Citation Nr: 1808334 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-29 245 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right (major) elbow epicondylitis with degenerative arthritis. 2. Entitlement to an initial rating in excess of 10 percent for left (minor) elbow epicondylitis with degenerative arthritis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1972 to August 1976 and September 1990 to April 1991. He also served a period of active duty for training from January to May 1987 and had several additional years of inactive service with the Rhode Island Army National Guard/Army Reserve.. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a decision issued in June 2015, the Board awarded the Veteran initial increased 10 percent ratings for the right and left elbow disabilities prior to August 22, 2012 and denied initial ratings in excess of 10 percent throughout the appeal period. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Court issued an order that vacated the June 2015 portion of the Board decision that denied initial ratings in excess of 10 percent for right and left elbow disabilities and remanded the matter for readjudication consistent with the instructions outlined in the April 2016 Joint Motion of the Parties. In June 2016 and May 2017, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran's service-connected left elbow epicondylitis with degenerative arthritis has been manifested by pain and, at most, limitation of flexion to 130 degrees and limitation of extension to 10 degrees. 2. The Veteran's service-connected right elbow epicondylitis with degenerative arthritis has been manifested by pain and, at most, limitation of flexion to 130 degrees and limitation of extension to 10 degrees. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 10 percent for left elbow epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5206, 5207, 5208, 5209-5213 (2017). 2. The criteria for an initial rating in excess of 10 percent for right elbow epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5206, 5207, 5208, 5209-5213 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes (DC). Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. The Veteran's service-connected bilateral epicondylitis with degenerative arthritis of the elbows has been evaluated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5206, relating to limitation of flexion of the elbow. Pursuant to Diagnostic Code 5206, a 10 percent rating is warranted where flexion of either elbow is limited to 100 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. A 20 percent rating is warranted where flexion of either elbow is limited to 90 degrees, or where flexion of the minor elbow is limited to 70 degrees. A 30 percent rating is warranted where flexion of the major elbow is limited to 70 degrees, or where flexion of the minor elbow is limited to 55 degrees. A 40 percent rating is warranted where flexion of the major elbow is limited to 55 degrees, or where flexion of the minor elbow is limited to 45 degrees. A maximum 50 percent rating is warranted where flexion of the major elbow is limited to 45 degrees. Id. Pursuant to Diagnostic Code 5207, a 10 percent rating is warranted where extension of either elbow is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. A 20 percent rating is warranted where extension of either elbow is limited to 75 degrees, or extension of the minor elbow is limited to 90 degrees. A 30 percent rating is warranted where extension of the major elbow is limited to 90 degrees, or where extension of the minor elbow is limited to 100 degrees. A 40 percent rating is warranted where extension of the major elbow is limited to 100 degrees, or where extension of the minor elbow is limited to 110 degrees. A maximum 50 percent rating is warranted where extension of the major elbow is limited to 110 degrees. Id. Entitlement to service connection for bilateral epicondylitis of the elbows was established in a September 2010 and assigned a noncompensable rating using DC 5206. In August 2012, a 10 percent rating was assigned using Diagnostic Code 5003. In August 2016, the code was changed to 5003-5206. It is noted that hyphenated codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Normal range of motion of the elbow is from zero degrees of extension to 145 degrees of flexion. Forearm pronation is from zero to 80 degrees, and forearm supination is from zero to 85 degrees. 38 C.F.R. § 4.71a, Plate I. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran contends that his disability is more severe than the 10 percent rating depicts. See Appellate Brief entered in Caseflow Reader in May 2016. In July 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral elbow condition. The examiner reviewed the claims file and performed an in-person examination. The Veteran stated that while at OBC, he experienced bilateral elbow pain which he related to carrying briefcase and doing PT. He was diagnosed with tennis elbow. The Veteran did not have a history of hospitalization, neoplasm, or trauma to the joints. The examiner noted that bilaterally, the Veteran's elbows were not deformed. The Veteran did not experience giving way, instability, stiffness, decreased speed of joint motion, episodes of dislocation or subluxation, locking effusions, or other symptoms. The Veteran's right elbow did not experience incoordination but the condition affected the motion of the joint. However bilaterally, the Veteran experienced pain, swelling, tenderness, weakness and flare-ups of the joint. The flare-ups were mild, occurred two-to-three times a week, and lasted for one to two days. The flare-ups occurred when the Veteran carried anything heavy or increased repetitive use. The Veteran stated that ice, rest, and NSAIDS alleviated the pain. Regarding loss of motion during flare-ups, the Veteran stated that depending on the severity, he can work through the pain; however, when the pain was more severe, he rested his elbows or treated them with ice and NSAIDS. The examiner found both elbows to be normal. Regarding range of motion (ROM) both elbows had flexion from zero to 130 degrees, extension from to zero, pronation from zero to 85 and supination from zero to 80. There was no objective evidence of pain with active motion, following repetitive motion, or after three repetitions of ROM. The Veteran did not have ankylosis and his condition did not have a significant effect on his usual occupation. His condition also did not have an effect on daily activities such as shopping, traveling, feeding, bathing, dressing, toileting, grooming, or driving. However, the condition had a mild effect on the Veteran when he was performing chores, exercising, and engaging in sports and recreation. The examiner diagnosed the Veteran with bilateral elbow recurrent epicondylitis. In August 2012, the Veteran was afforded a VA examination to determine the severity of his bilateral elbow disability. The Veteran stated that he had increased pain during the winter, i.e., when shoveling snow. He had pain with repetitive heavy movement. To alleviate the pain, he used ice and rested. In the past, he used tennis elbow straps. He had not had cortisone injections or PT. The examiner noted that the Veteran is right hand dominant. The Veteran stated that flare-ups were rare, but he did experience flare-ups during the winter. The Veteran experienced bilateral localized tenderness or pain on palpation of the joints/soft tissue. He did not experience functional loss in his left upper extremity. The Veteran's bilateral muscle strength was normal. He did not have ankylosis, flail joint fracture and/or impairment of supination or pronation, total elbow joint replacement or arthroscopic or other elbow surgery or scars related to his condition or to the treatment of his condition. The examiner noted that the Veteran had other pertinent physical findings related to his condition, i.e., positive trigger points bilateral medial and lateral epicondyle. The examiner noted flexion for the left to 140 and right was to 120. Bilateral extension was to zero. There was no objective evidence of painful motion. After repetitive use testing with three repetitions, bilateral flexion was to 120, and extension to zero. The Veteran had additional limitation in ROM of the elbow and forearm following repetitive use testing. Additionally, the Veteran had functional loss and/or functional impairment of his elbow and forearm. Imaging showed degenerative changes but no fractures or effusion. The left elbow had minimal spurring along the trochlear notch and at the triceps insertion of the olecranon. The right elbow had prominent olecranon spur at the triceps insertion and a small spur along the medial humeral epicondyle. The examiner noted that the Veteran's elbow/forearm condition did not impact his ability to work. The examiner diagnosed the Veteran with degenerative changes in both elbows. In the April 2016 Court decision, the Court determined that the April 2012 exam was inadequate. In June 2016, the Board remanded the claims to obtain a new VA examination. In June 2016, the Veteran was afforded a VA examination to determine the severity of his bilateral elbow disability. The examiner reviewed the claims file and performed an in-person examination. The Veteran stated that most days, the pain in his elbows was from 3/10 to 8/10. The pain got worse when the Veteran painted or shoveled snow. The Veteran stated that stretching exercises, icing the elbows, or taking ibuprofen alleviated the symptoms. He stated that he worked as security officer, so he did not have to lift objects. The examiner noted that the Veteran was right hand dominant. The Veteran's flexion in his left elbow was from 10 to 130 and right was from 10 to120; left extension was from 130 to 10 and right was from 120 to10; and forearm supination and pronation was from zero to 65. The Veteran's initial ROM was noted as being abnormal and contributed to functional loss, i.e., pain when lifting and pulling objects. Pain was noted on flexion, extension, and forearm supination, and pronation. There was also evidence of crepitus, pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the joint, i.e., tenderness at base of elbow. The Veteran experienced additional functional loss or range of motion after three repetitions due to pain, fatigue, weakness, lack of endurance, and incoordination. After repetitive use, the Veteran's flexion in his left elbow was from 10 to 130 and right was from 10 to120; left extension was from 130 to 10 and right was from 120 to10; and forearm supination and pronation was from zero to 65. The Veteran was not examined immediately after repetitive use over time nor was the exam conducted during a flare-up. The examiner stated that it would be impossible without resorting to mere speculation to indicate any additional ROM loss, pain, weakness, and fatigability compared to the VA examination findings, during a flare-up or over a period of time. The examiner noted that the elbows experienced disturbance of locomotion. Muscle strength was normal, and there was no muscle atrophy or reduction in muscle strength. The Veteran did not have scars related to any conditions or to the treatment of his elbow condition, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. However, the Veteran had bilateral bony protuberances. The Veteran occasionally wore a brace. The examiner noted "no" when asked if due to the Veteran's elbow conditions, if there was functional impairment of an extremity such that no effective functions remains other than that which would be equally well served by an amputation with prosthesis. Regarding functional loss and impact, the Veteran stated that he experienced pain when lifting and moving objects with forearms. The examiner diagnosed the Veteran with bilateral degenerative arthritis. The Veteran also had bilateral elbow bone spurs. In May 2017, the RO obtained an addendum opinion. Referencing the June 2016 VA examination and why it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time, the examiner stated that the Veteran was not being examined immediately after repetitive use over time. Additionally, the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time. The physical examination was performed in a clinical environment and not in the Veteran's typical work or school environment, where he reports his symptoms are exacerbated. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for bilateral elbow epicondylitis is not warranted. In order to receive a rating of 20 percent or more, flexion must be limited to 90 degrees, or extension must be limited to 75 degrees, or flexion must be limited to 100 degrees at the same time that extension is limited to 20 degrees. At worse, the limitation of motion caused by the Veteran's service-connected left elbow disability has been to 130 and his right elbow has been to 120 and limitation of elbow extension to 10 degrees, bilaterally. Based on the foregoing, the Board finds that the limitation of motion caused by the Veteran's bilateral elbow epicondylitis with degenerative arthritis warrants a non-compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207. Nevertheless, the Board will not disturb the already assigned 10 percent disability ratings based on limitation of motion with complaints of pain as of March 19, 2010. In making this determination, the Board has considered whether there is any additional functional loss not contemplated by the non-compensable ratings assigned. See 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2017); see also Deluca, 8 Vet. App. at 206; Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). The Veteran's bilateral elbow disability has resulted in pain due to degenerative changes and non-compensable limitation of motion. Although the Veteran reported pain, it caused little functional impairment in terms of range of motion. See Mitchell, 25 Vet. App. at 33. Accordingly, the Board finds that a compensable rating is not warranted based on additional functional loss. Id. The Veteran's bilateral elbow disability has resulted pain when lifting and pulling objects and non-compensable limitation of motion. After three repetitions, the examiner noted additional function loss due to pain, fatigue, weakness, lack of endurance, and incoordination. However, the limitation of motion caused by the Veteran's service-connected left elbow disability has been to 130 and his right elbow has been to 120 and limitation of elbow extension to 10 degrees, bilaterally. As the 10 percent ratings already assigned for each elbow are based entirely on the Veteran's complaints of pain and additional functional loss, the Board finds that Veteran's bilateral elbow disability did not result in additional functional loss not contemplated by the 10 percent ratings. Accordingly, an increased rating based on additional functional loss is not warranted. The Board has also considered whether higher disability ratings are warranted under an alternative diagnostic code relating to disabilities of the elbow and forearm. However, the evidence of record does not show ankylosis, forearm flexion limited to 100 degrees with extension limited to 45 degrees, joint fracture, nonunion of the radius and ulna, impairment of the radius or ulna, or impairment of the supination and pronation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5208, 5209, 5210, 5211, 5212, 5213 (2017). Accordingly, higher disabilities ratings are not warranted under an alternative diagnostic code. ORDER Entitlement to an initial rating in excess of 10 percent for right (major) elbow epicondylitis with degenerative arthritis is denied. Entitlement to an initial rating in excess of 10 percent for left (minor) elbow epicondylitis with degenerative arthritis is denied ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs