Citation Nr: 20021923 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 08-36 822A DATE: March 27, 2020 ORDER An initial rating for cervical strain in excess of 10 percent from July 21, 2007 to April 18, 2018 is denied. A rating in excess of 20 percent for cervical strain from April 18, 2018 is denied. An initial rating for left elbow ulnar neuropathy in excess of 10 percent from July 21, 2007 to October 16, 2016 is denied. A rating in excess of 20 percent for left elbow ulnar neuropathy from October 16, 2016 is denied. An initial rating in excess of 10 percent for right knee flexion is denied. An initial rating in excess of 10 percent for right wrist synovitis denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's cervical spine condition is characterized by forward flexion of 20 to 50 degrees with functional loss due to pain, fatigue and weakness. 2. Throughout the appeal, the Veteran's left elbow condition is characterized by mild and moderate incomplete paralysis. 3. Throughout the appeal, the Veteran’s right knee does not show flexion limited to 60 degrees or less, instability or subluxation. 4. The Veteran’s right wrist condition is manifested as painful motion and is currently rated at the maximum allowed. CONCLUSIONS OF LAW 1. The criteria for an initial rating for cervical strain in excess of 10 percent from July 21, 2007 to October 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5237 (2018). 2. The criteria for a rating in excess of 20 percent for cervical strain from April 18, 2018 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5237 (2018). 3. The criteria for an initial rating for left elbow ulnar neuropathy in excess of 10 percent from July 21, 2007 to October 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, (DC) 8516 (2018). 4. The criteria for a rating in excess of 20 percent for left elbow ulnar neuropathy from October 16, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, (DC) 8516 (2018). 5. The criteria for a rating in excess of 10 percent for right knee flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, (DC) 5260 (2019). 6. The criteria for a rating in excess of 10 percent for right wrist synovitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, (DC) 5215 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air force from May 2001 to July 2007, including service in the Saudi Arabia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision from Phoenix, Az, and a June 2008 rating decision from the Department of Veterans Affairs (VA) St. Petersburg, FL, Regional Office (RO). In October 2014, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. In November 2014 and December 2017, the Board remanded this case for further development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Additionally, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Neck The Veteran was initially rated under DC 5237 at 10 percent for cervical strain from July 21, 2007 to April 18, 2018. Currently, he is rated at 20 percent effective April 18, 2018. The Veteran reports that he is entitled to a higher initial rating of 10 percent from July 2007 to April 18, 2018 and a higher rating of 20 percent thereafter. Cervical disabilities have been rated by analogy under the provisions of 38 C.F.R. § 4.71a, DC 5237, which is governed by the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under DC 5237 a 10 percent is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Board finds that an initial rating higher than 10 percent from July 21, 2007 to April 18, 2018 and a rating higher than 20 percent thereafter is not warranted for his cervical condition. The Veteran was granted a 10 percent rating on July 21, 2007 due painful motion. Then, the RO increased the rating to 20 percent from April 18, 2018 since this was the first time the Veteran’s cervical forward flexion limitation was 20 degrees. See VA medical examinations (July 2007, June 2016 and April 2018). The records and VA examinations do not reflect any limitation of cervical forward flexion less than 20 degrees, inability to complete repetitive-use testing or severe guarding. Indeed, the first time it was measured at 20 degrees was on April 18, 2018. Therefore, an increase rating in excess of 10 percent from July 21, 2007 to April 18, 2018 is not warranted. Additionally, a rating in excess of 20 percent is not warranted at any point of the appeal since the record does not show ankylosis of the cervical spine. Therefore, an increase rating in excess of 20 percent from April 18, 2018 is not warranted. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for an initial rating higher than 10 percent from July 21, 2007 to April 18, 2018 and a rating higher than 20 percent thereafter is not warranted for his cervical condition and therefore it must be denied. 2. Left elbow The Veteran was initially rated under DC 8516 at 10 percent for ulnar neuropathy of left elbow from July 21, 2007 to October 17, 2016. Currently, he is rated at 20 percent effective October 17, 2016. The Veteran reports that he is entitled to a higher initial rating of 10 percent from July 2007 to October 17, 2016 and a higher rating of 20 percent thereafter. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. The Veteran is right-hand dominant and his service connection on appeal is on his left elbow. Thus, the minor rating criteria applies. Under DC 8516 minor rating criteria a Veteran is entitled to a 10 percent rating for mild incomplete paralysis of the ulnar nerve. A 20 percent rating for moderate incomplete paralysis of the ulnar nerve. A 30 percent rating for severe incomplete paralysis of the ulnar nerve. A 50 percent rating for complete paralysis of the ulnar nerve with "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Also, 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board finds that an initial rating higher than 10 percent from July 21, 2007 to October 17, 2016 and a rating higher than 20 percent thereafter is not warranted for his left elbow condition. The Veteran was granted a 10 percent rating on July 21, 2007 due to mild incomplete paralysis of the ulnar nerve. Then, the RO increased the rating to 20 percent from October 17, 2016 due to due to moderate incomplete paralysis. See VA medical examinations (October 2016 and April 2018). The records and VA examinations do not reflect any moderate incomplete paralysis of the left elbow from July 21, 2007 to October 17, 2016. See VA medical examinations (July 2007, June 2016, October 2016). Therefore, an increase rating in excess of 10 percent from July 21, 2007 to October 17, 2016 is not warranted. Additionally, a rating in excess of 20 percent is not warranted at any point of the appeal since the record does not show severe incomplete paralysis of the ulnar nerve. Therefore, an increase rating in excess of 20 percent from October 17, 2016 is not warranted. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for an initial rating higher than 10 percent from July 21, 2007 to October 17, 2016 and a rating higher than 20 percent thereafter is not warranted for his left elbow condition and therefore it must be denied. 3. Right knee The Veteran was initially rated at 10 percent under DC 5260 for right knee patellofemoral syndrome effective July 21, 2007. Currently, he is rated at 10 percent effective September 1, 2009. The RO granted a 10 percent rating due to painful motion. The Veteran reports that he is entitled to a higher rating than 10 percent. Under DC 5260, limitation of flexion of a leg to 60 degrees warrants a zero percent rating. A 10 percent rating requires that flexion be limited to 45 degrees. A 20 percent rating requires that flexion be limited to 30 degrees. A 30 percent is warranted when flexion is limited to 15 degrees. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2018). The Board finds that the Veteran’s right knee condition more nearly approximates a 10 percent rating effective on July 21, 2007 and September 1, 2009. Indeed, his medical record shows the continuous knee problems, painful motion and medical treatments, including surgery. In fact, his VA medical examination shows complaints of painful motion. See VA medical exam (April 2018). However, a higher evaluation is not warranted since there is no indication in the record of flexion limited to 31 to 45 degrees, recurrent subluxation or instability. See VA medical exams (June 2016 and April 2018). Therefore, a 10 percent rating, but not higher, is warranted for right knee painful motion from September 1, 2009. Given the foregoing, the Board finds the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran’s right knee flexion from September 1, 2009 and therefore it must be denied. 4. Right wrist The Veteran is currently rated at 10 percent under DC 5215 for right wrist synovitis effective July 21, 2007. The RO granted a 10 percent rating due to painful motion. The Veteran reports that he is entitled to a higher rating than 10 percent. Disabilities of the wrist are rated under 38 C.F.R. § 4.71a, DC 5214 and 5215. DC 5214 allows for ratings for wrist limitation where ankylosis is shown. Here, the record does not show that the Veteran suffers from ankylosis and therefore it is not applicable. Under DC 5215, limitation of motion of wrist allows a 10 percent rating for dorsiflexion less than 15 degrees and palmar flexion limited in line with forearm warrants. The Board notes the Veteran is right-hand dominant and as such, the right wrist is considered the major joint for rating purposes. The Veteran’s condition and symptoms are covered under DC 5215 and he is currently in receipt of the maximum schedular rating available under Diagnostic Code 5215. As the maximum scheduler evaluation is in effect, no additional schedular discussion is necessary and discussion of 38 C.F.R. §§ 4.40 and 4.45 and the DeLuca and Mitchell factors are moot. See Johnston v. Brown, 10 Vet. App. 80, 85 (1995) (If the maximum schedular rating is in effect for loss of motion of a joint, and the disability does not meet the criteria for a higher evaluation under any other applicable diagnostic code, further consideration of functional loss is not required). Given the foregoing, the Board finds the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran’s right wrist condition and therefore it must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.