Citation Nr: 18106910 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 12-19 739 DATE: June 1, 2018 ISSUES DECIDED: 3 ISSUES REMANDED: 4 ORDER Entitlement to an initial rating higher than 10 percent for tinnitus is denied. Entitlement to an initial rating higher than 10 percent for left elbow strain, residuals of healed fracture is denied. Entitlement to an initial rating higher than 10 percent for right wrist strain, residuals of a healed fracture, is denied. FINDINGS OF FACT 1. The current 10 percent rating for tinnitus is the maximum schedular rating for tinnitus, whether tinnitus is perceived in one ear or each ear. 2. The Veteran’s left elbow strain is manifested by painful motion, normal extension, and stability, and limitation of flexion to, at worst, 0-100 degrees with pain that does not additionally limit range of motion findings. 3. The residuals of the Veteran’s right wrist strain, residuals of a healed fracture, were manifested by painful motion, a range of motion of, at worst, 40 degrees palmar flexion and 40 degrees dorsiflexion, normal pronation, normal supination, and complaints of pain and swelling; arthritis or ankylosis was not shown by x-ray. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a rating higher than 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 2. The criteria for entitlement to an initial rating higher than 10 percent for left elbow strain, residuals of healed fracture, have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207 (2017). 3. The criteria for entitlement to an initial rating higher than 10 percent for right wrist strain, residuals of a healed fracture, have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2002 to June 2007, including service in Iraq. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In February 2014, the Veteran‘s service representative withdrew that request in writing. 38 C.F.R. 20.704(e). In December 2014, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal of the Veteran originally included a claim for service connection for left ear hearing loss. In a March 2018 rating decision, the RO granted service connection for left ear hearing loss. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for left ear hearing loss. Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Board also notes that at the time of the last remand, the Veteran raised the issue of total disability based upon individual unemployability (TDIU) based upon the Veteran’s April 2010 notice of disagreement. The evidence reflects that subsequent to the notice of disagreement, the Veteran has obtained employment as a millwright. A July 2017 treatment note reflected the Veteran was still employed (albeit with an erratic work schedule). The November 2017 VA examinations also indicated the Veteran was still employed. Therefore, in the circumstances of this case, the Board declines to take jurisdiction over a total disability rating claim. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to an initial rating higher than 10 percent for tinnitus In a rating decision in March 2010, the RO granted service connection for tinnitus and assigned a 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6260. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether tinnitus is perceived as being in one ear or each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2. In Smith v. Nicholson, 451 F. 3d 1344, 1350-51 (Fed. Cir. June 19, 2006), the Federal Circuit affirmed VA’s long-standing interpretation of Diagnostic Code 6260 that only a single 10 percent rating for tinnitus is assignable, whether or not the tinnitus is perceived unilaterally or bilaterally. In light of the foregoing, the Board concludes that the initial rating of 10 percent for tinnitus is the maximum rating assignable under Diagnostic Code 6260, whether or not tinnitus is perceived in each ear. As the disposition of the claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to an initial rating higher than 10 percent for left elbow strain, residuals of healed fracture The Veteran is assigned a 10 percent rating for his left elbow disability. 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. The Veteran is right-handed. After a review of all the lay and medical evidence of record, the Board finds that the Veteran’s left elbow disability during the applicable period on appeal did not manifest to a level warranting a 20 percent evaluation. When flexion of the forearm of the minor (non-dominant) extremity is limited to 45 degrees, a 40 percent evaluation may be assigned. When limited to 55 degrees, a 30 percent evaluation is assignable. When flexion is limited to 70 or 90 degrees, a 20 percent evaluation may be assigned. When flexion is limited to 100 degrees, a 10 percent evaluation may be assigned. When limited to 110 degrees, a noncompensable evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5206. A 40 percent evaluation is assignable for limitation of extension of the forearm of the minor extremity to 110 degrees. A 30 percent evaluation may be assigned when extension is limited to 100 degrees. When extension is limited to 90 or 75 degrees, a 20 percent evaluation may be assigned. A 10 percent evaluation may be assigned when extension is limited to either 60 or 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. The Board finds that a preponderance of the evidence is against the claim for an initial disability rating higher than 10 percent for left elbow disability. Range of motion testing was performed during VA examinations in December 2009 and January 2016, and was at worst 100 degrees of flexion and extension was normal. Left pronation was normal and supination was 80 degrees. Normal supination is 0-85 degrees but a loss of motion for supination is not compensable until limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5213. The Board acknowledges the findings of pain throughout the Veteran’s range of motion. The pain did not, however, create additional limitation of motion. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has difficulty using his elbow in the January 2016 VA examination, he has not described a range of motion less than that found on examination. In this regard, during the December 2009 examination he reported pain, stiffness, weakness, incoordination, and reduced symptom. Once again, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating for the left elbow disability is not warranted based on limitation of motion. 38 C.F.R. § 4.71a. As there is no evidence of ankylosis of the elbow, flail joint, nonunion of the radius and ulna with flail false joint, impairment of the ulna, or joint fracture, these diagnostic codes are not applicable to the current appeal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5209, 5210, 5211, 5212. Because there is no compensable impairment of supination and pronation, a rating under Diagnostic Code 5213 also is not applicable. 3. Entitlement to an initial rating higher than 10 percent for right wrist strain, residuals healed fracture The Veteran’s right wrist disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215, limitation of motion for the wrist. That diagnostic code assigns a 10 percent rating for dorsiflexion less than 15 degrees or for palmar flexion limited in line with the forearm on either the dominant or non-dominant wrist. Although the medical evidence demonstrates that while the Veteran does not have any compensable loss of function or motion of the right wrist, he has pain. The Board acknowledges the findings of pain throughout the Veteran’s range of motion. The pain did not, however, create additional limitation of motion. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this instance, the minimal available rating for his wrist disability under Diagnostic Code 5215 is 10 percent. Based on a review of the relevant evidence, and the applicable law and regulations, it is the Board’s conclusion that a 10 percent is the highest rating available under Diagnostic Code 5215, and a higher schedular rating may not be assigned. For a rating in excess of 10 percent, ankylosis of the wrist must be present. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In this case the evidence does not reflect and the Veteran does not allege that he has ankylosis of the right wrist. A rating in excess of 10 percent for the right wrist disability is not warranted. The 10 percent rating is the maximum available for limitation of motion of the wrist without evidence of ankylosis, which the evidence establishes is not present. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. REMANDED ISSUES The issues of entitlement to an initial rating higher than 10 percent for 1) left knee, patellofemoral syndrome; 2) right knee, patellofemoral syndrome; 3) left ankle strain; and 4) right ankle strain are remanded. For each of these issues, the Veteran underwent VA examinations following the most recent supplemental statement of the case. Though these examinations were reviewed in a subsequent rating decision, they were not reviewed in a SSOC, and neither the Veteran nor his representative have waived agency of original jurisdiction review of these issues. Such review must be accomplished before the Board can issue a decision on these matters. The matters are REMANDED for the following action: 1. Issue a supplemental statement of the case reviewing all evidence for the remanded claims generated since the time of the October 2016 supplemental statement of the case. Return these issues to the Board if in order. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell Veldenz, Counsel