Citation Nr: 18155749 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-24 674A DATE: December 6, 2018 ORDER Entitlement to service connection for a stomach condition claimed as irritable bowel syndrome is denied. Entitlement to a rating in excess of 20 percent for a right elbow disability with deformity of the proximal radius with missing radial head is denied. Entitlement to a rating in excess of 10 percent prior to May 8, 2017 and in excess of 20 percent thereafter for a right elbow disability with limitation of supination and pronation is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a psychiatric disability secondary to a right elbow disability is granted. Entitlement to service connection for sleep apnea on the basis of aggravation is granted. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosed stomach condition to include irritable bowel syndrome. 2. The evidence does not show that the right elbow disability with deformity of the proximal radius with missing radial head is manifested by a flail joint or any other elbow impairment which would warrant greater than a 20 percent. 3. The evidence of record does not show that the Veteran’s right elbow disability with limitation of supination and pronation was manifested by limitation of pronation with motion lost beyond the last quarter arc prior to May 8, 2017, of manifest by limitation of pronation beyond the middle arc thereafter. CONCLUSIONS OF LAW 1. The criteria for service connection for irritable bowel syndrome are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a rating greater than a 20 percent for the right elbow disability with deformity of the proximal radius with missing radial head have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5205, 5206, 5207, 5208, 5209, 5212. 3. The criteria for a rating greater than 10 percent prior to May 8, 2017 and in excess of 20 percent thereafter for a right elbow disability with limitation of supination and pronation have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to November 1988, and from February 1991 to March 1991. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran claims that he has a stomach condition that was caused by service. His service treatment records do not show the diagnosis of, or repeated treatment for any a chronic stomach condition. The Veteran’s VA treatment records do not show any diagnoses of a stomach condition to include IBS. The Veteran has not submitted any medical evidence supporting his assertion that he has a diagnosis of IBS, or any other stomach condition. In August 2012, the Veteran was provided with a VA examination to investigate his claim of IBS. The examiner reviewed the claims file noting that the Veteran had only one documented episode of diarrhea and upset stomach, but this preceded any Persian Gulf deployment. The Veteran described having diarrhea and constipation, and he described some vague symptoms, but was unable to be more specific upon questioning by the examiner. The examiner noted that the Veteran had never been diagnosed with any intestinal conditions. The examiner also noted the Veteran was inconsistent with his reports. Ultimately, the examiner concluded that he was unable to diagnose the Veteran with IBS. As described, the record does not show any current diagnosis of a stomach condition to include IBS. Initially, the threshold consideration for any service connection claim is the existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, while the Veteran has voiced complaints of a stomach condition, there is no evidence in the record to show that he has a chronic stomach condition to include IBS. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has a current stomach disability to include IBS. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a stomach disability is denied. Increased Ratings The Veteran is seeking a higher rating for his right elbow disability. The Veteran currently receives multiple ratings for his right arm, including a 20 percent rating for a right elbow disability with deformity of the proximal radius with missing radial head, and a 10 percent rating prior to May 8, 2017 and in excess of 20 percent thereafter for a right elbow disability with limitation of supination and pronation. The Veteran has also been assigned a separate rating for neurologic impairment in the arm which is not on appeal. Rating schedules for the elbow as follows are listed under Diagnostic Code 5205 pertains to ankylosis of the elbow, however as the Veteran has not been diagnosed with ankylosis therefore this Diagnostic Code is not applicable. Diagnostic Code 5206 concerns limitation of forearm flexion. Limitation of flexion of the forearm is rated 0 percent when limited to 110 degrees for both the dominant and minor arm; 10 percent when limited to 100 degrees for both arms, 20 percent when limited to 90 degrees for both arms, 30 percent when limited to 70 degrees for the major arm, 40 percent when limited to 55 degrees for the major arm, and 50 percent when limited to 45 degrees for the major arm. 38 C.F.R. § 4.71, Diagnostic Code 5206. Diagnostic Code 5207 concerns limitation of forearm extension. Limitation of extension of the forearm is rated 10 percent when limited to 45 and 60 degrees for both arms, 20 percent when limited to 75 degrees for both arms, 30 percent when limited to 90 degrees for the major, 40 percent when limited to 100 degrees for the major am, 50 percent when limited to 110 degrees for the major arm. Under Diagnostic Code 5208 limitation of forearm flexion to 100 degrees with extension to 45 degrees in the minor and major arm warrants a 20 percent evaluation. Under Diagnostic Code 5209 joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, warrants a 20 percent rating for the major and minor arm and other impairment of flail joint warrants a 60 percent rating for the major arm. Under Diagnostic Code 5210 nonunion of the radius and ulna with flail false joint and Diagnostic Code 5211 for impairment of the ulna are not applicable as the Veteran elbow has not been diagnosed with impairment of ulna or flail false joint. Under Diagnostic Code 5212 impairment of the radius with malunion and bad alignment warrants a 10 percent rating for both arms; with nonunion in upper half warrants a 20 percent rating for both arms; without loss of bone substance or deformity warrants a 30 percent disability evaluation for the major arm; with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent evaluation for the major arm. Under Diagnostic Code 5213, limitation of supination of the major arm to 30 degrees or less warrants a 10 percent rating; limitation of pronation of the minor arm with motion lost beyond last quarter of arc for both arms, the hand does not approach full pronation, warrants a 20 percent rating for both arms; with motion lost beyond middle of arc warrants a 30 percent rating for the major arm; and with the hand fixed near the middle of the arc moderate pronation of the arm warrants a 20 percent rating for both arms, with the hand fixed in full pronation in the minor major arm and 20 percent for the minor arm, and with the hand fixed in supination or hyperpronation warrants a 40 percent rating for the major arm. Under 38 C.F.R. § 4.71a, Plate I (2015), normal flexion of the elbow is 0 to 145 degrees, normal forearm pronation is 0 to 80 degrees, and normal forearm supination is 0 to 80 degrees. Normal extension and flexion of the elbow is from 0 to 145 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran’s right elbow disability is currently rated under two separate Diagnostic Codes. A 20 percent under Diagnostic Code 5209 for deformity of the proximal radius with missing radial head, and a 10 percent rating prior the May 8, 2017, and 20 percent thereafter for limitation of supination or pronation under Diagnostic Code 5213. The Veteran’s dominate appendage is shown by the record to be his right arm. 38 C.F.R. § 4.69. Therefore, the service-connected right elbow is of the major appendage and the disabilities will be rated using the criteria for rating disabilities of the major upper extremity. An October 2011 VA examination report shows that the Veteran was wearing a right arm sling but the Veteran acknowledged that it had not been prescribed by a medical provider but was his own idea. The examiner noted that right elbow x-rays taken in May 2011 showed the right elbow had moderate degenerative changes involving the olecranon humeral portion of the elbow joint with loss of joint space osteophytosis, and the radial head was not present with the proximal portion of the radius. The Veteran reported that his right elbow was in constant pain with pain worse with various movements which caused restricted movement. The Veteran reported that his right elbow disability had flare-ups with cold and raining weather and consisted of increased pain. Examination of the right elbow range of motion showed flexion 20 to 100 degrees, as the Veteran’s elbow lacked the last 20 degrees of full extension due to increased pain. Pronation and supination were measured 0 to 20 degrees. Repetitive use testing showed results as forward flexion of the elbow 30 to 110 degrees, 0 to 20 degrees for pronation and supination. The examiner did note that after formal examination the Veteran put his hand in lap with full pronation, in other words the Veteran was able to pronate to 90 degrees. The examiner remarked that the Veteran displayed symptom magnification and range of motion of supination could not be determined without resorting to mere speculation due to inconsistencies by the Veteran. A review of the VA treatment records from 2011 to 2017 shows that the Veteran reported right elbow pain. Range of motion problems were not reported by the Veteran or treated by the medical providers. A May 2017 VA examination report shows that the Veteran was diagnosed with a fractured right elbow with degenerative joint disease and limitation of supination, and fracture of the right elbow with degenerative joint disease and deformity of the proximal radius with missing radial head. The Veteran reported that his right elbow was in constant pain and worsened with the passage of time. The Veteran did not report flare-ups of the elbow disability. No reports of functional impairment of the right elbow were reported by the Veteran. Range of motion of the right elbow were noted as flexion from 10 to 120 degrees; extension from 120 to 10 degrees; forearm supination 0 to 70 degrees; and forearm pronation 0 to 60 degrees. Pain was noted on the examination that caused some functional loss and reduced range of motion. No pain with weight bearing was noted. No pain on palpation of the joint were noted. No crepitus was noted. Repetitive use testing was performed with no reduced range of motion or functional loss. Pain, weakness, fatigability or incoordination were not noted to significantly limit the functional ability of the right elbow. The right elbow showed normal muscle strength for flexion and extension with no reduction in muscle strength. No ankylosis was shown. The examiner reported that the Veteran did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation was shown. The examiner opined that the Veteran’s elbow would not be equally well served by amputation with prosthesis due to functional impairment of the disability. The examiner remarked that active and passive range of motion with weight bearing and non-weight bearing were conducted. As it relates to the right elbow, the Board finds that higher or separate ratings are not warranted under Diagnostic Code 5206 for limitation of flexion or Diagnostic Code 5207 for limitation of extension as at no time was the Veteran’s right elbow limited in flexion to at least 110 degrees or extension limited to 45 degrees as noted during the 2017 VA examination. Thus, the Veteran is not entitled to a higher rating for his right elbow disability under either Diagnostic Code 5206 or Diagnostic Code 5207. There is no evidence of flexion of the forearm limited to 100 degrees and extension to 45 degrees to warrant a 20 percent rating under Diagnostic Code 5208. 38 C.F.R. § 4.71a, Diagnostic Code 5208. Under Diagnostic Code 5209, the Veteran has a current rating of 20 percent for joint fracture affecting the head of the radius. The next higher rating of 60 percent is only warranted if the Veteran was diagnosed with a flail joint which the evidence does not show. Thus, the Veteran is not entitled to a higher rating for his right elbow disability under Diagnostic Codes 5208 and 5209. Regarding whether the Veteran’s right elbow warrants a rating in excess of 10 percent prior to May 8, 2017 under Diagnostic Code 5213, a higher rating is not warranted. The October 2011 VA examination report shows the Veteran displayed supination limited to 20 degrees but was able to achieve full pronation to 90 degrees. As the Veteran’s was not limited in any regard with regard to pronation a higher rating is not warranted prior the May 8, 2017, thus a higher rating in excess of 10 percent under Diagnostic Code 5213 is not warranted prior to May 8, 2017. As of May 8, 2017, the Veteran’s right elbow disability has a rating of 20 percent under Diagnostic Code 5213 for limitation of pronation to motion lost beyond the last quarter of the arc, but hand not approaching full pronation. Here, as noted in the May 2017 VA examination, he achieved pronation to 60 degrees which is beyond the last quarter of arc. In order to warrant the next higher rating, limitation of pronation must be lost beyond the middle arc of 40 degrees which was not shown. Additionally, the right hand has not been shown to be in any fixed positions. Thus, the Veteran is not entitled to a higher rating for his right elbow disability under Diagnostic Code 5213. Further, in considering the applicability of other diagnostic codes, Diagnostic Codes 5205 (ankylosis of the elbow), 5210 (nonunion of the radius and ulna, with flail false joint), 5211 (impairment of the ulna), and 5212 (impairment of the radius) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. While the Board is sympathetic to the Veteran’s reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the right elbow being limited in motion to the extent required for higher ratings for limitation of flexion or extension of the right elbow. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board recognizes the Veteran’s contentions as to the severity of his right elbow disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). However, as a layperson, the Veteran is not competent to provide an opinion requiring medical knowledge, such as whether the current symptoms satisfy diagnostic criteria. King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Here, the claims file is replete with references to malingering, and overreporting/symptom magnification, and the Veteran has been found to be a poor historian. As a result, his assertions do not constitute competent medical evidence in support of increased ratings for the right elbow disability under the applicable Diagnostic Codes. As described, the evidence of record does not support a higher rating for the Veteran’s right arm disabilities and his claim is denied. REASONS FOR REMAND The Veteran is seeking service connection for a psychiatric disability either as secondary to his right elbow disability or as a result of his military service. An October 2016 Disability Benefits Questionnaire (DBQ) completed by a private psychologist diagnosed the Veteran with a major depressive disorder. The examiner noted that the Veteran’s service connected right elbow disability with degenerative joint diseases and limitation of supination manifested as major depressive disorder. The private psychologist opined that the fractured right elbow with degenerative joint disease and deformity have caused the major depressive disorder due to causing the Veteran’s inability to work and incapacitation. She later amended her opinion to add that the Veteran’s acquired psychiatric disability began during service, pointing to his report of nervous trouble on a medical history survey. However, this opinion made no mention of the Veteran’s non-service connected back disability which resulted from an on the job injury in approximately 2011. This injury has prevented the Veteran from working, and its omission from the medical opinion demands further inquiry. The Veteran is also seeking service connection for sleep apnea which he has argued was aggravated by his acquired psychiatric disability. A review of the Veteran’s service treatment records shows no reports or complaints of a sleep apnea and the Veteran was first diagnosed with sleep apnea in 2011, which is many years after separation from service. In a January 2017 private DBQ, Dr. Skaggs opined that the Veteran’s psychiatric disability permanently aggravated his obstructive sleep apnea. The doctor referenced medical literature to support the finding and rationale that the psychiatric disability aggravates his sleep apnea. However, the doctor did not identify any baseline for the sleep apnea prior to the aggravation occurring, and VA regulations provide that VA will not concede that a nonservice connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Additionally, as the Veteran’s acquired psychiatric disability is not service connected at this time, this issue is considered inextricably intertwined with the psychiatric remand. The Board notes that the Veteran has not been provided a VA examination concerning his claim for bilateral hearing loss. The Board notes that during his first treatment for bilateral hearing loss with VA in 2011, he reported he had tinnitus and hearing loss since separation from service in 1991 due to sounds of gun fire, mortars, grenades, and .50 caliber machine gun fire. The Veteran was diagnosed with sensorineural hearing loss. The Board finds that a VA examination concerning the Veteran’s claim is warranted to determine the etiology of the bilateral hearing loss disability. The Board also finds that the issue of entitlement to TDIU is intertwined with the remanded issues. Thus, the latter must be fully decided prior to adjudication of the Veteran’s claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the etiology of his bilateral hearing loss disability. Based upon the examination results and the review of the Veteran’s pertinent medical history, the examiner should opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran’s bilateral hearing loss originated during service, or is otherwise etiologically related to any in-service disease, event, or injury. Why or why not? 2. Schedule the Veteran for a psychiatric examination. The examiner should diagnose any current acquired psychiatric disability, to include PTSD, and then answer the following questions: a) Is it at least as likely as not (50 percent or greater) that the acquired psychiatric disability either began during or was otherwise caused by his military service? Why or why not? In answering this question, the examiner should address the Veteran’s noting nervous trouble on a medical history survey completed in 1991. b) If PTSD is diagnosed, the examiner should identify the stressor that supported the diagnosis, including whether it was the result of fear of hostile military or terrorist activity. c) Is it at least as likely as not (50 percent or greater) that the Veteran’s acquired psychiatric disability was caused by his right upper extremity disabilities? Why or why not? In addressing this question, the examiner should discuss the opinion (contained in the May 1, 2018 Appellate Brief) of Dr. Henderson-Galligan who opined that the Veteran’s acquired psychiatric disability was the result of his right upper extremity disability, and may have begun in service. The examiner should also discuss the relevance, if any, of the Veteran’s non-service connected back disability on his acquired psychiatric disability. d) Is it at least as likely as not (50 percent or greater) that the acquired psychiatric disability was aggravated by his right upper extremity disabilities? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the acquired psychiatric disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the acquired psychiatric disability. If such cannot be done, it should be explained why. 3. Obtain a medical opinion to address the etiology of the Veteran’s sleep apnea. If the Board’s questions cannot be answered without a physical examination, one should be scheduled. The examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea was caused by his acquired psychiatric disability? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea was aggravated (made worse) by his acquired psychiatric disability? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. If such cannot be done, it should be explained why. The examiner should also address the medical opinion of Dr. Skaggs (contained in the May 1, 2018 Appellate Brief). 4. Then, readjudicate the claims, to include TDIU. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel