Citation Nr: 20005754 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 13-06 395A DATE: January 23, 2020 ORDER Entitlement to an initial 10 percent rating, and not higher, prior to December 20, 2014 for left medial and lateral epicondylitis (left elbow epicondylitis) is granted. Entitlement to a 10 percent rating since December 20, 2014 for left elbow epicondylitis disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a stroke as secondary to service-connected ischemic heart disorder disability is remanded. FINDINGS OF FACT 1. For the period prior to December 20, 2014, the Veteran’s left elbow epicondylitis was productive of full range of motion, but with functional impairment due to pain on extension. 2. Since December 20, 2014, the preponderance of the evidence is against a finding that the Veteran’s left elbow epicondylitis has been productive by less than full range of motion but with functional limitation due to pain extension. 3. The Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation for which his education and occupational experience otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating prior to December 20, 2014 for left elbow epicondylitis disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5207. 2. The criteria for entitlement to a 10 percent rating since December 20, 2014 for left elbow epicondylitis disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5207. 3. The criteria to entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1969 to February 1972 and from January 1975 to September 1994. The Board acknowledges that additional VA treatment records were associated with the claims folder since the appeal was last adjudicated in an August 2019 supplemental statement of the case (SSOC). However, these treatment records only contain cumulative or duplicative information regarding the Veteran’s left elbow disability. Accordingly, the Board finds that it may proceed with adjudication without prejudice to the Veteran. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Court of Appeals of Veteran’s Claims (Court) has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint’s functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) 1. Entitlement to an initial 10 percent rating prior to December 20, 2014 for left elbow epicondylitis 2. Entitlement to a 10 percent rating since December 20, 2014 for left elbow epicondylitis disability The Veteran was awarded service connection for left medial elbow epicondylitis, status post ulnar nerve transposition, and assigned an initial noncompensable rating under Diagnostic Code 5299-5207. With respect to disabilities of the elbow, 38 C.F.R. § 4.71a, Diagnostic Codes 5205 through 5213 set forth relevant provisions. Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69. The Veteran is right handed. Therefore, his right elbow is his major extremity and his left elbow is his minor extremity. Diagnostic Code 5205 evaluates ankylosis of the elbow, Diagnostic Code 5254 evaluates elbow flail joint, Diagnostic Codes 5210, 5211, and 5212 evaluates impairments of the ulna and radius. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Diagnostic Code 5206 evaluates limitation of flexion. A 10 percent rating is assigned for flexion in either the major or minor extremity limited to 100 degrees. A 20 percent rating is assigned with flexion in either the major or minor extremity limited to 90 degrees. A 30 percent rating is assigned for flexion in the major extremity limited to 70 degrees. Diagnostic Code 5207 evaluates limitation of extension. A 10 percent rating is assigned for extension in either the major or minor extremity limited to 60 degrees. A 20 percent rating is assigned with extension in either the major or minor extremity limited to 75 degrees. A 30 percent rating is assigned for extension in the major extremity limited to 90 degrees. Diagnostic Code 5208 evaluates limitation of flexion and extension. A 20 percent rating is assigned for flexion limited to 100 degrees and extension limited to 45 degrees. Diagnostic Code 5213 evaluates impairment of supination and pronation. A 10 percent rating is assigned for limitation of supination to 30 degrees or less for the minor arm. A 20 percent rating is warranted for limitation of pronation with motion lost beyond last quarter of arc, where the hand does not approach full pronation. For limitation of pronation with motion lost beyond middle of arc, a 20 percent rating is warranted for the minor arm. 38 C.F.R. § 4.71a. Normal range of motion of the elbow is from 0 degrees on extension to 145 degrees on flexion with pronation to 80 degrees and supination to 85 degrees. 38 C.F.R. § 4.71a, Plate I. Initially, the Board notes that the Veteran is also service-connected for left carpal tunnel syndrome, status post carpal tunnel release, with peripheral neuropathy, rated under Diagnostic Code 8513, for all radicular groups (involving shoulder, elbow, hand, and wrist), which contemplates his symptoms of weakness and tingling in his left forearm and hand. As such, his left elbow epicondylitis disability was awarded based limitation of motion and does not consider any neurologic impairment involving his left elbow and hand as the same symptomatology cannot be compensated twice. See 38 C.F.R. § 4.14. The record shows that the Veteran initiated his claim for left elbow epicondylitis disability in February 2012. He has reported that his left elbow epicondylitis disability was manifested by decreased range of motion and it was incurred as a result of eft ulnar nerve transposition surgery in 1994 during his period of service and a repeat left ulnar nerve transposition surgery in 2010. The Veteran has been afforded multiple VA forearm and elbow examinations during the pendency of the appeal. A July 2012 VA forearm and elbow examination report shows the Veteran had a current diagnosis of left medial epicondylitis, status post ulnar nerve transposition. He complained of aching sensation above his left medial condyle area. He did not report any episodes of flare-up of left elbow pain that resulted in functional impairment. On clinical evaluation, the VA examiner observed that the Veteran had left elbow flexion limited to 145 degrees, extension limited to zero degrees, pronation limited to 80 degrees with pain, and supination limited to 85 degrees. The VA examiner marked that there was evidence of pain on motion as well as evidence of additional loss of flexion after repetitive use. The Veteran had normal muscle strength on extension and flexion in the left elbow. There was no x-ray evidence of arthritis in the left elbow of record as both 2003 and 2010 VA x-ray reports were negative for arthritis. On his March 2013 substantive appeal, the Veteran reported this his left elbow epicondylitis disability prevented him from fully extending his left arm, even after his 2010 surgery. He contended that since his left elbow does not fully extend and is manifested by decreased ranged of motion and painful motion, he should be assigned a compensable rating. A November 2013 VA forearm and elbow examination report shows a diagnosis of left elbow medial epicondylitis with arthritis. The Veteran complained of daily left elbow pain along the medial epicondyle. He reported that he had undergone left ulnar nerve decompression and transposition twice. On clinical evaluation, the VA examiner observed that the Veteran’s left elbow had flexion limited to 145 degrees and extension limited to zero degrees, without objective evidence of painful motion. The VA examiner noted that the Veteran did not want to perform three repetitions of range of motion due to described pain in his left elbow. There was evidence of evidence of localized tenderness and pain on palpation, but normal muscle strength in the left elbow. A December 20, 2014 VA forearm and elbow examination report shows the Veteran reported a recent history of repeat left ulnar nerve transposition and carpal tunnel release surgery in April 2014, but he stated that it had failed to relieve his symptoms and he continued to have pain over ulnar side of the forearm and into small and ring fingers. He reported that due to his disability he was unable to perform heavy lifting and he had difficulty with daily activities (such as typing and driving) because of flare-ups of pain in his elbows. Clinical evaluation revealed the Veteran’s range of motion in his left elbow was limited to 90 degrees on flexion, limited to 10 degrees on extension, limited to 80 degrees on supination, and limited to 80 degrees on pronation. There was no additional loss of motion after repetitive use. Muscle strength was normal and there was no evidence of muscle atrophy. The VA examiner found that the Veteran’s left elbow limitation of motion causes functional loss as he was unable to perform heavy lifting and impairs his activities of daily living due to pain. A January 2015 VA forearm and elbow examination report shows a diagnosis of left medial epicondylitis, which was considered resolved as there was no objective evidence of residuals. Clinical evaluation revealed that on range of motion testing, the Veteran’s left elbow had normal range of motion on flexion, extension, supination and pronation, and there was no evidence of additional limitation of motion after repetitive use. He had normal muscle strength and there was no evidence of muscle atrophy in the left elbow. During the November 2016 Board hearing, the Veteran testified that following his recent left ulnar nerve surgery in 2014, he had been unable to straighten my left arm all the way out, but during the most recent VA examination, the examiner had forced his arm straight and measured it despite his concerns about pain. The Veteran reported that due to his left elbow disability, he was able to perform some small tasks, but he was unable to do yard work because he gets shooting pain in his elbow. He reported he has been prescribed Gabapentin, which provides some relief. The Veteran underwent his most recent VA forearm and elbow examination in August 2019. The examination report shows a diagnosis of left lateral and medial epicondylitis. The Veteran complained of pain and numbness in forearm and fingers, and knotting of muscle, cramping, and pain with extension and lifting of his left arm. He reported a history of three left ulnar nerve surgeries, with residual functional impairment in his left elbow due to painful motion and inability to lift heavy objects without fear of hurting himself. The Veteran did not report any flare-ups of elbow or forearm symptomatology. Range of motion testing revealed the Veteran’s left elbow had normal range of motion on flexion, extension, supination, and pronation, and there was no objective evidence of painful motion. The VA examiner further found no additional limitation of motion after repetitive use or significant level of functional impairment due to pain, weakness, fatigability, or incoordination. However, the VA examiner did observe evidence of pain by wincing with pain when pressure was applied to the left elbow. No arthritis of the left elbow has been documented by x-ray evidence. Although the November 2013 VA examiner recorded a current diagnosis of left elbow epicondylitis with arthritis, no diagnostic x-ray testing was conducted during that examination and the previous 2003 and 2010 VA x-ray reports of the left elbow were negative for arthritis. None of the subsequent VA examination reports show diagnosis of arthritis involving the left elbow. Instead, the competent medical records only reflect x-ray evidence of arthritis involving the right elbow (and not the left elbow). Accordingly, consideration of an initial higher rating under Diagnostic Code 5003 is not for consideration. A compensable rating would require X-ray evidence of arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the period prior to December 20, 2014, the Board finds that there is no evidence of flexion limited to 100 degrees or extension limited to 45 degrees or less. As such, the evidence of record does not support the assignment of an initial compensable rating based on limitation of motion in the left elbow. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206 and 5207. That being said, the Board cannot ignore the Veteran’s reports about painful motion and functional impairment due to pain in left elbow. Although he has not specifically detailed the left elbow motion loss due to pain during a flare-up, he had consistently reported difficulty with extending his arm that renders him unable to perform heavy lifting and causes him limitation of activity of daily living due to pain in his left elbow. Given the Veteran’s consistent reports of functional impairment on extension due to pain as well as objective evidence of pain on palpitation of the left elbow, a finding of left elbow limitation on extension, with consideration to the possible additional motion loss during a flare-up, is warranted. See Thompson, 815 F.3d at 785 (“[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 [or 4.73] criteria.”). Accordingly, although the range of motion do not show that the Veteran met the criteria for a compensable rating based on forearm limitation of motion, when considering functional impairment due to pain, the Board finds a 10 percent rating based upon forearm limitation of extension is warranted for the period prior to December 20, 2014. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5207. The Board finds that the preponderance of the competent evidence is against a finding that a rating in excess of 10 percent for left elbow epicondylitis disability is warranted at any point during the pendency of the appeal. The Board acknowledges that the findings in the December 2014 VA examination shows left elbow limitation to 90 degrees; however, the Veteran has exhibited near normal range of motion in the left elbow and forearm in each of the subsequent VA examinations, including the January 2015 VA examination which occurred only a month later. It is noted that for the purposes of assigning a disability rating, any increase in severity must be relatively permanent. Temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306- 307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Here, the Board does not find that the brief exhibition of more severe limitation of motion in the left elbow during the December 2014 VA examination represents an overall change in severity of the Veteran’s symptomatology so as to warrant an evaluation in excess of 10 percent. Again, neither of the subsequent VA examinations show evidence that the Veteran’s disability has resulted in limitation of flexion of the elbow to 100 degrees or limitation of extension to 45 degrees, sufficient to even warrant the current 10 percent evaluation under Diagnostic Codes 5206 or 5207. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206 and 5207. It is only when considering the Veteran’s reports of painful motion and functional impairment due to pain on left elbow extension that supports the assignment of the current 10 percent rating under Diagnostic Code 5207. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5207. In other words, if strictly rated under range-of-motion diagnostic codes, the Veteran’s left elbow disability would only warrant a noncompensable disability rating. The current 10 percent rating was assigned based on the complaints of pain and functional impairment without any compensable limitation motion. Given that the Veteran’s complaints do not prevent him from achieving near normal range of motion of the left elbow as reflected in the January 2015 and August 2019 VA examination reports, the preponderance of evidence does not support a finding of additional functional loss for a rating higher than 10 percent. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; and Mitchell, supra. The Board has also considered whether a higher rating is warranted under Diagnostic Code 5213 for impairment of supination and pronation. Notably, all the examinations of record indicate the Veteran to have normal supination and pronation (normal range of motion and no impairment indicated, respectively). There is also no evidence of any limitation of pronation or supination during the appeal period. Therefore, the Board finds that a separate or higher rating under Diagnostic Code 5213 for limitation of pronation or supination is not warranted. See 38 C.F.R. § 4.71a. For these reasons, the Board finds that an initial rating of 10 percent, and not higher, for the left elbow epicondylitis disability prior to December 20, 2014 is warranted; however, at no point during the pendency of the appeal does the evidence support the assignment of a rating in excess of 10 percent for left elbow epicondylitis disability. As the preponderance of the evidence is against the assigned of a rating in excess of 10 percent for the left elbow disability, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Neither the Veteran, nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record for this disability. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). 3. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to October 16, 2017 is remanded. The Veteran contends he is unemployable as a result of his service-connected disabilities. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the purpose of one 40 percent disability, disabilities of one or both upper extremities, or disabilities affecting a single body system, for example orthopedic, will be considered as one disability. 38 C.F.R. § 4.16 (a). The question of whether an individual is capable of substantially gainful employment must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is in receipt of service connection for lumbar spine disability rated at 20 percent prior to June 12, 2018, and since then, and at 40 percent; right carpal tunnel syndrome rated at 20 percent prior to June 12, 2018, and since then, and at 40 percent; cancerous colon polyps with peptic duodenitis claimed as gastroenteritis rated at 30 percent, ischemic heart disease rated at 30 percent; left carpal tunnel syndrome rated at 20 percent prior to June 12, 2018, and since then, and at 30 percent; depressive disorder rated at 30 percent; right elbow limitation of flexion rated at 20 percent since December 20, 2014; right shoulder impingement rated at 30 prior to April 1, 2015, and thereafter rated at 20 percent; right lower extremity radiculopathy rated at 10 percent; tinnitus rated at 10 percent; left elbow epicondylitis rated at 10 percent; right elbow epicondylitis rated at 10 percent prior to April 1, 2015, and thereafter, as noncompensable; and with noncompensable ratings for residual right hand fracture, ocular migraines, left upper extremity scar, and bilateral hearing loss. In this case, the Veteran is in receipt of a combined 90 percent rating or higher for his service-connected disabilities since June 22, 2011 and, therefore, meets the schedular criteria for an award of a TDIU for the entire period on appeal. Although the Veteran has not been in receipt of a single service-connected disability is rated at 40 percent or more prior to June 2018, his disabilities involving his right and left upper extremities, are considered a single disability for the purposes of 38 C.F.R. § 4.16 (a). Accordingly, they are considered “one disability” and meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) throughout entire pendency of appeal. On his November 2013, application for increased compensation due to unemployability, VA Form 21-8940, the Veteran reported that he last worked full time in August 2001 as food service director at a state correctional facility. He also completed two years of college. He stated that he was unable to work due to the severity of his service-connected right shoulder impingement, bilateral elbow, bilateral carpal tunnel syndrome, hearing loss, and back disabilities. An August 2012 VA elbow examination report shows the VA examiner noted that the Veteran’s right elbow disability impacted his ability to work because he was unable to lift. November 2013 VA shoulder and peripheral nerve examination reports show that the VA examiner noted that the Veteran’s right shoulder and left carpal tunnel syndrome disabilities impacted his ability to work as his right shoulder prevented him from working over shoulder height and he was unable to grasp with his left hand. A November 2013 spine examination report shows that the VA examiner noted that the Veteran’s back disability impacted his ability work because of limitation in motion. An August 2019 VA intestinal examination shows the VA examiner noted that the Veteran’s service-connected colon polyp disability impacted his ability to work because he experienced alternating diarrhea and constipation. In an August 2019 VA heart examination, the VA examiner noted that the Veteran’s ischemic heart disease disability limits him to activities consistent with climbing one flight of stairs, golfing, and mowing, as well as impacted his ability to work because he experienced fatigue, weakness, and chest pain during increased activities. The Veteran’s service-connected disabilities cause substantial occupational impairment, which is reflected in the ratings currently assigned and in the combined rating of 90 percent. While no single disability has been shown to preclude employment, taken together, they have resulted in a combination of physical and mental impairments, which may reasonably be expected to preclude the regular and reliable performance of the type of occupational tasks for which he has training and job experience. In sum, the Board finds that the schedular TDIU requirements have been met for the entire period on appeal; and, that the combined service-connected disabilities have rendered the Veteran unable to secure or follow a substantially gainful occupation for the entire period on appeal. In light of these findings, the Board concludes that TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a stroke as secondary to service-connected ischemic heart disease disability is remanded. The Veteran asserts that he has suffered strokes secondary to his service-connected ischemic heart disease disability. The record shows that the Veteran had history of right brainstem stroke in 2007 and two subsequent transient ischemic attacks (TIA) in 2008 and an October 2012 VA vascular laboratory report showed findings consistent with recent TIA. The Veteran has not been afforded a VA examination in conjunction with his claim. A remand is needed to afford the Veteran a VA examination to determine the nature and etiology of his claimed condition. (Continued on the next page)   The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any claimed stroke. The examiner must opine whether it is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected ischemic heart disease disability. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.