Citation Nr: 20004698 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-41 470 DATE: January 23, 2020 ORDER Entitlement to an initial rating higher than 10 percent for residuals of a right elbow dislocation is denied. FINDING OF FACT For the entire initial rating period on appeal, the Veteran’s residuals of a right elbow dislocation manifested by noncompensable limitation of flexion and limitation of extension not worse than 40 degrees. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for residuals of a right elbow dislocation are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5207 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to December 1993. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) between December 1992 and December 1997. In July 2019, the Board remanded the claim of entitlement to an initial compensable rating for residuals of a right elbow dislocation for further development, to include providing the Veteran with a new VA examination. Subsequent to the Board’s remand, in an October 2019 rating decision, the RO increased the Veteran’s rating to 10 percent, effective September 15, 2014, the date of his claim for service connection. Nevertheless, the Board notes that the 10 percent rating does not constitute a full grant of the benefit sought by the Veteran and that higher ratings are available and as such the Veteran’s claim for initial rating higher than 10 percent remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating for a Right Elbow Disability The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are Diagnostic Codes 5206 and 5207, applicable to limitation of flexion and extension of the elbow, respectively. The Veteran’s right elbow condition is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5207. Under Diagnostic Code 5206, a 10 percent rating is warranted for the minor elbow where there is forearm limitation of flexion to 100 degrees. Under Diagnostic Code 5207, extension of the major forearm limited to 45 degrees or to 60 degrees warrants a 10 percent rating; extension limited to 75 degrees warrants a 20 percent rating; extension limited to 90 degrees warrants a 30 percent rating; extension limited to 100 degrees warrants a 40 percent rating; and, extension limited to 110 degrees warrants a 50 percent rating. Under DC 5208, a 20 percent rating contemplates a combination of flexion limited to 100 degrees and extension to 45 degrees. Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71 Plate I. For the reasons expressed below, the Board finds that a rating higher than 10 percent is not warranted at any point during the initial rating period on appeal. Turning to the evidence, VA treatment records dated from September 2014 to January 2016 are silent to any complaints or treatment for the right elbow. In January 2016, the Veteran underwent a VA elbow and forearm conditions examination, at which time the examiner confirmed a prior dislocation of the elbow in 1995. The Veteran reported that he injured the right elbow in 1995, which resulted in a dislocation. Since then, his pain and motion limitation were worse, and he had numbness and tingling of the right 4th and 5th digits. The examiner noted that the Veteran was right hand dominant. The Veteran denied having flare-ups but reported having functional loss/impairment, which he described as “it limits my motion.” Upon physical examination of the right elbow, range of motion revealed normal flexion to 145 degrees; limited extension to 20 degrees; normal forearm supination to 85 degrees; and, normal forearm pronation to 80 degrees. The examiner stated that range of motion itself did not contribute to functional loss and no pain was noted on examination. There was evidence of mild to moderate localized tenderness on the medial epicondyle, which the examiner described as “grimaced and vocalized tenderness.” There was evidence of pain with weight bearing with no objective evidence of crepitus. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statement describing functional loss with repetitive use over time and noted that it was not possible to determine without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner explained that the Veteran was not examined after repetitive use. The examiner indicated that factors contributing to the disability included less movement than normal. Muscle strength testing revealed normal strength on flexion (5/5) and active movement against some resistance (4/5) on extension, which the examiner noted showed reduction of muscle strength that was due to the claimed condition; however, there was no evidence of muscle atrophy. There was no evidence of ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. Subsequent VA treatment records dated from January 2016 to April 2018 were silent to any complaints or treatment for the right elbow with the exception of April 2018 primary care treatment record that noted the Veteran’s complaints of sustaining a right elbow trauma in 1995 and having numbness in the fingers since that time. Subsequent to the Board’s July 2019 remand, the Veteran underwent an August 2019 VA elbow and forearm conditions examination, at which time the examiner confirmed a diagnosis of residuals of a right elbow dislocation. The Veteran reported that he had constant pain, numbness, and paresthesias to the right arm below the elbow since the injury in 1995. He had difficulty firmly grasping things with the 4th and 5th fingers and had pain with lifting things up to his chest using his right arm. The Veteran reported flare-ups, which he described as much more severe pain in the mornings and after periods of rest that interfered with sleep and occurred five to six times a day. He further reported having functional loss/impairment, which he described as typing with the right hand being less efficient due to inability to coordinate use of the 4th and 5th fingers, sitting with the arm elevated increased pain, and sleeping with the arm extended or crossed/flexed increased pain. Upon physical examination of the right elbow, range of motion of motion revealed flexion to 135 degrees; extension to 40 degrees; forearm supination to 60 degrees; and, forearm pronation to 60 degrees. The examiner noted that full extension and flexion were limited du to pain down the forearm and the Veteran cradled the right arm at times during the examination and guarded his movement. Range of motion and pain did not contribute to functional loss. There was evidence of pain with weight bearing and objective evidence of pain on palpation over the lateral epicondyle and to the medial aspect of elbow with radiation down the ulnar aspect of the forearm. There was no objective evidence of crepitus. The examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during flare-ups. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time, but pain and weakness limited functional ability during flare-ups. In this regard, the examiner indicated that it was not possible to describe this in terms of range of motion and explained that the Veteran reported increased pain and weakness during flare-ups, which were daily and transient in nature. Moreover, the symptoms described were consistent with his service-connected ulnar neuropathy and not productive of a quantitative reduction in range of motion of the elbow joint itself during flare-ups. No additional elbow conditions were noted. Upon review of all the evidence, lay and medical, the Board finds that a rating higher than 10 percent is not warranted. Notably, prior to the 2019 VA examination, the Veteran’s right elbow flexion was normal and in 2019 was limited to 135 degrees, which warrants a noncompensable rating pursuant to DC 5206. In any event, the highest possible rating under DC 5206 is 10 percent. Next, the Board finds that a rating higher than 10 percent is also not warranted pursuant to DC 5207. During the 2016 VA examination extension was limited to 20 degrees and during the 2019 examination to 40 degrees. In other words, the Veteran’s limitation of extension does not even meet the compensable rating to warrant a 10 percent rating. Specifically, even considering the Veteran’s reported flare-ups and/or functional loss after repeated use over time, the record did not otherwise show that these reported symptoms over repeated use or during a flareup were so significant as to meet or approximate the criteria for the next-higher rating. More importantly, the VA examiner explained that the reported symptoms during flare-ups were related to the Veteran’s service-connected ulnar neuropathy and not productive of a quantitative reduction in range of motion of the elbow joint itself during flare-ups. In this regard, the Board notes that the Veteran is in receipt of a separate 30 percent rating for right upper extremity ulnar neuropathy, which contemplates his reported symptoms of numbness, tingling, and inability to grasp resulting in moderate incomplete paralysis of the major extremity. The Board acknowledges that in November 2019 correspondence the Veteran’s attorney argued that a rating higher than 10 percent was warranted. In doing so, the attorney attacked the adequacy of the 2016 VA examination report and the examiner’s notation that the examination report was “neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups.” First, during the 2016 VA examination, the Veteran specifically denied having flare-ups, and as such, the examiner checking the box that the examination report was “neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups” is irrelevant. Second, because of the deficiency in the examiner’s response to the same question regarding functional loss after repeated use over time, the Board remanded the claim and the 2019 VA examination cured any deficiencies found in the 2016 VA examination. Importantly, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. In any event, as aforementioned, even considering the Veteran’s reported flare-ups, the medical evidence does not more nearly approximate the criteria for a rating higher than 10 percent. Specifically, for a 20 percent rating, there must be evidence of limitation of extension to 75 degrees or a combination of flexion limited to 100 degrees and extension to 45, neither which are approximated based on the competent evidence of record. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate 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.