, and left lateral rotation ending at 25 degrees. The Veteran had pain on movement, with tight upper lumbar paraspinals. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The VA examiner noted that the Veteran had normal muscle strength, and did not have muscle atrophy. The VA examiner noted that the Veteran did not present signs or symptoms due to radiculopathy, nor any other neurologic abnormalities related to a thoracolumbar spine condition. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. In an October 2013 VA medical note, a VA physician noted that the Veteran did not have signs of radiculopathy. Based on the above, the Board finds that an increase rating exceeding 10 percent is not warranted. The Veteran has a combined ROM of the thoracolumbar spine of 180 degrees, forward flexion of the thoracolumbar spine is at 70 degrees, and pain on movement. The evidence of record does not reflect unfavorable ankylosis of either the entire or thoracolumbar spine. As such, a rating at 100 and 50 percent is unwarranted. The Veteran’s forward flexion of the thoracolumbar spine is at 70 degrees. As such, a rating of 40 percent is unavailable because the forward flexion of the thoracolumbar spine is not less than 30 degrees. Further, a rating of 20 percent rating is unwarranted because the forward flexion is greater than 60 degrees. The combined ROM of the thoracolumbar spine is greater than 120 degrees, and the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The VA examiner noted that the Veteran had normal muscle strength, and did not have muscle atrophy. Finally, the July 2012 VA examiner, and the October 2013 VA medical note denied the presence of radiculopathy. The July 2012 VA examiner opined that the Veteran did not have any other neurologic abnormalities related to a thoracolumbar spine condition. Therefore, a separate rating under note 1 is not warranted. Consequently, a rating greater than 10 percent for the Veteran’s residuals of fracture to the transverse process in the L-1 area of the spine is denied. Again, it is important for the Veteran to understand that a 10 percent disability for a spinal injury will cause the Veteran problems. The only question is the degree of the problem based on the criteria above. III. Post Left Elbow Surgery Scar Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars are evaluated under diagnostic codes 7800, 7801, 7802 and 7804. Any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code. Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating requires an area or areas of 144 square inches (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides that a 10 percent rating is assignable for burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801. According to Diagnostic Code 7804, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three or four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 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. The Veteran was given a VA examination in July 2012. The VA examiner reported that the Veteran had one scar at the left elbow. The Veteran’s scar was 0.5 cm wide, and 16.5 cm long. The VA examiner opined that the scar was painful with no signs of skin breakdown. Additionally, the Veteran’s scar has no edema, keloid formation, or other disabling effects. The Veteran reported sensitivity to pain in 2012, 2013, and 2018. Based on the above, the Board finds that a rating greater than 10 percent is not warranted. According to the July 2012 VA exam, the Veteran had only one painful scar related to his left elbow surgery. As such, a rating of 20 and 30 percent under DC 7804 is not warranted. The evidence of record does not reflect the presence of burn scars. The Veteran’s scar was 0.5 cm wide and 16.5 cm long. Thus, an increased rating under DC 7800, 7801, and 7802 is not warranted. Consequently, a rating greater than 10 percent for the Veteran’s post left elbow surgery scar is not warranted. Again, overall, a generally combined 30% percent disability evaluation will cause the Veteran many problems (very generally indicating a 30% reduction in the ability to work). The only question above is the degree of the problem based on the standards set up above. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regards to these claims. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming the Board is not required to address issues raised by the claimant or reasonably raised by the evidence of record). JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel