Citation Nr: 18149823 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 17-49 589 DATE: November 13, 2018 ORDER An initial compensable rating for a disability of the lateral epicondylitis of the left elbow is denied. An increased compensable rating for a disability of the lateral epicondylitis of the right elbow is denied. An increased rating in excess of 10 percent for an injury of the left wrist, status post scaphoid fracture is denied. FINDINGS OF FACT 1. The Veteran’s lateral epicondylitis of the left elbow is manifested by pain on palpation and excess fatigability, without significant limitation of motion or other disability of the elbow. 2. The Veteran’s lateral epicondylitis of the right elbow is manifested by pain on palpation and excess fatigability, without significant limitation of motion or other disability of the elbow. 3. The Veteran’s residuals of an injury of the left wrist, status post scaphoid fracture, is primarily manifested by limitation of motion of palmer flexion to 30 degrees and limitation of dorsiflexion to 20 degrees, with objective pain on motion at 20 degrees and 15 degrees respectively, without evidence of ankylosis of the wrist. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a lateral epicondylitis of the left elbow have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5206. 2. The criteria for an initial compensable rating for a lateral epicondylitis of the right elbow have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Code 5206. 3. The criteria for an initial rating in excess of 10 percent for an injury of the left wrist, status post scaphoid fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Code 5206. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 1982 to February 2015. Increased Rating 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. § 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 evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.” 1. An initial compensable rating for a lateral epicondylitis of the left elbow Service connection for lateral epicondylitis of the left elbow was granted by the Regional Office (RO) in a July 2015 rating decision. The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 5206 from the date following the day of the Veteran’s separation from active duty in February 2015. An examination was conducted by VA in December 2014. At that time, the diagnosis was bilateral lateral epicondylitis. It was noted that the Veteran was right hand dominant. Range of motion of the left elbow was flexion to 145 degrees or greater, without objective evidence of painful motion. Extension was to 0 degrees, without objective evidence of painful motion. The Veteran was able to perform repetitive use testing, without additional limitation of motion. The Veteran described excess fatigability as functional impairment. He reported pain on palpation. Muscle strength testing was normal. There was no ankylosis or additional impairment such as impairment of supination, pronation, or flail joint. The Veteran had not had surgery on the elbow. The examiner commented that the elbow condition did not impact the Veteran’s ability to work. Normal ranges of motion of the elbow and forearm are 0 degrees to 145 degrees in elbow flexion. 38 C.F.R. § 4.71, Plate I. In all the forearm and wrist injuries, Diagnostic Codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle injury, or nerve injury are to be separately rated and combined, not to exceed the rating for loss of use of the hand. Diagnostic Code 5205 provides that ankylosis of the elbow is to be rated as follows: for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, 40 percent for the major elbow and 30 percent for the minor elbow; for intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, 50 percent for the major elbow and 40 percent for the minor elbow; for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, 60 percent for the major elbow and 50 percent for the minor elbow. 38 C.F.R. § 4.71a. Diagnostic Code 5206 provides that flexion of the forearm limited to 110 degrees is rated as noncompensably (0 percent) disabling for the major side and noncompensably (0 percent) disabling for the minor side; flexion of the forearm limited to 100 degrees is rated 10 percent disabling for the major side and 10 percent for the minor side; flexion of the forearm limited to 90 degrees is rated 20 percent for the major side and 20 percent for the minor side; flexion of the forearm limited to 70 degrees is rated 30 percent disabling for the major side and 20 percent for the minor side; flexion of the forearm limited to 55 degrees is rated 40 percent disabling for the major side and 30 percent for the minor side; and flexion of the forearm limited to 45 degrees is rated 50 percent disabling for the major side and 40 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5207 provides that extension of the forearm limited to 45 degrees is rated 10 percent for the major side and 10 percent for the minor side; extension of the forearm limited to 60 degrees is rated 10 percent for the major side and 10 percent for the minor side; extension of the forearm limited to 75 degrees is rated as 20 percent for the major side and 20 percent for the minor side; extension of the forearm limited to 90 degrees is rated 30 percent for the major side and 20 percent for the minor side; extension of the forearm limited to 100 degrees is rated 40 percent for the major side and 30 percent for the minor side; and extension of the forearm limited to 110 degrees is rated 50 percent for the major side and 40 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5208 provides that forearm flexion limited to 100 degrees with forearm extension limited to 45 degrees is rated 20 percent for the major side and 20 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5209 provides ratings for other impairment of the elbow. Joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, is rated 20 percent disabling for the major side and 20 percent for the minor side. Flail joint of the elbow is rated 60 percent disabling for the major side and 50 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5210 provides that nonunion of the radius and ulna, with flail false joint, is rated 50 percent disabling for the major side and 40 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5211 provides for ratings based on impairment of the ulna. Malunion of the ulna with bad alignment is rated 10 percent for the major side and 10 percent for the minor side; nonunion of the ulna in the lower half is rated 20 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, without loss of bone substance or deformity is rated 30 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent for the major side and 30 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5212 provides for ratings based on impairment of the radius. Malunion of the radius with bad alignment is rated 10 percent disabling for the major side and 10 percent for the minor side; nonunion of the radius in the upper half is rated 20 percent disabling for the major side and 20 percent for the minor side; nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity is rated 30 percent disabling for the major side and 20 percent for the minor side; nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent disabling for the major side and 30 percent for the minor side. 38 C.F.R. § 4.71a. Diagnostic Code 5213 provides ratings based on impairment of supination and pronation of the forearm. Normal forearm supination is from 0 degrees to 80 degrees. Normal forearm pronation is from 0 degrees to 85 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5213 provides that supination of the forearm limited to 30 degrees or less is rated 10 percent disabling for the major side and 10 percent for the minor side. Limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation, is rated 20 percent disabling for the major side and 20 percent for the minor side; limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling for the major side and 20 percent for the minor side. Loss of supination or pronation due to bone fusion, with the hand fixed near the middle of the arc or moderate pronation, is rated 20 percent disabling for the major side and 20 percent for the minor side; loss of supination or pronation due to bone fusion, with the hand fixed in full pronation, is rated 30 percent disabling for the major side and 20 percent for the minor side; and loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling for the major side and 30 percent for the minor side. 38 C.F.R. § 4.71a. While the Veteran did have complaints of pain on palpation and excess fatigability, the VA examination in December 2014 showed that he did not have limitation of motion or significant disability of his left elbow. Significantly, there was no functional impairment due to pain and the examiner indicated that the Veteran’s elbow disorder did not interfere in any way with his ability to maintain employment. Under these circumstances, there is no basis for a compensable evaluation for the Veteran’s left elbow disability. As the examinations of record, to include those recorded in his private treatment records, show no limitation of motion or significant, ratable disability of the left elbow, the Board finds that a preponderance of the evidence is against the Veteran’s appeal for a higher initial rating and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. An increased compensable rating for disability of the lateral epicondylitis right elbow Service connection for lateral epicondylitis of the right elbow was granted by the RO in a July 2015 rating decision. The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 5206 from the date following the day of the Veteran’s separation from active duty in February 2015. An examination was conducted by VA in December 2014. At that time, the diagnosis was bilateral lateral epicondylitis. It was noted that the Veteran was right hand dominant. Range of motion of the right elbow was flexion to 145 degrees or greater, without objective evidence of painful motion. Extension was to 0 degrees, without objective evidence of painful motion. The Veteran was able to perform repetitive use testing, without additional limitation of motion. The Veteran described excess fatigability as functional impairment, but no pain. He had pain on palpation. Muscle strength testing was normal. There was no ankylosis or additional impairment such as impairment of supination, pronation, or flail joint. The Veteran had not had surgery on the elbow. The examiner commented that the elbow condition did not impact the Veteran’s ability to work. While the Veteran did have complaints of pain and excess fatigability, the VA examination in December 2014 showed that he did not have limitation of motion or significant disability of his right elbow. Significantly, there was no functional impairment due to pain and the examiner indicated that the Veteran’s elbow disorder did not interfere in any way with his ability to maintain employment. Under these circumstances, there no basis for a compensable evaluation for the Veteran’s right elbow disability. As the examinations of record, to include those reported in his private treatment records, show no limitation of motion or significant, ratable disability of the right elbow, the Board finds that a preponderance of the evidence is against the Veteran’s appeal for a higher initial rating and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Id. 3. An increased rating in excess of 10 percent for an injury of the left wrist, status post scaphoid fracture Service connection for residuals of an injury of the left wrist was granted by the RO in a July 2015 rating decision. The 10 percent initial disability rating was awarded under the provisions of Code 5215 from the date following the day of the Veteran’s separation from active duty in February 2015. An examination was conducted by VA in December 2014. At that time, the diagnoses were status post scaphoid fracture and wrist strain of the left wrist. The Veteran described having spontaneous pain of the left wrist that had improved with treatment of dry needling and deep tissue manipulation. He reported flare-ups that he described as decreased strength. Left palmar flexion was to 30 degrees, with painful motion beginning at 20 degrees. Dorsiflexion was to 20 degrees with objective pain at 15 degrees. The Veteran was able to perform repetitive use testing without additional limitation of motion. Functional loss was described as less movement than normal, excess fatigability, pain on movement, and deformity. The Veteran did have pain on palpation. Muscle strength testing was normal. There was no ankylosis. There was no history of surgical procedures. X-ray studies showed an old fracture of the carpal navicular with residual deformity and decrease in the size of the bone. Swelling extended over the dorsum of the wrist without an acute fracture or dislocation demonstrated. The Veteran’s left wrist disorder was said to impact his ability to work in that he had difficulty with physical activity and heavy lifting. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5214 provides ratings for ankylosis of the wrist. Favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist and 20 percent for the minor wrist; ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist; and unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist. 38 C.F.R. § 4.71a. A Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. 38 C.F.R. § 4.71a. The December 2014 VA examination shows that the Veteran has limitation of motion of palmer flexion to 30 degrees and limitation of dorsiflexion to 20 degrees, with objective pain on motion at 20 degrees and 15 degrees respectively. These findings are similar to those shown in the Veteran’s private treatment records. The current rating of 10 percent is based upon the limitation of dorsiflexion, with the Veteran able to retain motion in excess of the line of the forearm. There is no evidence of ankylosis, which would be required for a rating in excess of the current 10 percent rating. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for residuals of an injury of the left wrist and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio