Citation Nr: 19190830 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-00 060 DATE: December 3, 2019 ORDER Entitlement to an initial 10 percent disability rating for painful flexion of the right elbow, post-surgical epicondylectomy, is granted effective October 1, 2009. Entitlement to a disability rating in excess of 10 percent for painful flexion of the right elbow, post-surgical epicondylectomy, is denied. Entitlement to a disability rating in excess of 10 percent for impairment of supination and pronation of the right elbow, post-surgical epicondylectomy, is denied. Entitlement to an initial compensable disability rating for gout of left foot is denied. REMANDED Entitlement to an initial compensable disability rating for plantar fasciitis of the left foot is remanded. FINDINGS OF FACT 1. The Veteran’s right elbow disability is manifested by painful motion with flexion to 135 degrees or more, supination to 75 degrees or more, and pronation to 70 degrees or more. 2. The Veteran’s left foot gout is manifested by flares of pain of the left great toe without incapacitating exacerbations, ankylosis, limitation of motion of a group of minor joints, or definite impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for painful flexion of the right elbow, post-surgical epicondylectomy, have been satisfied effective from the date of service connection on October 1, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5206. 2. The criteria for a disability rating in excess of 10 percent for impairment of supination and pronation of the right elbow, post-surgical epicondylectomy, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5213. 3. The criteria for a compensable disability rating for service-connected gout of the left foot have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to December 1987, he then served in the Reserves with a period of active duty for training from January to April 1989, and finally he returned to active duty and served from July 1992 to September 2009. He served in Southwest Asia and was awarded a Bronze Star Medal among other decorations. This appeal is from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. The case was previously before the Board in November 2017, when it was remanded for additional development. The right elbow claim initially came before the Board as a claim for a higher rating for medical epicondylitis of the major right elbow, evaluated as 0 percent disabling. In a May 2019 rating decision, the RO recharacterized that disability as “major right elbow with medial epicondylitis and painful motion” and assigned a 10 percent rating effective May 31, 2018. In addition, a separate 10 percent rating was assigned effective May 31, 2018 for major right elbow with impairment of supination and pronation. Essentially, there are now two separate ratings for the right elbow, both of which are before the Board. As noted by the Veteran, he had a medial epicondylectomy performed on his right elbow in 2009. As such, the Board is recategorizing the issues on appeal as stated on the title page. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). This appeal being from the initial ratings assigned to the Veteran’s right elbow and left foot disabilities upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be “staged.” Fenderson v. West, 12 Vet. App. 119 (1999). 1. Right Elbow Disability. The Veteran is service-connected for right elbow disability. He retired from active duty in September 2009. In October 2009 a VA joints examination was conducted. The examiner noted the diagnosis of medial epicondylitis with recent surgery for the condition and specifically that he was recently “post op; too soon to assess outcome.” The examination report indicated a full range of motion of the right elbow with no evidence of pain on motion, but also indicated problems with lifting, carrying, and reaching with pain. An October 2010 treatment record for complaints of left knee pain also noted that the Veteran was continuing to have complaints related to his right elbow despite having surgery in August 2009. A September 2011 medical record revealed that the Veteran continued to have right elbow pain that was not alleviated by his prior surgery. In November 2011 another VA examination of the Veteran's right elbow was conducted. The examiner noted that the Veteran was right handed and that he continued to have complaints of right elbow pain and tenderness which were not relieved by his prior surgery. Testing again revealed a full range of motion of the right elbow without painful motion. Ankylosis was not found to be present. However, when describing functional impact, the examiner indicated that the Veteran had chronic pain which was exacerbated with pronation and repetitive use. In written statements as well as his September 2016 hearing testimony, the Veteran indicated that the findings of the 2009 Compensation and Pension examination were not accurate with respect to his right elbow as he was still post-operative and did not have full use of his elbow for accurate testing. He asserted that the 2009 surgery was unsuccessful and that he continued to have right elbow pain ever since his separation from service. In May 2018 the most recent VA examination of the Veteran was conducted. The Veteran reported continued right elbow pain and tenderness which had not been improved by his prior surgery. Range of motion testing reveled flexion was limited to 135 degrees, extension was full, forearm supination was limited to 75 degrees, forearm pronation was limited to 70 degrees, and that the Veteran exhibited pain on motion on flexion and extension of the elbow. The examiner indicated that use of the right elbow for reaching, lifting/carrying, pushing/pulling caused elbow pain with decreased range of motion. The Veteran’s service-connected right elbow disability is rated at a noncompensable (0%) disability rating for the period prior to May 31, 2018 and at a 10 percent disability rating thereafter. The evidence establishes that the Veteran is right handed, so disability ratings of his right elbow involve rating the major extremity. Initially the Veteran’s right elbow condition was rated at a noncompensable disability rating under Diagnostic Code 5024 for tenosynovitis which is rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Diagnostic Code 5003, degenerative arthritis, requires rating under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 assigned 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of the forearm (elbow) is rated under Diagnostic Code 5206. A 10 percent disability rating contemplates flexion being limited to 100 degrees for either the major or minor extremity. Disability ratings from 20 to 50 percent contemplate more severe limitation of motion of the major elbow. 38 C.F.R. § 4.71a, Diagnostic Code 5206. The Veteran asserts that his elbow has been painful on motion ever since his separation from service in 2009 and that the surgery conducted at that time did not alleviate his symptoms. While the 2009 VA examination report indicated normal range of motion of the right elbow without pain, it also indicated that the Veteran was recently “post-operative” and a full assessment could not be made. Treatment records during the period in question show continued complaints of right elbow pain which were not corrected by the prior surgery. Accordingly, the evidence supports the assignment of a 10 percent disability rating for painful flexion of the right elbow effective from the date of service connection, May 31, 2009. See, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5206. The preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s right elbow painful limitation of flexion for any period covered by this appeal. While the Veteran has some limitation of flexion of the right elbow with pain on motion, he does not have the requisite limitation of flexion which would warrant the assignment of a rating in excess of 10 percent, nor does he have any limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207. Accordingly, a disability rating in excess of 10 percent is not warranted for the painful limitation of flexion. A rating in excess of 10 percent is not warranted for right elbow impairment of supination and pronation either. Notably, the Veteran’s right elbow supination is only shown to be reduced to 70 degrees and his pronation is reduced by 10 degrees (~87 percent of normal). For a compensable rating to be warranted, supination would need to be to 30 degrees or less or pronation would need to be reduced to less than 75 percent of normal. See 38 C.F.R. § 4.71a, Diagnostic Code 5213. Simply put, it is unclear why a separate compensable rating was assigned for right elbow impairment of supination and pronation when the Veteran is already receiving the minimum compensable rating for the joint and does not meet the criteria for compensable ratings based on the limitation of supination and pronation shown. In any event, the question before the Board is whether a higher rating is warranted for the limitation and for the above reasons it finds a higher rating is not warranted, nor is a compensable rating warranted for right elbow limitation of supination and pronation at any time prior to May 31, 2018. 2. Left Foot Gout. The Veteran was diagnosed with gout of the left foot involving the left great toe during the last few years of service. In October 2009 a VA examination of the Veteran was conducted. The Veteran’s history of gout of his left big toe beginning 4 years earlier was noted. The Veteran reported taking no maintenance medication but took Indomethacin as needed when he had pain flares. A dull ache of his first MTP joint of the left great toe was noted, but there were no other symptoms of inflammation. The examiner noted that the Veteran’s gout was not active at the time of examination so no symptoms could be produced. In November 2011 another VA examination of the Veteran was conducted. The Veteran’s history of being diagnosed with gout of the left first MTP joint of the left foot was noted. He reported having stiffness and aching pain with prolonged weight bearing. Examination revealed that the Veteran did not: require continuous use of medication, have weight loss, and did not have anemia due to his service-connected gout. Loss of 15 degrees of dorsiflexion of the left great toe was noted, but there was no deformity. The examiner indicated that the Veteran had 4 or more non-incapacitating exacerbations per year which were described as “extremely painful and impair his ability to tolerate weightbearing for one to 5 days during the acute symptoms.” No other manifestations were noted on the examination. At the September 2016 hearing the Veteran testified that he took daily medication to control his gout and that he had flare ups with pain in his left great toe from the disorder. In May 2018 the most recent VA examination of the Veteran was conducted. The Veteran reported having flares of gout in his left foot 3 to 4 times a year. He was noted to require continuous medication to treat his gout. Again, weight loss, and anemia were not present. Pain of his left great toe with flares was noted, but no limitation of motion or deformity was present. No impairment of health or exacerbations were noted. The Veteran’s left foot gout is rated at a noncompensable (0 percent) disability rating under Diagnostic Code 5017, which specifically instructs that Gout is to br rated under Diagnostic Code 5002 for rheumatoid arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5017. Disability ratings for rheumatoid arthritis range from 20 to 100 percent. A 100 percent rating is warranted with constitutional manifestations associated with active joint involvement which are totally incapacitating. A 60 percent rating is warranted for less than criteria for 100 percent but with weight loss and anemia which are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 40 percent rating is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. Finally, a 20 percent rating contemplates one or two exacerbations a year in a well-established diagnosis. 38 C.F.R. § 4.71a, Diagnostic Code 5002. The rating code instructs that for chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the 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 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Moreover, the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Assign the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5002, Note. The preponderance of the evidence is against the assigment of a compensable disability rating for the Veteran’s left foot gout. While the evidence shows that he now takes medication to control his symptoms and that he has flares of gout pain up to 4 times a year, these are not shown to be incapacitating exacerbations. He reports complaints of pain, especially with prolonged standing, but there is no objective evidence of weight loss, anemia, ankylosis, or other impairment of health. The Veteran has asserted that foot pain is his primary symptom and that rating under exacerbations is not warranted. The Board has considered rating based on chronic residuals. Limitation of left great toe motion was not shown at the most recent examination but was present in the metatarsalphalangeal joint during the November 2011 examination. While chronic residuals of gout can be rated based on limitation of motion, and Diagnostic Code 5284 (Foot injuries, other) may involve limitation of motion, in this case limitation of motion does not affect a “group of minor joints.” See 38 C.F.R. § 4.71a, Diagnostic Code 5002; VAOGCPREC 9-98 (August 14, 1998). Notably, for rating arthritis there must be “multiple involvements” of the interphalangeal, metatarsal and tarsal joints of the lower extremities to consider the disability as affecting a group of minor joints. 38 C.F.R. § 4.45(f). In this case, the limitation of motion noted in the record only affected a single joint in the toe. As such, group of minor joints was not affected and a compensable rating cannot be assigned based on painful or limited motion. Of note, for a compensable rating for a foot injury under Diagnostic Code 5284, the severity must be moderate which is not shown in this case. 38 C.F.R. § 4.71a. Ankylosis is not shown or alleged. For these reasons, the claim for a compensable rating for gout of the left foot is denied. REASONS FOR REMAND In November 2017, the Board remanded the issue of entitlement to an initial compensable disability rating for plantar fasciitis of the left foot and ordered a Compensation and Pension examination be performed. The examination was conducted in May 2018. However, the issue involving rating of the left foot plantar fasciitis was not subsequently readjudicated. It was not addressed in the May 2018 rating decision or Supplemental Statement of the Case (SSOC). Remand is necessary as an SSOC must be issued pursuant to remand from the Board. 38 C.F.R. § 19.31(c). This matter is REMANDED for the following action: Readjudicate the issue of entitlement to an initial compensable disability rating for plantar fasciitis of the left foot. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with an SSOC. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.