Citation Nr: 20021226 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 11-32 453 DATE: March 25, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for right lateral epicondylitis is denied. FINDING OF FACT Throughout the appellate period, the Veteran’s right elbow disability has been manifested by flexion limited to, at worst, 135 degrees and subjective reports of pain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right lateral epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5024, 5206 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1978 to June 1982, from September 1982 to August 1984, from August 1984 to May 1988, and from May 1988 to October 1998. During his periods of service, he earned the Navy Achievement Medal (4), Good Conduct Medal (5), Southwest Asia Service Medal, Meritorious Unit Commendation, Navy Unit Commendation (3) , NATO Medal, Navy “E,” Sea Service Medal (3), National Defense Service Medal, and Navy Expeditionary Medal. Entitlement to a higher rating for right lateral epicondylitis 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. 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. The Veteran’s entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran is assigned a 10 percent rating for his service-connected right lateral epicondylitis. He contends that a higher rating is warranted. His right lateral epicondylitis is evaluated under DC 5024-5206, applicable to tenosynovitis and limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. In this regard, DC 5024 provides that the disability be rated on limitation of motion of affected parts as degenerative arthritis, which is evaluated under DC 5003. Pursuant to DC 5003, degenerative arthritis, established by X-ray findings, will be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The terms “major” and “minor" are used in the rating criteria to refer to the dominant or non-dominant extremity. See 38 C.F.R. § 4.69 (2019). The evidence of record reflects that the Veteran is right-handed. Therefore, his right upper extremity will be considered the dominant, or “major,” extremity for rating purposes. Under DC 5206, a 10 percent rating is warranted for flexion limited to 100 degrees. A 20 percent rating is warranted for flexion limited to 90 degrees. A 30 percent rating is warranted for flexion limited to 70 degrees. A 40 percent rating is warrant for flexion limited to 55 degrees. A 50 percent rating is warranted for flexion limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5206. The Veteran appeared for a VA elbow and forearm conditions examination in September 2011. The Veteran reported that he had intermittent recurring problems with aching pain. Right arm range of motion showed flexion ended at 145 degrees or greater. Extension ended at 0 degrees. There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test right knee range of motion showed flexion ended at 145 degrees or greater. Post-test extension ended at 0 degrees. The Veteran did not have any functional loss or functional impairment of the elbow and forearm. The Veteran next appeared for a VA elbow and forearm conditions examination in December 2015. The Veteran reported that he still felt intermittent right elbow, especially with overuse. He also reported flare-ups with overuse. Right arm range of motion showed flexion of 0 to 145 degrees. Extension was from 145 to 0 degrees. No pain was noted on examination. The Veteran was able to perform repetitive-use testing with three repetitions without additional functional loss or range of motion. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The examiner explained that an opinion regarding if, when and to what extent, in degrees, further repetitive use or reported flare-ups could significantly limit functional ability was not one with literature support. Based on the clinical presentation, examination findings, and the Veteran’s reports, the examiner indicated that she could not opine without resorting to mere speculation as to a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurred during examination. Pursuant to the June 2018 Board remand, the Veteran most recently appeared for a VA elbow and forearm conditions examination in April 2019. The Veteran reported that he only experienced pain when he had to perform repetitive motions. He reported pain that he rated as a nine on a scale of ten, as well as flare-ups, with repetitive motion. He also reported difficulty performing repetitive motions. Right arm range of motion showed flexion of 0 to 135 degrees. Extension was from 135 to 0 degrees. No pain was noted on examination. The Veteran was able to perform repetitive-use testing with three repetitions without additional functional loss or range of motion. Though the Veteran was not being examined immediately after repetitive use over time or during a flare up, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare ups. The examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over a period of time and during flare ups. The examiner explained that she was not able to describe the functional loss in terms of range of motion, as the Veteran experienced no loss in range of motion after repeated use over time or during flare ups. However, he reported an increase in pain. After review of the competent medical evidence, the Board finds that the weight of the evidence is against a disability rating in excess of 10 percent for right lateral epicondylitis. This evaluation is consistent with painful motion. 38 C.F.R. § 4.59. This is also consistent with the medical evidence of record, which fails to show that the Veteran’s flexion was limited to 90 degrees to warrant an increased rating based on limitation of flexion at any time during the period on appeal. The Veteran’s right elbow limitation of flexion has been noncompensable throughout the appeals period. Despite this, he has been assigned a 10 percent evaluation for his reports of painful motion. See Mitchell, supra. There is also no indication that the Veteran’s right elbow disability warrants an increased rating under any other diagnostic code relating to the elbow or forearm. The claims folder contains no medical evidence indicating that the Veteran’s right elbow disability is manifested by ankylosis of the forearm; limitation of extension of the forearm; flexion limited to 100 degrees and extension to 45 degrees in the forearm; other impairment of flail joint; nonunion of the radius and ulna with flail false joint; impairment of ulna; impairment of radius; impairment of supination and pronation; or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5205 or 5207-5213. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5207-5213 (2019). For all of the foregoing reasons, the Board finds entitlement to a disability rating in excess of 10 percent for right lateral epicondylitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.