Citation Nr: 20022585 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-49 314 DATE: April 1, 2020 ORDER Entitlement to an initial 20 percent rating for status post right forearm fracture (right forearm disability) is granted from March 8, 2013 to December 24, 2015. FINDING OF FACT From March 8, 2013 to December 24, 2015, when considering pain, flare-ups, and corresponding functional limitations, the Veteran’s right forearm disability has more nearly approximated limitation of pronation beyond the last quarter of arc. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no higher, for right forearm disability are met from March 8, 2013 to December 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5213. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 2002 to March 2003 and from October 2004 to March 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Notably, during the pendency of this appeal, a January 2016 rating decision increased the Veteran’s noncompensable right forearm rating to 20 percent, effective December 24, 2015. On his subsequent February 2016 VA Form 9, he limited his appeal to requesting that that his 20 percent rating extend back to the effective date of service connection, or March 8, 2013. 1. Entitlement to an initial 20 percent rating, but no higher, for right forearm disability is granted from March 8, 2013 to December 24, 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, 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). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell 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, 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. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s right forearm disability is currently rated as noncompensable from March 8, 2013 to December 24, 2015 and at 20 percent thereafter under 38 C.F.R. § 4.71a, DC 5213. The rating criteria for evaluating disabilities of the elbow and forearm distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As the record establishes that the Veteran’s right extremity is dominant, the criteria for rating disabilities of the major extremity are for application. DC 5213 provides ratings for impairment of supination and pronation. Under DC 5213, pertaining to the major extremity, a 10 percent rating is warranted for limitation of supination to 30 degrees or less. A 20 percent rating is warranted for limitation of pronation beyond the last quarter of arc, where the hand does not approach full pronation, and a 30 percent rating is warranted for limitation of pronation beyond the middle of the arc. Loss of supination and pronation due to bone fusion warrants a 20, 30, or 40 percent rating depending on the fixation location of the hand. See 38 C.F.R. § 4.71a, DC 5213. Normal range of motion of the elbow is from zero degrees of extension to 145 degrees of flexion. Forearm pronation is from zero to 80 degrees, and forearm supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. While the Veteran was afforded a VA examination in February 2013, that examination does not adequately address his forearm disability, as it pertains to shoulder and arm conditions instead of elbow and forearm conditions, and thus, does not contain pertinent forearm range of motion studies. In October 2013, the Veteran reported right forearm pain with motion and manipulation, stating that he has difficulty moving groceries as well as pots and pans. He further stated that his forearm locks up and that he experiences burning pain with repetitive motion, such as cutting vegetables, which directly affected his job as a cook. See October 2013 Notice of Disagreement. On VA examination in December 2015, the Veteran described constant throbbing pain with flare-ups of weakness and increased sharper pain. He reported that such symptoms caused him to go on light duty for 2 months at his job installing fire sprinklers and that he eventually stopped working as a cook, his other job, as a result because his symptoms limited his ability to use kitchen utensils. Range of motion of the right elbow showed flexion from zero to 135 degrees, extension from 145 to zero, supination to 65 degrees, and pronation to 60 degrees, with pain, but without additional loss of range of motion upon repetition. Although the examiner opined that the Veteran’s right forearm disability was not causing functionality problems, she noted slight loss of full mobility as well as the Veteran’s report of it having been the same for the past several years. In August 2018, the Veteran testified that the symptoms he reported at the December 2015 VA examination, namely throbbing pain, flare-ups, weakness, and increased sharp pain, were the same symptoms that he has had over the course of the entire appeal period, since 2013. See Board Hearing Transcript at 5. Despite the opinion of the December 2015 VA examiner that Veteran’s right forearm disability did not result in functional impairment, when considering the Veteran’s consistent, competent, and credible reports of right forearm pain, weakness during flare-ups, and limitation in functional ability since 2013, and resolving reasonable doubt in his favor, the Board finds that a 20 percent rating is warranted under DC 5213 for limitation of pronation beyond the last quarter of arc, effective from the beginning of the appeal period, or March 8, 2013. A rating in excess of 20 percent will not be addressed, as the Veteran specifically limited his appeal to seeking a 20 percent rating for the period prior to December 24, 2015, and the evidence does not otherwise support a higher rating. See February 2016 VA Form 9; see also Board Hearing Transcript at 2-3. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.