Citation Nr: 21001596 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-04 663 DATE: January 11, 2021 ORDER Entitlement to a rating in excess of 30 percent for limitation of pronation due to right elbow chondromalacia, from January 17, 2020, is denied. Entitlement to a rating in excess of 20 percent disabling for right elbow chondromalacia, from January 17, 2020, is denied. Entitlement to a rating in excess of 20 percent disabling for subclinical ulnar nerve irritation involving the cubital tunnel, claimed as left elbow pain, from March 28, 2016, is granted. REMANDED Entitlement to a rating in excess of 20 percent for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020, is remanded. Entitlement to a rating in excess of 10 percent for right elbow chondromalacia, prior to January 17, 2020, is remanded. FINDINGS OF FACT 1. For the period from January 17, 2020, the Veteran’s right elbow disability manifested as the right hand being fixed near the middle of the arc or moderate pronation. 2. For the period from January 17, 2020, the Veteran’s right elbow chondromalacia was not manifested as right forearm flexion limited to 70 degrees. 3. For the period from March 28, 2016, the Veteran’s subclinical ulnar nerve irritation involving the cubital tunnel was manifested by no more than severe incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for limitation of pronation from January 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5213 (2016). 2. The criteria for a rating in excess of 20 percent for right elbow chondromalacia from January 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5206. 3. The criteria for a rating of 30 percent, but no higher, for subclinical ulnar nerve irritation involving the cubital tunnel from March 28, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to October 1998. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013, October 2018, and July 2020 rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of This case was before the Board in June 2019. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 30 percent for limitation of pronation due to right elbow chondromalacia from January 17, 2020 is denied. In an October 2018 rating decision, the RO granted service connection for limitation of pronation due to right elbow chondromalacia. A 20 percent rating was assigned, effective March 28, 2016, under Diagnostic Code 5213. In a July 2020 rating decision, the RO increased the rating for the right elbow disability to 30 percent, effective January 17, 2020. The increase was granted based on limitation of pronation of the right hand as motion lost beyond the middle of the arc. The Veteran contends that he is entitled to a higher rating due to the severity of the symptoms related to his right elbow chondromalacia. The rating criteria distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. The Veteran is shown to be right-handed, so the criteria for the major extremity are applicable. Diagnostic Code 5213 applies to impairment of supination and pronation. 38 C.F.R. § 4.71a. Under Diagnostic Code 5213, a 40 percent rating is assigned when the hand is fixed in supination or hyperpronation with respect to the major extremity. A 30 percent rating is assigned for the major extremity when the hand is fixed in full pronation or when there is loss of pronation from beyond the middle of the arc for the major extremity. A 20 percent rating is assigned where the hand is fixed near the middle of the arc or moderate pronation, or motion lost beyond the last quarter of the arc, where the hand does not approach full pronation with respect to the major extremity. Limitation of supination to 30 degrees or less is assigned a 10 percent rating for both arms. Id. The Veteran was afforded a VA elbow examination in January 2020. The examiner reported the right hand was fixed near the middle of the arc or moderate pronation. The Veteran did not report having flare ups. The Veteran reported functional impairment as “[c]annot do heavy pushing and pulling.” The Veteran’s range of motion of the right elbow was flexion from 0 to 120 degrees, extension from 120 to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation from 0 to 20 degrees. There was pain noted on the examination that caused functional loss with all movements. There was evidence of pain on weight-bearing. There was no ankylosis, crepitus, or localized tenderness or pain on palpation. The examination was not being conducted immediately after repetitive use over time. The examiner reported that pain significantly limited functional ability of the right elbow with repeated use over a period of time. The examiner described the functional loss with repeated use over time as follows: flexion from 0 to 90 degrees, extension from 90 to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation was 0 to 20 degrees. The examination was not being conducted immediately after a flare up. The examiner reported that pain, weakness, fatigability, and lack of endurance do not significantly limit functional ability during flare ups. The examiner reported that he was unable to test the left elbow as the Veteran recently had left ulna transposition surgery and was still recuperating. Therefore, the examiner concluded that his left elbow range of motion was not reliable at the time of the examination. Muscle strength testing was 5/5, which was described as normal strength. The examiner reported that the Veteran did not exhibit atrophy, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination. As the preponderance of the evidence does not show that the Veteran’s right hand was fixed in supination or hyperpronation, the criteria for a rating in excess of 30 percent under Diagnostic Code 5213 for the Veteran’s right elbow chondromalacia are not satisfied from January 17, 2020. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a rating in excess of 20 percent disabling for right elbow chondromalacia from January 17, 2020 is denied. In a November 1999 rating decision, the RO granted service connection for right elbow chondromalacia. A 10 percent rating was assigned, effective October 5, 1998, under Diagnostic Code 5016. The RO denied a rating in excess of 10 percent in May 2009 and May 2013 rating decisions. The Veteran filed his current claim for an increased rating in December 2010. In a July 2020 rating decision, the RO increased the rating for the right elbow chondromalacia to 20 percent, effective January 17, 2020, under Diagnostic Code 5016-5206. The increase was granted based on limitation of right forearm flexion of 71 to 90 degrees. The Veteran contends that he is entitled to a higher rating due to the severity of the symptoms related to his right elbow chondromalacia. Diagnostic Code 5206 applies to limitation of flexion of the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5206. As previously described, the Veteran is shown to be right-handed, so the criteria for the major extremity are applicable. Under Diagnostic Code 5206, a rating of 0 percent is assigned for majority forearm flexion limited to 110 degrees. A rating of 10 percent is assigned for majority forearm flexion limited to 100 degrees. A rating of 20 percent is assigned for majority forearm flexion limited to 90 degrees. A rating of 30 percent is assigned for majority forearm flexion limited to 70 degrees. A rating of 40 percent is assigned for majority forearm flexion limited to 55 degrees. A rating of 50 percent is assigned for majority forearm flexion limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. The Veteran was afforded a VA elbow examination in January 2020. The Veteran reported that he did not experience flare ups of the elbow or forearm. The Veteran reported functional impairment as “[c]annot do heavy pushing and pulling.” The Veteran’s range of motion of the right elbow was flexion from 0 to 120 degrees, extension from 120 to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation from 0 to 20 degrees. There was pain noted on the examination that caused functional loss with all movements. There was evidence of pain on weight-bearing. There was no ankylosis, crepitus, or localized tenderness or pain on palpation. The examination was not being conducted immediately after repetitive use over time. The examiner reported that pain significantly limited functional ability of the right elbow with repeated use over a period of time. The examiner described the functional loss with repeated use over time as follows: flexion from 0 to 90 degrees, extension from 90 to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation was 0 to 20 degrees. The examination was not being conducted immediately after a flare up. The examiner reported that pain, weakness, fatigability, and lack of endurance do not significantly limit functional ability during flare ups. The examiner reported that he was unable to test the left elbow as the Veteran recently had left ulna transposition surgery and was still recuperating. Therefore, the examiner concluded that his left elbow range of motion was not reliable at the time of the examination. Muscle strength testing was 5/5, which was described as normal strength. The examiner reported that the Veteran did not exhibit atrophy, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination. The examiner reported the right hand was fixed near the middle of the arc or moderate pronation. The Veteran did not report having flare ups. As the evidence does not show that the Veteran’s right hand was fixed in supination or hyperpronation, the criteria for a rating in excess of 30 percent under Diagnostic Code 5213 are not satisfied from January 17, 2020. From January 17, 2020, the Board finds that a disability rating in excess of 20 percent for limitation of forearm flexion due to right elbow chondromalacia is not warranted. During this period, the evidence indicates that the January 2020 examiner described the functional loss with repeated use over time as right forearm flexion from 0 to 90 degrees, which does not approximate the level of impairment (70 degrees) required for a 30 percent disability rating under Diagnostic Code 5206. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 20 percent for the Veteran’s right elbow limitation of flexion from January 17, 2020. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to a rating in excess of 20 percent disabling for subclinical ulnar nerve irritation involving the cubital tunnel, from March 28, 2016, is granted. In a May 2004 rating decision, the RO granted service connection for subclinical ulnar nerve irritation involving the cubital tunnel, claimed as left elbow pain. A 10 percent rating was assigned, effective October 5,1998, under Diagnostic Code 5213-8515. The Veteran filed his current claim for an increased rating in December 2010. In an October 2018 rating decision, the RO increased the rating for the service-connected subclinical ulnar nerve irritation involving the cubital tunnel to 20 percent, effective March 28, 2016, and recharacterized the Diagnostic Code as 8516. In June 2019, the Board denied entitlement to a rating in excess of 10 percent for subclinical ulnar nerve irritation involving the cubital tunnel prior to March 28, 2016 and remanded a claim for entitlement to a rating in excess of 20 percent for the period beginning March 28, 2016. Diagnostic Code 8516 provides ratings for paralysis of the ulnar nerve. A 10 percent disability rating is warranted for mild paralysis of the ulnar nerve in the major (dominant) upper extremity or minor (non-dominant) upper extremity. A 30 percent disability rating is warranted for moderate paralysis of the ulnar nerve in the major upper extremity; a 20 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve in the minor upper extremity. A 40 percent disability rating is warranted for severe incomplete paralysis of the ulnar nerve in a major upper extremity; 30 percent rating is warranted for severe incomplete paralysis of the ulnar nerve in a minor upper extremity. A 60 percent disability rating (the maximum) is warranted for complete paralysis of the ulnar nerve in the major upper extremity; a 50 percent rating is warranted for complete paralysis of the ulnar nerve in the minor upper extremity. Complete paralysis contemplates the “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; and flexion of wrist weakened 38 C.F.R. § 4.124a, Diagnostic Code 8516. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture 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. 38 C.F.R. § 4.124a. The Veteran was afforded a VA examination of his peripheral nerves in March 2016. The examiner diagnosed the Veteran with bilateral subclinical ulnar nerve irritation involving the cubital tunnel. The Veteran reported that he experienced left elbow numbness and tingling from elbow to fingertips. The Veteran had normal reflexes of the upper extremities. He had decreased sensation in his forearms, hands, and fingers. The examiner reported that the Veteran experienced severe constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness in his left upper extremity. There was no muscle atrophy. The examiner reported the Veteran had moderate incomplete paralysis of the ulnar nerve. An April 2018 VA medical record reported that a March 2018 electromyography showed the Veteran had chronic changes to his left ulnar nerve with severe neuropathy. At the Veteran’s January 2019 Board hearing, the Veteran testified that he experienced constant burning pain in his two left middle fingers that radiated through his wrist. He also testified that he was unable to grab small items. The Veteran was afforded a VA examination of his peripheral nerves in January 2020. The examiner diagnosed the Veteran with left subclinical ulnar nerve irritation involving the cubital tunnel. Deep tendon reflexes of the left brachioradialis were hypoactive. The examiner reported that the Veteran experienced neither constant nor intermittent pain of the left upper extremity, but experienced severe numbness and severe paresthesias and/or dysesthesias in his left upper extremity. The Veteran experienced decreased sensation to light touch in his left upper extremity. There was no muscle atrophy. The examiner reported the Veteran had mild incomplete paralysis of the ulnar nerve. After a review of the lay and medical evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s left ulnar nerve disability results in severe incomplete paralysis. Although the March 2016 examiner reported the Veteran had moderate incomplete paralysis of the ulnar nerve, she reported that the Veteran experienced severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in his left upper extremity. A March 2018 electromyography showed the Veteran had chronic changes to his left ulnar nerve with severe neuropathy. In January 2019, the Veteran testified that he experienced constant burning pain in his two left middle fingers that radiated through his wrist. Although the January 2020 examiner reported the Veteran had mild incomplete paralysis of the ulnar nerve, he reported that the Veteran experienced severe numbness and severe paresthesias and/or dysesthesias in his left upper extremity. However, the evidence does not support that the Veteran’s left ulnar nerve disability manifested as complete paralysis during the period on appeal. In consideration of the analysis presented above, entitlement to a 30 percent rating, but no higher, for subclinical left ulnar nerve irritation involving the cubital tunnel (the Veteran’s minor extremity) is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020, is remanded. 2. Entitlement to a rating in excess of 10 percent for right elbow chondromalacia, prior to January 17, 2020, is remanded. A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims for increased ratings related to the Veteran’s service-connected right elbow disabilities. In a November 1999 rating decision, the RO granted service connection for right elbow chondromalacia and assigned a 10 percent rating, effective October 5, 1998, under Diagnostic Code 5016. The Veteran filed his current claim for an increased rating in excess of 10 percent for his right elbow chondromalacia in December 2010. Subsequently, in an October 2018 rating decision, the RO granted service connection for another right elbow chondromalacia disability, limitation of pronation under Diagnostic Code 5213. A 20 percent rating was assigned, effective March 28, 2016. In a July 2020 rating decision, the RO increased (1) the rating for the right elbow chondromalacia limitation of pronation from 20 percent to 30 percent, effective January 17, 2020, and (2) the increased the rating for the right elbow chondromalacia based on limitation of right forearm flexion from 10 percent to 20 percent, effective January 17, 2020 . The Veteran contends that he is entitled to increased ratings for his right elbow chondromalacia disabilities prior to January 17, 2020. The Veteran was afforded VA elbow and forearm examinations in May 2013 and March 2016 that did not comply with the holding of the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. The examiners failed to include range of motion testing in passive motion, weight-bearing, and non-weight-bearing circumstances. The Board finds that the August 2018 VA elbow and forearm examination was also inadequate as the examiner failed to estimate the degree of additional range-of-motion loss during flare-ups or after repeated use. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the August 2018 examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinions. In consideration of the inadequacies of the May 2013, March 2016, and August 2018 VA examinations, the Board finds that a remand is warranted for a new VA examination to provide a retrospective opinion, if possible, as to the severity of the Veteran’s service-connected right elbow chondromalacia disabilities during the appellate period, which is up to one year prior to the filing of the increased rating claim for his right elbow disability in December 2010. Notably, once VA undertakes the effort to provide an examination when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Obtain an addendum retrospective medical opinion from the examiner who conducted the August 2018 elbow and forearm VA examination, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this remand. 4. If possible, the examiner should provide a retrospective opinion regarding whether joint testing of the Veteran’s right elbow and forearm would have shown objective evidence of pain in passive motion and in non-weight-bearing motion from December 2009 to January 2020. In the opinion, the examiner should also address any functional limitations of the Veteran’s right elbow disability due to repetitive use and flare ups based on the Veteran’s lay statements of experienced symptomatology. 5. If it is not possible to provide a retrospective opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 6. Upon completion of the above actions, readjudicate the claims. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999 (Continued on the next page)   These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.