Citation Nr: 18158489 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-00 160 DATE: December 17, 2018 ORDER 1. Entitlement to service connection for a left hip disability is denied. 2. Entitlement to service connection for a right hip disability is denied. 3. Entitlement to a compensable rating for right elbow bursitis is denied. REMANDED 4. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. 5. Entitlement to a rating in excess of 10 percent for lumbosacral strain is remanded. 6. Entitlement to a rating in excess of 30 percent for major depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have a left hip disability. 2. The Veteran is not shown to have a right hip disability. 3. The Veteran has full range of motion of the right elbow; limitation of motion due to pain is not shown. CONCLUSIONS OF LAW 1. Service connection for a left hip disability is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. Service connection for a right hip disability is not warranted. 8 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. A compensable rating for right elbow bursitis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (Codes) 5206, 5207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 2006 to April 2010. These matters are before the Board of Veterans' Appeals (the Board) on appeal from November 2015 and January 2016 rating decisions. The Veteran's service treatment records (STRs) are silent for complaints or findings concerning either hip. In a January 2010 report of medical history, he denied bone or joint deformity. On January 2010 service separation examination, the lower extremities and musculoskeletal system were normal. On November 2015 elbow examination, the Veteran reported recurrent catching in the right elbow. It was most noticeable when he drove with his right arm outstretched for a long time; it was noted that he is right-handed. Examination found flexion to 145 degrees; extension to 0 degrees; supination to 85 degrees; and pronation 80 degrees. The examiner stated that right elbow range of motion was normal. Pain was not noted on examination. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. It was noted that pain significantly limited functional ability during flare-ups. There was palpable flattening of the posterior surface of the olecranon process of right elbow. Muscle strength testing in the right upper extremity was 5/5. There was no muscle atrophy or ankylosis, and no erythema or bursal swelling of right elbow. Tinel’s sign was negative. There was no tenderness of the epicondyle or olecranon on examination. The Veteran was unable to rest his elbow on the desktop. The diagnosis was right olecranon bursitis. Service Connection 1. Service connection for a left hip disability is denied. 2. Service connection for a right hip disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Secondary service connection is warranted for disability that has been caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran's STRs are silent for complaints or findings of a hip disability. He did not report problems involving the hips in history at service discharge, and the January 2010 service separation examination found the lower extremities and musculoskeletal system to be normal. The Veteran has not submitted any medical evidence showing that he has a current disability involving either hip (that may be related to service). Service connection is limited to those cases where disease or injury in service has resulted in a current (shown during the pendency of the claim) chronic disability; See McLain v. Nicholson, 21 Vet. App. 319 (2007). In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran has stated that he received treatment for hip symptoms in service, such report is inconsistent with his January 2010 report of medical history and examination at that time. He has also stated that he has a bilateral hip disability that is related to complaints involving the lower extremities in service. Service connection has been established for a bilateral knee strain; however, the record does not show that during the pendency of the instant claim the Veteran has/had a right or left hip disability (caused or aggravated by his service connected knee disabilities). There is no basis, therefore for a grant of service connection on either a direct or secondary basis. Accordingly, the threshold requirement for substantiating a claim of service connection for such disability is not met, and the appeals in these matters must be denied. Increased rating 3. Entitlement to a compensable rating for right elbow bursitis is denied Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal is from the initial rating assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Under Code 5019, bursitis is rated as arthritis based on limitation of motion of the affected part. Under Code 5206, a 50 percent rating is warranted for limitation of flexion of the forearm of the major extremity to 45 degrees. A 40 percent evaluation may be assigned when flexion is limited to 55. A 30 percent evaluation is warranted when flexion is limited to 70 degrees. A 20 percent evaluation is warranted when flexion is limited to 90 degrees. When flexion is limited to 100 degrees, a 10 percent evaluation may be assigned. A noncompensable evaluation is warranted when flexion of the forearm is limited to 110 degrees. Under Code 5207, a 50 percent rating is warranted for limitation of extension of the forearm of the major extremity to 110 degrees. A 40 percent evaluation is warranted when extension is limited to 100 degrees. A 30 percent evaluation is warranted when extension is limited to 90 degrees. A 20 percent evaluation is warranted when extension is limited to 75 degrees. When extension is limited to 60 degrees or to 45 degrees, a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As noted above, to warrant a compensable rating for the Veteran's service-connected right elbow bursitis, the evidence must show that he has limitation of motion in flexion or extension. The November 2015 VA examination conducted in connection with this claim found that he has full range of right elbow motion, with no evidence of pain with motion (so as to warrant a 10 percent rating by analogy to Code 5003, for arthritis, or under 38 C.F.R. § 4.59. While he reported pain during flare-ups, in the absence of any limitation of motion due to pain, a compensable rating is not warranted. The preponderance of the evidence is against a compensable rating for right elbow bursitis; accordingly, the appeal in this matter must be denied. REASONS FOR REMAND 4. Entitlement to service connection for residuals of a TBI. The Veteran's STRs show that in April 2008 he was subjected to an improvised explosive device (IED) blast. It was reported that he had a headache. There was no tinnitus, nausea, vomiting, lightheadedness, dizziness, confusion or disorientation, difficulty keeping balanced, or decreased in concentration ability. The assessment was acoustic trauma (explosive). In a January 2010 report of medical history, he denied a head injury, amnesia, memory loss, dizziness and headaches. On the January 2010 service separation examination, a neurological examination was normal. On November 2015 VA TBI examination, the Veteran reported he experienced one explosion in service in which he was dazed. It was noted that he did not have any subjective symptoms of a mental, physical or neurological condition or residuals attributable to a TBI. The examiner stated that there was no documentation for a TBI or residuals. VA outpatient treatment records show that in June 2016, the Veteran was afforded a second level TBI evaluation. He reported exposure to numerous blasts. He said he had multiple episodes of being dazed, but did not recall ever being unconscious. He stated that he had significant headaches, especially after the April 2008 incident. It was noted that his major issues were insomnia, poor focusing and concentration, irritability and anxiety. The examiner opined that based on the history of the injury and the course of clinical symptoms, the Veteran sustained a TBI during his deployment. The conflicting findings noted above must be reconciled. 5. Entitlement to a rating in excess of 10 percent for lumbosacral strain. 6. A rating in excess of 30 percent for major depressive disorder. VA outpatient treatment records show that in December 2016 there was tenderness in the paraspinal region. In March and October 2017, the Veteran was seen for his psychiatric disability. He states that these disabilities have increased in severity since his most recent VA examinations in November 2015. Contemporaneous examinations to assess the disabilities are necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the providers of all evaluations and treatment he has received for residuals of a TBI since his discharge from service and for major depressive disorder and lumbosacral strain since 2016, and to submit authorizations for VA to secure records of any such private evaluations or treatment. Secure for the record all outstanding records of the evaluations and treatment from all providers identified 2. Then arrange for a neurological examination of the Veteran to confirm the presence and nature of any TBI residuals he may have. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On examination of the Veteran and review of his record, the examiner should indicate whether the Veteran at least as likely as not has any current symptom, pathology, or impairment that is a residual of TBI in service (if so, identify the residuals). The examiner must include rationale with all opinions. The rationale should express agreement or disagreement with the November 2015 and June 2016 VA TBI examiners’ reports, reconciling their conclusions. 3. Arrange for a psychiatric examination of the Veteran to assess the severity of his major depressive disorder. The Veteran’s record must be reviewed by the examiner. The nature and severity of all psychiatric symptoms must be described in detail, and the examiner should comment on their impact on social and (in particular) occupational functioning, and include rationale with all opinions. 4. Arrange for an orthopedic examination of the Veteran to assess the severity of his low back disability. The Veteran’s record should be reviewed by the examiner. All findings and related functional impairment should be described in detail. Any indicated studies should be completed (to include range of motion studies of the low back, with notation of additional functional limitations due to factors such as weakness, pain, incoordination, weight-bearing, fatigue, use, etc.). The examiner should comment on any restrictions on occupational and daily activity functions due to the disabilities. The examiner must include rationale with all opinions GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel