Citation Nr: 18153353 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-49 316 DATE: November 28, 2018 ORDER An initial compensable disability rating for a right elbow radial head fracture is denied. An initial compensable disability rating for a right foot fifth digit fracture is denied. FINDINGS OF FACT 1. The Veteran’s right elbow radial head fracture is not productive of limitation of forearm flexion, limitation of forearm extension, malunion or nonunion of the ulna, malunion or nonunion of the radius, limitation of supination, ankylosis, painful motion, cubitus varus, cubitus valgus, ununited fracture, flail joint, or the functional equivalent thereof. 2. The Veteran’s right foot fifth digit fracture is not productive of moderate symptoms, limited or painful motion, pes planus, bilateral weak foot, pes cavus, metatarsalgia, hallux valgus, hallux rigidus, hammer toes, nonunion or malunion of the tarsal or metatarsal bones, or the functional equivalent thereof. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for a right elbow radial head fracture have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5206 (2017). 2. The criteria for an initial compensable disability rating for a right foot fifth digit fracture have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7 4.10, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. On appeal, the Veteran contends that he has pain in his arm and foot, including severe swelling, sometimes necessitating time off from work. The Veteran categorizes the pain in his elbow as moderate to severe when he puts pressure on it. As to his foot, the Veteran claims that he wears larger-than-normal shoes to accommodate his condition. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. While separate diagnostic codes identify the various disabilities, codes ending in “99” are for all unlisted conditions. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, closely are analogous. 38 U.S.C. § 1155; 38 C.F.R. § 4.20. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran’s symptoms are most prevalent (“flare-ups”) due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204–07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). 1. Entitlement to a compensable disability rating for a right elbow radial head fracture Limitation of motion in the Veteran’s elbows and forearms is currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under this code, a noncompensable rating is warranted for flexion of the forearm limited to 110 degrees. Flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. Flexion limited to 70 degrees warrants a 30 percent rating in the dominant extremity and a 20 percent rating in the nondominant extremity. Flexion limited to 55 degrees warrants a 40 percent rating in the dominant extremity and a 30 percent rating in the nondominant extremity. Flexion limited to 45 degrees warrants a 50 percent rating in the dominant extremity and a 40 percent rating in the nondominant extremity. Alternative and additional Diagnostic Codes for the elbows and forearms are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5205, favorable ankylosis of the elbow at an angle between 90 and 70 degrees is rated at 40 percent in the dominant extremity and at 30 percent in the nondominant extremity. Intermediate ankylosis of the elbow at an angle of more than 90 degrees or between 70 and 50 degrees is rated at 50 percent in the dominant extremity and at 40 percent in the nondominant extremity. Unfavorable ankylosis of the elbow at an angle of less than 50 degrees or with complete loss of supination or pronation is rated at 60 percent in the dominant extremity and at 50 percent in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5207, extension of the forearm limited to 45 degrees warrants a 10 percent rating. Extension limited to 75 degrees warrants a 20 percent rating. Extension limited to 90 degrees warrants a 30 percent rating in the dominant extremity and a 20 percent rating in the nondominant extremity. Extension limited to 100 degrees warrants a 40 percent rating in the dominant extremity and a 30 percent rating in the nondominant extremity. Extension limited to 110 degrees warrants a 50 percent rating in the dominant extremity and a 40 percent rating in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5208, flexion of the forearm limited to 100 degrees and extension of the forearm limited to 45 degrees warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5209, joint fracture of the elbow with marked cubitus varus or cubitus valgus deformity or with ununited fracture of the head of the radius is rated at 20 percent. Flail joint is rated at 60 percent in the dominant extremity and at 50 percent in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5210, nonunion of the radius and ulna with flail false joint is rated at 50 percent in the dominant extremity and at 40 percent in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5211, malunion of the ulna with bad alignment is rated at 10 percent. Nonunion in the lower half of the ulna is rated at 20 percent. Nonunion in the upper half of the ulna with false movement but without loss of bone substance or deformity is rated at 30 percent in the dominant extremity and at 20 percent in the nondominant extremity. Nonunion in the upper half of the ulna with false movement, loss of an inch or more of bone substance, and marked deformity is rated at 40 percent in the dominant extremity and at 30 percent in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5212, malunion of the radius with bad alignment is rated at 10 percent. Nonunion in the upper half of the radius is rated at 20 percent. Nonunion in the lower half of the radius with false movement but without loss of bone substance or deformity is rated at 30 percent in the dominant extremity and at 20 percent in the nondominant extremity. Nonunion in the lower half of the radius with false movement, loss of an inch or more of bone substance, and marked deformity is rated at 40 percent in the dominant extremity and at 30 percent in the nondominant extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5213, limitation of supination to 30 degrees or less is rated at 10 percent. Limitation of pronation with motion lost beyond the last quarter of the arc and the hand not approaching full pronation is rated at 20 percent. Limitation of pronation with motion lost beyond the middle of the arc is rated at 30 percent in the dominant extremity and 20 percent in the nondominant extremity. Loss of supination and pronation due to bone fusion with the hand fixed near the middle of the arc or in moderate pronation is rated at 20 percent. Loss of supination and pronation due to bone fusion with the hand fixed in full pronation is rated at 30 percent in the dominant extremity and at 20 percent in the nondominant extremity. Loss of supination and pronation due to bone fusion with the hand fixed in supination or hyperpronation is rated at 40 percent in the dominant extremity and at 30 percent in the nondominant extremity. In his January 2015 claim, the Veteran described pain on the outside of his elbow. In April 2015 the Veteran underwent a VA examination for his right elbow. During that examination, the Veteran reported chronic pain and occasional swelling to the size of a “grapefruit.” The Veteran stated that he uses a brace for support and, upon swelling, packs his elbow in ice. The Veteran described his functional loss as “pain and swelling.” The Veteran’s right elbow flexion and extension and right forearm supination and pronation were all noted to have normal ranges of motion with no pain noted on movement. There likewise was no pain noted with weight bearing, localized tenderness, evidence of crepitus, ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examiner noted that the Veteran’s right elbow condition had no functional impact on his ability to work. In his concluding notes, the VA examiner noted that there were no gross abnormalities of the Veteran’s right elbow. In his October 2015 notice of disagreement, the Veteran reported that he was still having pain and swelling in his elbow. In his April 2016 substantive appeal, he reported severe swelling. He rated his pain as moderate to severe and stated that it interfered with his work. The Board finds that a compensable evaluation is not warranted for the Veteran’s right elbow disability. All available evidence shows full ranges of motion without evidence of pain. There is no evidence impairment of the ulna or radius. There is no evidence of ankylosis, painful motion, cubitus varus, cubitus valgus, ununited fracture, or flail joint. Indeed, the examination showed no current residuals of the Veteran’s fracture beyond his subjective reports of pain. He has not provided any treatment records which contradict these findings. The Board does not find that the Veteran’s reports of pain, absent any objective findings or showing of treatment, rise to the functional equivalence of higher ratings. Thus, the Veteran does not qualify for a compensable disability rating. While the Board acknowledges that the Veteran is both competent and credible in reporting that he experiences pain and swelling in his elbow, the rating criteria adequately account for any such loss of range of motion due to any pain. On examination he was noted to have completely normal ranges of motion and supination and pronation without any evidence of pain. Thus, the Board finds more probative of the severity of the Veteran’s condition the April 2015 VA examination. See DeLuca, 8 Vet. App. at 204–07; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59. 2. Entitlement to a compensable disability rating for a right foot fifth digit fracture The Veteran’s right foot fifth digit fracture is rated as “other foot injuries” under 38 C.F.R. § 4.71a, Diagnostic Code 5284. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. Alternative and additional Diagnostic Codes for the feet are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Acquired pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for bilateral or unilateral moderate flatfoot, with a weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 20 percent rating is warranted for unilateral severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted for bilateral severe flatfoot as described above or for unilateral pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasms of the tendo achillis on manipulation, and no improvement by orthopedic shoes or appliances. A 50 percent rating is warranted for bilateral pronounced flatfoot as described above. Bilateral weak foot is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5277. The disability is defined as a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. It is to be rated based on the underlying condition but with a minimum rating of 10 percent. Acquired pes cavus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5278. A 0 percent rating is warranted for slight pes cavus. A 10 percent rating is warranted for unilateral or bilateral pes cavus with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads. A 20 percent rating is warranted for unilateral pes cavus and a 30 percent rating is warranted for bilateral pes cavus when all toes tend to dorsiflexion, there is limitation of dorsiflexion at the ankle to a right angle, plantar fascia are shortened, and there is marked tenderness under the metatarsal heads. A 30 percent rating is warranted for unilateral pes cavus and a 50 percent rating is warranted for bilateral pes cavus when there is marked contraction of the plantar fascia with dropped forefoot, all toes are hammer toes, there are very painful callosities, and there is marked varus deformity. Unilateral or bilateral metatarsalgia (Morton’s disease) is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5279. Unilateral hallux valgus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280. A 10 percent rating is warranted for operated hallux valgus with resection of the metatarsal head, or for severe hallux valgus if equivalent to amputation of the great toe. Under 38 C.F.R. § 4.71a, Diagnostic Code 5281, unilateral severe hallux rigidus is to be rated as severe hallux valgus. Ratings for hallux rigidus are not to be combined with ratings for pes cavus. Hammer toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282. Single hammer toes are rated at 0 percent. All toes, unilateral, without claw foot, are rated at 10 percent. Nonunion or malunion of the tarsal or metatarsal bones are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5283. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. In his January 2015 claim, the Veteran described pain on the outside of his foot, causing difficulty walking and sometimes standing. In April 2015 the Veteran underwent a VA examination for his right foot fifth digit fracture. During the examination, the Veteran reported that the pain he experiences in his right foot fifth digit travels up into his thigh, which sometimes causes difficulty with employment and walking. The Veteran also reported flare-ups of his foot with occasional swelling and pain. His right foot did not test positive for flatfoot, Morton’s neuroma, hammer toe, hallux valgus, hallux rigidus, clawfoot, or any other foot injury or condition. There was no objective evidence of pain during the examination, and the examiner reported that there was no functional loss that contributed to either range of motion or employment (to include standing, walking, lifting, and sitting). The examiner found that the toe fracture did not chronically compromise weight bearing or affect his right side in any way. In his concluding remarks, the examiner noted no abnormalities found on examination and that the Veteran had a normal right foot. In his April 2016 substantive appeal, the Veteran reported continued pain and swelling. He stated that he had to wear bigger shoes due to the pain that goes from his foot to his knee and requires him to miss work. The Veteran has not displayed any moderate symptoms attributable to his right foot fifth digit fracture to warrant a compensable disability rating. At the outset of the examination, the examiner noted that the Veteran currently did not have a diagnosis associated with his right foot fifth digit fracture he incurred during service. The examiner evaluated the Veteran for a myriad of foot conditions, for all of which the Veteran exhibited no signs or symptoms. There is no evidence of limited or painful motion, pes planus, bilateral weak foot, pes cavus, metatarsalgia, hallux valgus, hallux rigidus, hammer toes, or nonunion or malunion of the tarsal or metatarsal bones. Indeed, the examination showed no current residuals of the Veteran’s fracture beyond his subjective reports of pain. He has not provided any treatment records which contradict these findings. The Board does not find that the Veteran’s reports of pain, absent any objective findings or showing of treatment, rise to the functional equivalence of higher ratings. Thus, the Veteran does not qualify for a compensable disability rating While the Board finds competent and credible the Veteran in reporting that he occasionally experiences pain from his right foot that radiates up into his thigh, the Board does not find that any such pain is associated with his right foot fifth digit fracture. The examiner noted that there was no pain during the examination, and that the Veteran’s condition did not impair his ability to perform occupational tasks. The examiner specifically noted that there were no abnormalities and that the Veteran has a “normal right foot.” Without any other disability of the foot or any other moderate symptoms limiting the Veteran, a compensable disability rating is not appropriate at this time. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel