Citation Nr: 20022442 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 15-46 280 DATE: March 31, 2020 ORDER From December 18, 2010 to December 9, 2019, a disability rating of 10 percent, and no higher, for left elbow disability (rated under Diagnostic Code 5003), is granted. From December 9, 2019, a disability rating higher than 20 percent for left elbow disability (under Diagnostic Code 5206 for limitation of flexion) is denied. From December 17, 2015, a disability rating of 20 percent for left elbow supination and pronation (under Diagnostic Code 5213) is granted; a disability rating higher than 20 percent both prior to and from December 9, 2019 is denied. From December 9, 2019, an initial, compensable disability rating for left elbow extension (under Diagnostic Code 5207) is denied. FINDINGS OF FACT 1. From December 18, 2010 to December 9, 2019, the Veteran had painful limitation motion, but not a compensable level of loss of motion solely based on flexion or extension. 2. From December 9, 2019, the left elbow disability was manifested by limitation of flexion of more than 90 degrees, but not 55 degrees or less. 3. From December 17, 2015, giving the Veteran the benefit of the doubt, the Veteran had limited pronation beyond the last quarter arc, but he did not have loss of pronation (bone fusion), with the hand fixed in supination or hyperpronation at any time during the appeal period. 4. From December 9, 2019, or any time during the appeal period, the Veteran did not have limitation of extension to 75 degrees or greater. CONCLUSIONS OF LAW 1. From December 18, 2010 to December 9, 2019, a disability rating of 10 percent, and no higher, for left elbow disability (rated under Diagnostic Code 5003 for painful motion), have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5003. 2. From December 9, 2019, a disability rating higher than 20 percent for left elbow disability based on flexion (rated under Diagnostic Code 5206) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5206. 3. From December 17, 2015, the criteria for a disability rating of 20 percent, and no higher (to include prior to and from December 9, 2019) for left elbow pronation and supination have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5213. 4. From December 9, 2019, the criteria for a compensable disability rating based on loss of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty including from March 1979 to June 1979, September 1979 to September 1983, October 2005 to February 2006, May 2006 to December 2010, and other Reserve and National Guard service. This matter is on appeal from a November 2011 rating decision wherein the RO granted service connection for a left elbow disability, with a December 18, 2010 effective date. In an August 2015 rating decision, the RO denied a compensable disability rating for the left elbow disability, but granted a total disability rating based on individual unemployability (TDIU) effective December 22, 2014 (the date the Veteran last worked full time per his April 2015 TDIU application). In March 2019, the Board remanded this matter for further development, to include a new VA examination which has since been accomplished. The Board also denied service connection for facial swelling. In December 2019, the RO granted a 20 percent disability rating from December 9, 2019. The RO also granted service connection for limitation of supination and pronation of the left elbow, with a 20 percent disability rating, effective December 9, 2019. Service connection for limitation of extension was also granted, as noncompensable, from December 9, 2019. The Board notes that although the Veteran has not disagreed with the service connection grants, such ratings are part of the current claim for an increased rating for the left elbow disability. As such, his disability will consider those criteria for a possible rating throughout the appeal period. 1. Entitlement to increased ratings for the left elbow disability. The Veteran contends that a compensable disability rating is warranted prior to December 9, 2019, and that a disability rating higher than 20 percent is warranted from that date. In a December 2019 rating decision, the RO granted a 20 percent disability rating under Diagnostic Code 5206 (for limitation of flexion) from December 9, 2019 (the date of the last VA examination). The Board notes that the Veteran is right hand dominant, as documented in the May 2011 VA examination. As such, his service-connected left elbow disability is his minor side. Normal elbow range of motion is from zero to 145 degrees and zero to 80 degrees pronation and zero to 85 degrees supination. 38 C.F.R. § 4.71, Plate I. Applicable in the present appeal is Diagnostic Code 5206, contemplating limitation of flexion of the forearm. Diagnostic Code 5206 provides that, for the minor side, flexion limited to 110 degrees is rated noncompensably; flexion limited to 100 degrees is rated as 10 percent disabling; flexion limited to 90 degrees is rated as 20 percent disabling; flexion limited to 70 degrees is rated as 20 percent disabling; flexion limited to 55 degrees is rated as 30 percent disabling; and flexion limited to 45 degrees is rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Also applicable is Diagnostic Code 5207, contemplating limitation of extension of the forearm. Diagnostic Code 5207 provides that, for the minor side, extension limited to 45 degrees or 60 degrees is rated as 10 percent disabling; extension limited to 75 degrees is rated as 20 percent disabling; extension limited to 90 degrees is rated as 20 percent disabling; extension limited to 100 degrees is rated as 30 percent disabling; and extension limited to 110 degrees is rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Also, potentially applicable is Diagnostic Code 5213, contemplating impairment of supination and pronation. Diagnostic Code 5213 provides that, for the minor side, limitation of supination to 30 degrees or less is rated as 10 percent disabling; limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation, is rated as 20 percent disabling; limitation of pronation with motion lost beyond the middle of arc is rated 20 percent disabling; loss of supination and pronation (bone fusion), with the hand fixed near the middle of the arc or moderate pronation is rated as 20 percent disabling; the hand fixed in full pronation is rated as 20 percent disabling; and the hand fixed in supination or hyperpronation is rated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Diagnostic Code 5003 provides rating criteria for degenerative arthritis, established by X-ray findings. Under that diagnostic code, arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, 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 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 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a “group of minor joints affected by limitation of motion” can entitle a veteran to 10 percent rating under DC 5003. The Board acknowledges the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the December 2019 VA examiner provided the necessary findings, following the order of the March 2019 Board remand. The Board further finds in regard to the other examinations that the elbow, unlike the knees, are generally not a weight-bearing joint. In addition, there is no logical indication why passive range of motion of the elbow would change the outcome here. Furthermore, the elbow issue on appeal has been pending since 2010. An immediate Board adjudication is to the Veteran’s benefit. The Board initially finds that at no time, both prior to December 9, 2019 and from that time, has the record indicated ankylosis for a rating under Diagnostic Code 5205 for ankylosis. Similarly, none of the evidence of record at any time supports a rating under Diagnostic Code 5208 for forearm flexion limited to 100 degrees and extension to 45 degrees, a rating under Diagnostic Code 5209 for elbow other impairment of flail joint, a rating under Diagnostic Code 5210 for nonunion of the radius and ulna with flail false joint, a rating under Diagnostic Code 5211 for ulnar impairment with nonunion in upper half with false movement, or a rating under Diagnostic Code 5212 for radius impairment with false movement. The VA examinations, VA medical records, and private medical records made no findings supportive of rating under any of those bases. Rather, the May 2015, June 2016, and December 2019 VA examiners all found no flail joint and greater degrees of flexion and extension. None of the VA examiners indicated malunion or nonunion. Prior to December 9, 2019 (at which time the Veteran underwent his most recent VA examination, which is also the date from which the RO has granted a 20 percent disability rating for flexion, a 20 percent disability rating for pronation, and a noncompensable disability rating for extension), the evidence of record consisted of private medical records, VA medical records, and VA examinations in May 2011, May 2015, and June 2016. None of this evidence shows that the Veteran had range of motion findings consistent with a compensable disability rating under Diagnostic Codes 5206 for limitation of forearm flexion (flexion limited to 110 degrees is noncompensable and flexion limited to 100 degrees is rated as 10 percent disabling) or Diagnostic Code 5207 for limitation of forearm extension (extension limited to 45 degrees or 60 degrees is rated as 10 percent disabling). The May 2011 VA examiner found that the left elbow had full (normal) extension and flexion from 0 to 140 degrees, with no pain on active motion or after repetitions and no additional limitation after repetitive motion. The Veteran received a diagnosis of status-post left elbow (ulna bone) fracture status post open reduction internal fixation (ORIF) of proximal ulna, with no effect on usual occupation or daily activities. A December 2014 private medical record, from Southern Orthopeaedic Surgeons, indicated that the Veteran complained that his elbow bothers him when he does heavy weights and that it aches when the weather changes. The examiner found that a two-degree extension lag, full flexion, full supination, and full pronation. The examiner found that “[h]is function is really quite good. The biggest problem is he can’t lift as heavy of weights as he wants to. I think for activities of daily living his function is normal.” The May 2015 VA examiner found abnormal flexion to 105 degrees and extension from 105 to 0 degrees. There was no additional function loss or range of motion after three repetitions. At worst, the June 2016 VA examiner found flexion to from 5 to 110 degrees and extension from 110 degrees to 5 degrees, with pain at extremes of motion and no additional loss after repetitive use. These findings are still consistent with noncompensable disability ratings for flexion and extension. The Board has also considered the applicability Diagnostic Code 5003, for degenerative arthritis, established by X-ray findings, to be considered based on loss of motion. A May 2012 private X-ray of the elbow generally documented postsurgical changes about the olecranon, with metallic appliance and some spurring, but no acute focal finding. The May 2015 VA examiner found that there was no degenerative or traumatic arthritis, noting that X-ray did not show such changes. The June 2016 VA examiner noted that a May 12, 2016 X-ray showed degenerative arthritis. As the June 2016 VA examiner found both X-ray evidence and painful limitation of motion, the Board finds that a 10 percent disability rating is indicated from that examination. However, the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Given there is evidence of painful motion of that joint that may be sufficient to warrant a compensable evaluation under 38 C.F.R. § 4.59. As such, the Board finds that a minimum 10 percent disability rating is warranted, given the Veteran’s reports of pain and limitation of motion under Diagnostic Code 5003 as arthritis, from December 18, 2010, the date of claim. The June 2016 VA examiner also found forearm supination was to 85 degrees and pronation to 45 degrees. Based on these findings, a 20 percent disability rating is warranted under Diagnostic Code 5213, for forearm pronation with motion lost beyond last quarter of arc, when the hand does not approach full pronation. Normal pronation is from 0 to 80 degrees, so pronation to 45 degrees would be motion lost beyond the last quarter (20 degrees). The Board notes that a higher rating under this code is only possible with loss of supination a pronation (bone fusion), with the hand fixed in supination or hyperpronation. There is no evidence of record of loss of supination and pronation or bone fusion. The Board will give him the benefit of the doubt and grant the 20 percent rating from the date of the December 17, 2015 VA Form 9 - the first indication that his disability had worsened. The Board notes that just a few months earlier, the May 2015 VA examiner found forearm supination and pronation were from 0 to 85 degrees, which would not be consistent with a compensable rating under this code. In his December 17, 2015 VA Form 9, the Veteran claimed that he is barely able to lift his arm. The Board is willing to take this statement as an indication of a worsening of his disability, but it does not find his report of its severity to be credible. As indicated above the VA examinations both a few months prior to and a few months after that statement showed significantly more movement than being barely able to lift his arm. The December 2014 private medical provider found no functional limitation for ability to perform daily activities. VA medical records during that time period do not show any to complaints of, or treatment for the left elbow. Had his symptoms been of a severity as noted in his substantive appeal, it would have been reasonable for him to have reported it to treating clinicians and/or the VA examiners. That is simply not the case, therefore the statements in his substantive appeal lack credibility and are outweighed by contemporaneous treatment records and VA examination reports of record showing less severe symptoms. As previously noted, in a December 2019 rating decision, the RO granted a 20 percent disability rating (under Diagnostic Code 5206 flexion), a 20 percent disability rating (under Diagnostic Code 5213 supination and pronation), and a noncompensable rating (under Diagnostic Code 5207 for extension), from December 9, 2019 – the date of the December 2019 VA examination. From December 9, 2019, the Board finds that the change to a 20 percent rating Diagnostic Code 5206 for flexion is appropriate as a change in code allows for a higher rating than possible under Diagnostic Code 5003. Importantly, as Diagnostic Code 5003 provide for a 10 percent rating based on pain and limited motion, separate ratings based on these same symptoms would constitute impermissible pyramiding. Furthermore, as the VA examiner did not find limitation of extension to 45 degrees or more, a compensable rating under Diagnostic Code 5207 is not indicated from December 9, 2019. As noted above, a rating higher than 20 percent under Diagnostic Code 5213 for supination and pronation would only be possible with loss of such motion, such as due to bone fusion, with the hand fixed in supination or hyperpronation. The December 2019 VA examiner has not found such limitation and no other evidence of record supports such a finding. As such, a disability rating higher than 20 percent under this code, both prior to December 9, 2019 and since that date is not supported. The Board considered functional loss and finds it does not provide a basis for a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). Neither credible lay evidence nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations for his left elbow disability. To the extent that flareups exist, the Board is sympathetic to the Veteran’s report of flareups that include pain; however, pain alone does not constitute functional loss under VA regulations. See Mitchell, supra. The various evaluations for the timeframes on appeal adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his left elbow. See DeLuca, supra; see also Mitchell, supra; and 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds that from December 18, 2010 to December 9, 2019, a disability rating of 10 percent, under Diagnostic Code 5003, is granted. From December 9, 2019, a disability rating higher than 20 percent, under Diagnostic Code 5206, is denied. From December 17, 2015, 20 percent rating and no higher, under Diagnostic Code 5213, is granted. From December 9, 2019, an initial, compensable disability rating, under Diagnostic Code 5207, is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.