Citation Nr: 21000583 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-56 110 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease of the left elbow with elbow strain prior to January 9, 2020, is denied. Entitlement to an initial rating in excess of 50 percent for service-connected ankylosis of the left elbow with degenerative joint disease (previously rated as degenerative joint disease of the left elbow with elbow strain) from January 9, 2020 forward, is denied. Entitlement to an initial rating in excess of 10 percent for service-connected impairment of the left forearm supination/pronation prior to January 9, 2020, is denied. Entitlement to an initial rating in excess of 20 percent for service-connected impairment of the left forearm supination/pronation from January 9, 2020, forward, is denied. REMANDED Whether a separate rating is warranted for impaired finger movements and/or neurological impairment of the left upper extremity prior to January 9, 2020, is remanded. FINDINGS OF FACT 1. Prior to January 9, 2020, the Veteran’s left elbow disability was manifested by flexion limited to 115 degrees with pain, as well as functional loss with less movement than normal, excess fatigability, and pain on movement. 2. Prior to January 9, 2020, the Veteran’s impairment of the left forearm was manifested by supination and pronation limited to 70 degrees, with objective evidence of painful motion beginning at 70 degrees. 3. From January 9, 2020 forward, the Veteran’s combined rating for ankylosis of the left elbow with degenerative joint disease; limitation of supination/pronation of the left forearm; and left wrist strain is 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease of the left elbow with elbow strain prior to January 9, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5206, 5207, 5208. 2. The criteria for entitlement to an initial rating in excess of 50 percent for service-connected ankylosis of the left elbow with degenerative joint disease from January 9, 2020 forward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5205-5123, 5125. 3. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected impairment of the left forearm supination/pronation, prior to January 9, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213. 4. The criteria for entitlement to an initial rating in excess of 20 percent for service-connected impairment of the left forearm supination/pronation from January 9, 2020, forward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5205-5213, 5125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to December 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. This matter was previously remanded by the Board in December 2019 and June 2020 for further development. In a January 2020 rating decision, the Veteran’s service-connected degenerative joint disease of the left elbow with elbow strain was recharacterized as ankylosis of the left elbow with degenerative joint disease and he was awarded an increased 50 percent rating, effective January 9, 2020. The RO also awarded an increased rating of 20 percent for his service-connected impairment of the left forearm, supination/pronation, effective January 9, 2020. 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease of the left elbow with elbow strain prior to January 9, 2020, is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400 (o)(2). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2016); see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The provisions of § 4.40 and § 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). Additionally, with any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). From June 4, 2014 to January 8, 2020, the Veteran’s left elbow disability was rated as degenerative joint disease of the left elbow with elbow strain under DC 5003-5206, evaluated at 10 percent disabling. The Veteran's left extremity is his non-dominant or minor extremity, as reflected in a February 2015 VA examination report. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, 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. 38 C.F.R. § 4.71a. Normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. 38 C.F.R. § 4.71a. Plate I. Normal forearm pronation is from zero to 80 degrees. Id. Normal forearm supination is from zero to 85 degrees. Id. Under DC 5206, a 0 percent rating is warranted when forearm flexion of the minor arm is limited to 110 degrees; a 10 percent rating is warranted when forearm flexion of the minor arm is limited to 100 degrees; a 20 percent rating is warranted when forearm flexion is limited to 90 or 70 degrees; a 30 percent rating is warranted when forearm flexion is limited to 55 degrees; and a 40 percent rating is warranted when forearm flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5207 provides compensation for limitation of extension of the forearm. 38 C.F.R. § 4.71. Limitation of forearm extension to 45 degrees or to 60 degrees warrants a 10 percent rating for a minor arm. Limitation of forearm extension to 75 degrees or to 90 degrees warrants a 20 percent rating. Limitation of forearm extension to 100 degrees warrants a 30 percent rating. Limitation of forearm extension to 110 degrees warrants a 40 percent rating. Under DC 5208, a 20 percent rating contemplates a combination of flexion limited to 100 degrees and extension to 45 degrees in either forearm. A note following the relevant DCs provides that "[i]n all the forearm and wrist injuries, codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss of use of hand." 38 C.F.R. § 4.71a, DCs 5205-5213, Note. Loss of use of the hand is evaluated at 70 percent for the major hand, and 60 percent for the minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5125. The Veteran was afforded a VA examination in February 2015, where he was diagnosed with left elbow strain and degenerative joint disease of the left elbow. The VA examination report reflects that on range-of-motion testing, flexion of the elbow was limited to 115 degrees, and with pain at 110 degrees. After 3 repetitions, his flexion of the left elbow continued to be limited to 115 degrees. Extension of the elbow was limited to 20 degrees, and with pain at 20 degrees. After 3 repetitions, his extension of the left elbow continued to be limited to 20 degrees. The examiner noted functional loss in his left elbow, including less movement than normal, excess fatigability, and pain on movement. There was no ankylosis of the elbow. The examiner noted contributing factors of pain, weakness, fatigability and/or incoordination and that there was additional limitation of functional ability of the elbow joint during flare-ups or repeated use over time. The additional limitation was described as an inability to lift heavy objects due to pain and fatigability. VA outpatient treatment records show that the Veteran routinely complained of left elbow pain. Chronic swelling and tenderness were noted, and he was provided a soft splint. See VA treatment notes, dated November 17, 2014; December 2, 2014; January 30, 2015; March 21, 2016; August 19, 2016; August 14, 2018; October 19, 2018; October 1 and 17, 2019; November 19, 2019; and December 17, 2019. November 2019 and December 2019 physical therapy notes revealed left elbow flexion to 120 degrees and extension to 30 degrees with pain. Based on the evidence, the Board finds that an increased rating is not warranted for the Veteran's limitation of flexion of the left elbow prior to January 9, 2020. At worst, flexion of the left elbow was limited to 115 degrees, which does not meet the criteria for even a 0 percent rating under DC 5206. The Veteran’s current 10 percent rating under DC 5206 is based upon arthritis with functional loss, including pain, weakness, fatigability and/or incoordination and additional limitation of functional ability of the elbow joint during flare-ups or repeated use over time. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). At no time was flexion of the elbow limited to 70 or 90 degrees so as to warrant the assignment of a 20 percent rating under DC 5206. The Board does not find that additional, separate or higher ratings are warranted for the Veteran's left elbow disability under DC 5207 or 5208. At worst, extension of the Veteran’s left elbow was limited to 30 degrees. At no time was extension of the elbow limited to 45 or 60 degrees so as to warrant the assignment of a separate 10 percent rating under DC 5207. Further, to assign a separate rating under DC 5207 based upon painful extension of the left elbow would amount to pyramiding because, as explained above, the 10 percent rating assigned under Diagnostic Code 5206 contemplates painful motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. At no time did the Veteran exhibit a combination of flexion limited to 100 degrees and extension to 45 degrees in the left forearm so as to warrant a 20 percent rating under DC 5208. As noted above, at worst flexion of the left elbow was limited to 115 degrees, and extension was limited to 30 degrees. Thus, entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left elbow with elbow strain prior to January 9, 2020 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5206, 5207, 5208. 2. Entitlement to an initial rating in excess of 10 percent for service-connected impairment of the left forearm supination/pronation, prior to January 9, 2020, is denied. The Veteran’s service-connected impairment of the left forearm supination/pronation is rated under DC 5213, evaluated as 10 percent disabling from June 4, 2014 through January 8, 2020. Under DC 5213, a 30 percent rating is assigned when the hand is fixed in supination or hyperpronation with respect to the minor extremity. A 20 percent rating is assigned for the minor extremity when the hand is fixed in full pronation or near the middle of the arc or moderate pronation, or when there is loss of pronation from beyond the middle of the arc (i.e., 40 degrees) or beyond the last quarter of the arc (i.e., 20 degrees), where the hand does not approach full pronation. Limitation of supination to 30 degrees or less is assigned a 10 percent rating for both arms. Normal forearm supination is from 0 to 85 degrees, and normal forearm pronation is from 0 to 80 degrees. See 38 C.F.R. § 4.71. The Veteran was afforded a VA examination in February 2015, where he had both supination and pronation of his left forearm limited to 70 degrees, with objective evidence of painful motion beginning at 70 degrees. There was no change in his ROM after repetitive testing. Based on the evidence, the Board finds that an increased rating in excess of 10 percent is not warranted for the Veteran's left forearm supination/pronation prior to January 9, 2020. His left forearm was not fixed in either pronation or supination. Nor was there a loss of pronation from beyond the middle of the arc (i.e., 40 degrees) or beyond the last quarter of the arc (i.e., 20 degrees), where the hand did not approach full pronation. At noted above, the Veteran had both supination and pronation of his left forearm to 70 degrees. The Veteran’s current 10 percent rating under DC 5213 is based upon arthritis with functional loss, including pain, weakness, fatigability and/or incoordination and additional limitation of functional ability of the elbow joint during flare-ups or repeated use over time. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). At no time was supination or pronation limited to an extent so as to warrant the assignment of a 20 percent rating under DC 5213. Thus, entitlement to an initial rating in excess of 10 percent for left forearm supination/pronation prior to January 9, 2020 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5213. 3. Entitlement to an initial rating in excess of 50 percent for service-connected ankylosis of the left elbow with degenerative joint disease (previously rated as degenerative joint disease of the left elbow with elbow strain) from January 9, 2020 forward, is denied. 4. Entitlement to an initial rating in excess of 20 percent for service-connected impairment of the left forearm supination/pronation, from January 9, 2020, forward, is denied. As of January 9, 2020, the Veteran's left elbow/forearm disability is currently being compensated as follows: 50 percent for ankylosis of the left elbow with degenerative joint disease (Diagnostic Code 5205); 20 percent for limitation of supination/pronation (Diagnostic Code 5213); and 10 percent for left wrist strain (Diagnostic Code 5215); for a combined evaluation of 60 percent disabling. As noted in the Note following the Diagnostic Codes for the elbow and forearm, codes 5205 through 5213, the combined rating for impairment under these provisions and for nerve or muscle impairment ratings related to these disabilities, must not exceed the rating for loss of use of the hand, in this case 60 percent for the minor hand. 38 C.F.R. § 4.71a, Diagnostic Codes 5125, 5205-5213. Thus, an increased rating over 50 percent for ankylosis of the left elbow with degenerative joint disease or an increased rating over 20 percent for left forearm supination/pronation would render his combined rating above 60 percent, is prohibited by the Note. As such, the Veteran's claims for increased ratings from January 9, 2020, forward must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Whether a separate rating is warranted for impaired finger movements and/or neurological impairment of the left upper extremity prior to January 9, 2020, is remanded. Unfortunately, an additional remand is required. During his hearing in September 2019, the Veteran testified that his left elbow disorder was manifested by neurological symptoms. As noted above, the Note following the Diagnostic Codes for the elbow and forearm provides that multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss of use of hand. Prior to January 9, 2020, the Veteran's left elbow/forearm disability was rated as follows: 10 percent for left elbow degenerative joint disease (Diagnostic Code 5206); 10 percent for limitation of supination/pronation (Diagnostic Code 5213); and 10 percent for left wrist strain (Diagnostic Code 5215); for a combined evaluation of 30 percent disabling. This combined rating does not exceed the rating for loss of use of the hand, in this case 60 percent for the minor hand. 38 C.F.R. § 4.71a, Diagnostic Codes 5125, 5205-5213. Treatment records show that the Veteran was diagnosed as having left radial and median neuropathy in September 2014. See EMG report from Carolina Neurology Associates, dated September 3, 2014. A VA treatment note dated March 21, 2016 reveals a diagnosis of chronic left ulnar nerve pain. On June 25, 2018, the Veteran complained of pain in his right 3rd-5th fingers and tingling in the fingers for three hours. He stated that sometimes he was unable to straighten the fingers due to the pain. On December 17, 2019, he complained of numbness in the 4th and 5th fingers. On remand in December 2019, the Board instructed that the Veteran be afforded a VA examination of his left elbow disorder. The examiner was requested to provide a full description of the disability and report all signs and symptoms, including any neurological symptoms. While the Veteran was afforded a VA examination in January 2020, there was no acknowledgement of the Veteran’s reported neurological symptoms. As such, remand for an addendum medical opinion is required. The matter is REMANDED for the following action: Obtain an addendum medical opinion concerning the Veteran’s service-connected left elbow disability. After reviewing the Veteran’s file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that, prior to January 9, 2020, the Veteran had any impaired finger movements and/or neurological impairment of the left upper extremity as a residual of his service-connected degenerative joint disease of the left elbow with elbow strain. If so, the examiner should describe the extent and severity of those manifestations. In providing this opinion, the examiner should consider the following: • the EMG report from Carolina Neurology Associates, dated September 3, 2014, showing left radial and median neuropathy; • the VA treatment note dated March 21, 2016 showing a diagnosis of chronic left ulnar nerve pain; • the VA treatment note dated June 25, 2018, showing that the Veteran complained of pain in his right 3rd-5th fingers and tingling in the fingers for three hours, also noting that he sometimes he was unable to straighten the fingers due to the pain; and • the VA treatment note dated December 17, 2019, showing that the Veteran complained of numbness in the 4th and 5th fingers. The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.