Citation Nr: 1809047 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-08 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 20 percent for recalcitrant lateral epicondylitis, right, post-operative with residuals (right elbow disability). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his Brother ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1990 to May 1991, and from October 2003 to March 2005. He also served in the Army National Guard, including periods of active duty for training (ACDUTRA) from August 1987 to November 1987, and from December 2008 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The January 2010 rating decision continued the 20 percent rating for the Veteran's service-connected right elbow disability. The Veteran and his brother testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2014. A transcript of the hearing has been added to the record. In September 2016, the Board remanded the appeal to the RO for additional development. The matter has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's right elbow disability is characterized by painful range of motion in the right elbow with extension limited to between 5 and 37 degrees; flexion limited to between 90 degree and normal. Supination and pronation have been, at worst, limited at noncompensable levels throughout the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's right elbow disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5206, 5207, 5213 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has 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 a duty to assist argument). Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 38 C.F.R. §§ 3.102, 4.3. 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). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of a disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. 4.59 are meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where the claimant already has a compensable level of limitation of motion. Vilfranc v. McDonald, 28 Vet. App. 357, 361 (2017). Normal elbow range of motion is from zero to 145 degrees and zero to 80 degrees pronation and zero to 85 degrees supination. 38 C.F.R. § 4.71, Plate I (2017). The Veteran is right hand dominant, and so his right elbow is considered his major elbow and his left elbow is considered his minor elbow for compensation purposes. Applicable in the present appeal is Diagnostic Code 5206, contemplating limitation of flexion of the forearm. Diagnostic Code 5206 provides that, for the major side, flexion limited to 70 degrees is rated as 30 percent disabling; flexion limited to 55 degrees is rated as 40 percent disabling; and flexion limited to 45 degrees is rated as 50 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Also potentially applicable is Diagnostic Code 5207, contemplating limitation of extension of the forearm. Diagnostic Code 5207 provides that, for the major side, extension limited to 90 degrees is rated as 30 percent disabling; extension limited to 100 degrees is rated as 40 percent disabling; and extension limited to 110 degrees is rated as 50 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Also potentially applicable is Diagnostic Code 5213, contemplating impairment of supination and pronation. Diagnostic Code 5213 provides that, for the major side, limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling; loss of supination and pronation (bone fusion), the hand fixed in full pronation is rated as 30 percent disabling; and the hand fixed in supination or hyperpronation is rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Diagnostic Code 5003 provides rating criteria for degenerative arthritis, established by x-ray findings. Under that diagnostic code, arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 "group of minor joints affected by limitation of motion" can entitle a veteran to 10% rating under DC 5003. Facts and Analysis The Veteran brought his claim for an increase in a statement received in June 2009. Relevant history of record includes a January 2009, VA treatment record, in which it is noted that the Veteran was treated by VA for complaints of right elbow pain. The Veteran reported that his right elbow pain was worse when lifting light objects and worsened even more when lifting heavy objects. The Veteran was examined, and the examiner noted he had full range of motion, flexion, extension, supination and pronation of the right elbow. The examiner noted there were no neurological deficits in examination of the right arm. The examiner noted "as far as his right elbow is concerned [he] has a soft tissue injury to the right elbow, does not seem to be seriously impairing and even though it may bother him from time to time I have no recommendations to make as far as limited activity." See January 2009 Hattiesburg Clinic Treatment Record at page 5. The Veteran was seen twice in July 2009 by VA, complaining of right elbow pain. On the first visit, he was treated with hydrocodone. On the second visit, an x-ray was done which showed some trochlear ulnar arthritis with no evidence of fracture. The Veteran was placed on Naprosyn and instructed by the examiner to stop using his arm at work until the pain subsides and to place his elbow in a sling. See July 2009 VA Progress Note at page 1. The Veteran underwent a VA examination for his right elbow in October 2009. Range of motion testing revealed the Veteran's right elbow had flexion from 0 to 90 degrees, extension 90 to 10 degrees, supination to 40 degrees (of a normal 85) and pronation to 50 degrees (of a normal 80). The examiner noted objective evidence of pain following repetitive motion. No ankylosis was found and x-rays indicated bony spur lateral epicondyle of the olecranon. The Veteran reported severe limitation of use during flare ups and that he wore an elbow brace while working. In January 2010, the Veteran was treated by VA. The examiner noted the Veteran's complaint of intermittent numbness and tingling in the radial nerve distribution. Motor function was found to be intact and no numbness or tingling was present during the examination. He had good radial nerve sensation in the dorsum of the web space. The Veteran reported forearm discomfort aggravated by activity. The examiner reported the Veteran has near full pronation but lacked 20 degrees supination. Pulses were noted as good and ulnar and median motor and sensory were good in the hand. See Asheville VA Treatment Record at page 1. The Veteran reported elbow pain, later in December 2010. He received an injection of methylprednisolone and lidocaine in his elbow. In February 2010, the Veteran's wife, sent a handwritten statement to VA regarding the Veteran's right elbow injury. She stated the Veteran, over the past couple of years, had been having more complications with his arm. She noted the Veteran enjoys fishing, boating, motorcycling, and yard work and that these activities now cause the Veteran pain, due to his right elbow disability. In June 2011, the Veteran reported to VA that he was using a tennis elbow band and taking Aleve with reasonable control to relieve pain in his right elbow. See June 2011 VA Progress Notes at page 2. In December 2011, the Veteran was seen again for elbow pain and requested an injection to relieve pain in his elbow. He was given an injection of kenalog and lidocaine. See December 2011 Progress Note. From March 2012 to January 2013 the Veteran complained of pain to his elbow and received injections for alleviation. He reported his elbow was very tender and that he was wearing a tennis elbow splint full time on his right arm. After requesting surgery to relieve the pain, the Veteran had surgery on his right elbow later that year in April. In an August 2013 VA treatment record, the examiner reported the Veteran had full range of motion in his right elbow but the Veteran's use of his elbow was slow and guarded. X-rays showed early arthritic changes at the capitellum. The Veteran reported using his tennis elbow band and was able to return to light work but not heavy physical work due to his chronic discomfort. See August 2013 Progress Note at page 1. In October 2013, the Veteran complained again of pain and reported he had suffered from a right arm spasm while washing the dishes. The Veteran described that his arm cramped up and continued to feel "achy" for the remainder of the night. See October 2013 Progress Notes at page 1. The examiner noted the Veteran's grip strength had increased to 20 pounds. However, in November 2013, the Veteran noted that in his occupation as a truck driver he was unable to hoist himself up into his truck at times, due to his right elbow. The Veteran testified at a Travel Board hearing before the undersigned Board member in July 2014. At that time, the Veteran testified that due to his right elbow he was unable to do heavy lifting and had reached a point where he could no longer hold things. He wore a sling for a month at his job. The Veteran estimated that he had about 13-20 pounds of grip in his right hand due to his right elbow. He testified that he drives a dump truck and he could not move the "hood" as it weighs more than he can grasp. As a result, the Veteran said he was told by his job he could not come back and had to seek disability. See July 2014 Hearing Transcript at page 17. The Veteran testified due to lack of strength in his arm, his brother assisted him around the house. The Veteran described the pain to his right elbow as a 4 or a 5, all the time, worsening with activity. Id. at 18. He reports he is no longer able to work on cars, do yard work, ride a motorcycle or swim off his boat (for fear of not being able to hoist himself back onto his boat). Id. at 19. The Veteran stated he felt depressed watching others have a good time when he cannot. He reported that his wife began sleeping on the couch due to his constant moving around in bed to adjust for the pain and discomfort. Id. at 22. The Veteran's brother testified at the hearing that he assists with caring for his brother. The Veteran's brother testified "Well, he can't live like he used to. He can't do what he really needs to do. That's where I step in." Id. at 20. The Veteran underwent a VA examination of his right elbow in November 2015. Range of motion testing revealed forearm extension limited to 5 degrees with pain, normal flexion of 145 degrees and no functional impairment with repetitive motion. Muscle strength with flexion was reported as 5/5 and with extension as 4/5. The Veteran reported that during flare ups cold damp weather makes the pain worse. He also reported that he cannot lift anything heavy with his right arm during a flare up. The Veteran underwent a VA examination in March 2017. The Veteran reported that about 8 months prior to the examination he began to feel pain in his right elbow again (since his surgery in 2013). The Veteran reported stiffness and weakness in his right elbow. "He reports that his elbow will fatigue easily and cause coordination. The [Veteran] reports that when he lightly touches the volar forearm, he feels pain where he is touching. He reports if he massages the same area with his thumb that it feels better. He reports no tingling or numbness in his fingers. No complaints of decreased grip strength in the right hand." See March 2017 VA Examination at page 1. The Veteran reported that he wears a tennis elbow brace nearly all the time and it helps alleviate the pain. Range of motion testing revealed right elbow active flexion to 140 degrees, limited by pain. Passive flexion was to 146 degrees, active flexion was limited to 150 degrees due to pain. Extension of the right elbow lacked 37 degrees due to pain. Flexion strength was recorded as 4/5 and extension strength was recorded as 3/5, both limited by pain. Right elbow active supination was to 62 degrees and passive supination was to 90 degrees, both limited by pain. Right elbow active pronation was to 60 degrees and passive pronation was to 90 degrees, each limited by pain. The Veteran was given a neurological examination concerning his right elbow. The findings were that the sensation to finger touch was intact on all fingers of the right hand. Two point sensation was also intact, as well as, gross normal motor function. The VA examiner noted "all weakness in the right upper extremity area is secondary to pain and not due to [neurological] deficits." Id. at page 2. An MRI of his right elbow, revealed no fractures, joint effusion or dislocations. There was some soft tissue calcifications just lateral to the distal humeral epicondyle. Ultimately, the VA examiner opined, "With respect to [Veteran's] 20% disability rating for right elbow loss of flexion secondary to lateral epicondylitis and previous surgeries, I recommend no changes be made to this. No surgery is recommended by me for his lateral epicondylitis. [Veteran] has had two prior surgeries and after each surgery his epicondylitis has come back." Id. The examiner further recommended the Veteran avoid activities which increase his right elbow pain, wear his elbow brace and manage his pain with non-steroidal inflammatory drugs. The evidence of record does not show or suggest at any time during the period of appeal, that the Veteran's recalcitrant lateral epicondylitis, right, post-operative with residuals (right elbow disability) revealed flexion limited to 70 degrees or less, extension limited to 90 degrees or more, or limitation of pronation with motion lost beyond the middle of arc, or the hand fixed in full pronation. These are the manifestations that warrant a higher evaluation, and they are not found to be present in this Veteran's case. The Veteran complains of pain while enjoying activities such as yard work, washing dishes, motorcycle riding, hoisting himself up and driving a dump truck. The Veteran is competent to report pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Board does not find an increase due to functional loss is warranted. The Board accepts the Veteran's complaints of pain. 38 C.F.R. §§ 4.40, 4.45. Pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case, the currently assigned ratings contemplate the Veteran's symptoms to include pain and flare-ups. His measured ranges of motion exceeded the limitations required to meet the criteria for higher ratings for the right elbow, based on limitation of motion. Therefore higher rating are not warranted under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, Mitchell, supra. The Veteran has also described his issue of not being able to work since 2014. Notably, a total disability rating based on individual unemployability (TDIU) was granted effective in July 2014. As such, the benefit of the doubt doctrine is not applicable and a rating in excess of 20 percent for recalcitrant lateral epicondylitis, right, post-operative with residuals (right elbow disability), must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. Extraschedular The Veteran has not sought consideration of 38 C.F.R. § 3.321 (b)(1). Moreover, the record has not reasonably raised it. Therefore, extraschedular discussion is not warranted. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER Entitlement to an initial rating in excess of 20 percent for recalcitrant lateral epicondylitis, right, post-operative with residuals (right elbow disability) is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs