Citation Nr: 18153682 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-54 684 DATE: November 28, 2018 ORDER Entitlement to a compensable disability rating for left elbow rheumatoid arthritis based on limitation of extension of the left elbow prior to September 26, 2016 and in excess of 10 percent from September 26, 2016 is denied. Entitlement to a compensable disability rating for right elbow rheumatoid arthritis based on limitation of extension of the right elbow prior to September 26, 2016 and in excess of 10 percent from September 26, 2016 is denied. Entitlement to a disability rating in excess of 10 percent for left elbow rheumatoid arthritis based on limited flexion of the left elbow is denied. Entitlement to a disability rating in excess of 10 percent for right elbow rheumatoid arthritis based on limited flexion of the right elbow is denied. REMANDED Entitlement to service connection for an eye disorder is remanded. Entitlement to a disability rating in excess of 10 percent for left knee rheumatoid arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right knee rheumatoid arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for left ankle rheumatoid arthritis is remanded Entitlement to a disability rating in excess of 10 percent for right ankle arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for left wrist degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right wrist condition degenerative arthritis is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left elbow rheumatoid arthritis did not manifest extension limited to at least 45 degrees before September 26, 2016 or at least 75 degrees on or after September 26, 2016. 2. The Veteran’s right elbow rheumatoid arthritis did not manifest extension limited to at least 45 degrees before September 26, 2016 or at least 75 degrees on or after September 26, 2016. 3. The Veteran left elbow rheumatoid arthritis did not manifest flexion limited to at least 90 degrees; flexion limited to 100 degrees and extension limited to 45 degrees; ankylosis; flail joint, malunion or nonunion, or impairment of supination and pronation; or total incapacitation. 4. The Veteran right elbow did not manifest flexion limited to at least 90 degrees; flexion limited to 100 degrees and extension limited to 45 degrees; ankylosis; flail joint, malunion or nonunion, or impairment of supination and pronation; or total incapacitation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for left elbow rheumatoid arthritis based on limitation of extension of the left elbow prior to September 26, 2016 and in excess of 10 percent from September 26, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5207 (2018). 2. The criteria for entitlement to a compensable disability rating for right elbow rheumatoid arthritis based on limitation of extension of the right elbow prior to September 26, 2016 and in excess of 10 percent from September 26, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5207 (2018). 3. The criteria for entitlement to a disability rating in excess of 10 percent for left elbow rheumatoid arthritis based on limited flexion of the left elbow have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5206 (2018). 4. The criteria for entitlement to a disability rating in excess of 10 percent for right elbow rheumatoid arthritis based on limited flexion of the right elbow have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5206 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to August 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. The Veteran was notified of his right to a personal hearing before the Board, but did not request a Board hearing. The Board notes that the Veteran initially appealed the issues of entitlement to compensable disability ratings for scars of the bilateral wrists, and a statement of the case was issued in response to the issues currently on appeal as well as the increased ratings claims for scars of the bilateral wrists in October 2016. In his October 2016 substantive appeal to the Board, the Veteran’s representative indicated that, having read the pertinent statement of the case, the Veteran was only appealing the issues listed on the substantive appeal, and the Veteran’s representative did not list increased disability ratings for scars of the bilateral wrists on the substantive appeal. Therefore, the Board shall not address this issue any further. Entitlement to disability ratings in excess of 10 percent for bilateral elbow rheumatoid arthritis based on limitation of flexion of the bilateral elbows and entitlement to compensable disability ratings for bilateral elbow rheumatoid arthritis based on limitation of extension of the bilateral elbows prior to September 26, 2016 and in excess of 10 percent from September 26, 2016. At issue is whether the Veteran is entitled disability ratings in excess of 10 percent for limitation of flexion of the bilateral elbows and entitlement to compensable disability ratings for limitation of extension of the bilateral elbows prior to September 26, 2016 and in excess of 10 percent from September 26, 2016. Unfortunately, the Veteran is not entitled to increase disability ratings for his elbow disabilities. The Veteran first filed for service connection in August 1995, and was granted service connection, in an October 1995 rating decision, for rheumatoid arthritis of multiple joints and assigned a single disability rating of 20 percent effective the day after separation from service. In a September 2000 rating decision, the RO granted separate disability ratings for multiple joints including a disability rating of 10 percent for each elbow. The Veteran filed an increased rating claim in October 2013, and the RO denied the Veteran’s claim in June 2014. The Veteran appealed. The Veteran was assigned separate noncompensable disability ratings for limitation of extension of both elbows in an October 2016 rating decision. These noncompensable disability ratings were increased to 10 percent effective September 26, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s underlying condition is rheumatoid arthritis which is evaluated under Diagnostic Code 5002. Additionally, the Veteran is also eligible for ratings by analogy under Diagnostic Codes 5003 & 5205-5213 (normally associated with osteoarthritis) whichever is higher. For the purposes of Diagnostic Code 5002, which rates rheumatoid arthritis as an active process or based on chronic residuals for limitation of motion or ankylosis, the Board must take into consideration the combined rating of all of the Veteran’s disability ratings due to rheumatoid arthritis; which was at least 60 percent throughout the entire period on appeal. Therefore, rating as an active process under Diagnostic Code 5002 is not raised by the record, because the only higher disability rating under Diagnostic Code 5002 is a 100 percent disability rating which requires that the Veteran’s rheumatoid arthritis be totally incapacitating. The Veteran’s examinations and treatment records do not memorialize evidence that the Veteran has been totally incapacitated during the period on appeal, and, therefore, Diagnostic Code 5002 does not provide an adequate basis for an increased disability rating when the Veteran’s rheumatic arthritis is rated as an active process. Chronic residuals of rheumatoid arthritis, such as limitation of motion or ankylosis, are rated under the appropriate Diagnostic Codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. For the elbow and forearm, Diagnostic Codes 5205 (ankylosis), 5209 (impairment of flail joint), 5210 (nonunion of radius and ulna with flail joint) 5211 (nonunion/malunion of ulna), 5212 (nonunion/malunion of radius), and 5213 (impairment of supination and pronation) are not raised by the record, because the Veteran’s treatment records and examinations indicate that the Veteran has not manifested ankylosis, a flail joint, malunion or nonunion, or impairment of supination and pronation. 38 C.F.R. § 4.71a. Under Diagnostic Code 5206, a disability rating of 10 percent is assigned when the flexion of either elbow is limited to 100 degrees. A disability rating of 20 percent is assigned when the flexion of either elbow is limited to 90 degrees or the flexion of the non-dominant elbow is limited to 70 degrees. A disability rating of 30 percent is assigned when the flexion of the dominant elbow is limited to 70 degrees or the flexion of the non-dominant elbow is limited to 55 degrees, and a disability rating of 40 percent is assigned when the flexion of the dominant elbow is limited 55 degrees or the flexion of the non-dominant elbow is limited to 45 degrees; a disability rating of 50 percent is assigned when the flexion of the dominant elbow is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5207, a disability rating of 10 percent is assigned when extension of either elbow is limited to 45 degrees or 60 degrees. A disability rating of 20 percent is assigned when the extension of either elbow is limited to 75 degrees or extension of the non-dominant elbow is limited to 90 degrees. A disability rating of 30 percent is assigned when the extension of the dominant elbow is limited to 90 degrees or extension of the non-dominant elbow is limited to 100 degrees, and a disability rating of 40 percent is assigned when the extension of the dominant elbow is limited to 100 degrees or the extension of the non-dominant elbow is limited to 110 degrees; a disability rating of 50 percent is assigned when the extension of the dominant elbow is limited to 110 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Under Diagnostic Code 5208, a disability rating of 20 percent is assigned when the flexion of an elbow (either dominant or non-dominant) is limited to 100 degrees and the extension of that same elbow is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5208. The Veteran’s dominant elbow is the right elbow. The Veteran’s statements and treatment records indicate that the Veteran manifested elbow symptoms throughout the entire period on appeal. The Veteran underwent a VA examination in May 2014. He reported daily pain, but denied stiffness and swelling. The Veteran’s elbow flexion was measured to 140 degrees bilaterally, and elbow extension was measured to 20 degrees bilaterally. He was able to perform three repetitions of range of motion testing without additional loss of range of motion. The examiner opined that the Veteran manifested additional functional loss of the elbow with repeated use, with the additional functional loss as due to pain on movement. There was localized tenderness or pain on palpation. Muscle strength testing yielded normal results, and the Veteran was not diagnosed with ankylosis, flail joint, joint fracture, or impairment of supination or pronation. In an October 2016 substantive appeal to the Board, the Veteran’s representative indicated that the Veteran’s disability had increased in severity and requested a new VA examination. The Veteran underwent another VA examination in February 2017. He reported that he was losing range of motion in both his elbows. He also experienced pain and stiffness. The Veteran’s elbow flexion of was measured to 140 degrees bilaterally, and extension was measured to 20 degrees bilaterally. The examiner indicated that there was evidence of pain on weight bearing. The Veteran was able to perform three repetitions of range of motion testing without additional loss of range of motion. The examiner opined that the Veteran manifested additional functional loss of the elbow with repeated use, with the additional functional loss as due to pain. Muscle strength testing yielded normal results, and the Veteran was not diagnosed with ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The weight of the evidence indicates that the Veteran is not entitled to increased disability ratings for his elbow disabilities. In order to meet the criteria for a disability rating in excess of 10 percent for limitation of flexion of the either elbow, the Veteran needed to manifest flexion limited to at least 90 degrees in either elbow. In order to meet the criteria for an increased disability rating for limitation of extension in either elbow, the Veteran needed to manifest extension limited to at least 45 degrees before September 26, 2016 or extension limited to at least 75 degrees on or after September 26, 2016. Alternatively, in order to meet the criteria for an increased disability rating based on limitation of both extension and flexion, the Veteran needed to manifest flexion limited to 100 degrees and extension limited to 45 degrees. The Veteran’s extension and flexion were measured multiple times throughout the period on appeal, and the Veteran never met the requirements for increased disability ratings based on limitation of motion of either elbow. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. Even after taking the possibility of additional functional impairment into consideration, the Veteran is not entitled to an increased disability rating or ratings. The Board notes that two VA examiners both indicated that the Veteran manifested additional functional impairment. Nevertheless, the VA examiners both indicated that the Veteran’s additional functional impairment was characterized by pain, and, as previously noted, pain does not constitute an adequate ground for an increased disability rating. See Mitchell. Moreover, the Veteran was able to perform three repetitions of range of motion testing without additional loss of range of motion, and muscle strength testing yielded normal results. Therefore, additional functional impairment does not provide an adequate basis for an increased disability rating or ratings. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to increased disability ratings for his elbow disabilities. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to increased disability ratings for the Veteran’s elbow disabilities is denied. REASONS FOR REMAND 1. Entitlement to service connection for an eye disorder is remanded. The Veteran contends that he is entitled to service connection for an eye disorder. The Veteran’s claim was originally denied because his medical records did not memorialize a current diagnosis of an eye condition. Treatment records subsequently associated with the claims file, however, indicate that the Veteran has been diagnosed with multiple eye conditions. Moreover, the Veteran’s substantive appeal to the Board claims that the Veteran’s current eye conditions were the result of medications that the Veteran has been prescribed for his service-connected rheumatoid arthritis. This is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a current VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to disability ratings in excess of 10 percent for bilateral knee rheumatic arthritis, bilateral ankle rheumatic arthritis, and bilateral wrist degenerative arthritis are remanded. The Veteran contends that he is entitled to increased disability ratings for his bilateral knee conditions, bilateral ankle conditions, and bilateral wrist conditions. In June 2014, the Veteran last underwent a VA examination evaluating these conditions. In an October 2016 substantive appeal to the Board, the Veteran’s representative indicated that the Veteran’s conditions had increased in severity and requested a new VA examination. This is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a current VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to TDIU The issue of entitlement to TDIU was raised in VA examinations conducted in May 2014 and in , which indicated that the Veteran’s bilateral elbow conditions limited the Veteran’s ability to secure and maintain substantially gainful employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is inextricably intertwined with the above issues, and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Copies of updated pertinent treatment records should be obtained and added to the claims file. 2. Send the Veteran and request he complete and return a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 3. Following completion of the development requested above, arrange to provide the Veteran with a VA examination in order to answer the following question: Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s eye disorders are proximately due to or aggravated by the Veteran’s service-connected disabilities, to include as a result of medication prescribed to treat the service-connected disabilities? Why or why not? 4. Arrange to provide the Veteran with a VA examination to evaluate the current severity of the Veteran’s bilateral knee rheumatoid arthritis. 5. Arrange to provide the Veteran with a VA examination to evaluate the current severity of the Veteran’s bilateral ankle rheumatoid arthritis. 6. Arrange to provide the Veteran with a VA examination in order to evaluate the current severity of the Veteran’s bilateral wrist degenerative arthritis. 7. Arrange to provide the Veteran with a VA examination so that the examiner can comment on functional (CONTINUED ON NEXT PAGE) impairment caused solely by the Veteran’s service-connected disabilities. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel