Citation Nr: 21003631 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-18 796 DATE: January 22, 2021 ORDER A rating in excess of 10 percent for left elbow olecranon bursitis is denied. A rating in excess of 10 percent prior to September 10, 2020 for left cubital tunnel syndrome with ulnar neuropathy is denied. A rating in excess of 20 percent for left cubital tunnel syndrome with ulnar neuropathy from September 10, 2020 forward is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left elbow olecranon bursitis has manifested with painful motion, swelling, and flexion limited to no less than 140 degrees. 2. Prior to September 10, 2020 the Veteran’s left cubital tunnel syndrome with ulnar neuropathy has been manifested by mild incomplete paralysis. 3. From September 10, 2020 forward, the Veteran’s left cubital tunnel syndrome with ulnar neuropathy has been manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left elbow olecranon bursitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5019-5206. 2. The criteria for a rating in excess of 10 percent for left cubital tunnel syndrome with ulnar neuropathy, prior to September 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 8516. 3. The criteria for a rating in excess of 20 percent for left cubital tunnel syndrome with ulnar neuropathy from September 10, 2020 forward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2008 to August 2008 and from September 2008 to August 2009 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in April 2020, the Board remanded these matters for further evidentiary development. The Board finds the prior remand directives have been completed and the claims are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal in a September 2020 rating decision service connection was granted for a low back disability effective August 8. 2009. As such represents a full grant of benefits sought on appeal this claim is no longer before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. As required by38C.F.R. §4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald,28 Vet. App. 158 (2016). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, 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. Left Elbow Olecranon Bursitis The Veteran’s left elbow olecranon bursitis is evaluated under hyphenated Diagnostic Code 5019-5206. This disability is currently evaluated at 10 percent, effective August 8, 2009. The Veteran disagrees with the initial evaluation. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38C.F.R. §4.27. Diagnostic Code 5019 addresses bursitis, which directs that evaluations be based on limitation of motion of the affected parts. Diagnostic Code 5206 addresses limitation of flexion of the forearm. See 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5206. Under Diagnostic Code 5206, a 10 percent rating is assigned for flexion limited to 100 degrees. A 20 percent rating is assigned with flexion limited to 90 degrees. A 30 percent rating is assigned for flexion limited to 70 degrees. A 40 percent rating is assigned for flexion limited to 55 degrees. A maximum 50 percent rating is assigned for flexion limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206. For VA purposes, elbow flexion and extension are measured from 0 degrees to 145 degrees. 38 C.F.R. § 4.71a, Plate I. The Veteran was afforded a VA examination in October 2009. Examination revealed tender left elbow with effusion, questionable cartilaginous deformity and slight erythema. There was no joint ankylosis and no evidence of inflammatory arthritis. Active range of motion was noted as flexion to 140 degrees and extension -5 degrees. The Veteran experienced pain on motion. At the conclusion of the examination, the examiner commented that the Veteran “had a joint aspiration just last week, potentially influencing today’s examination findings due to a temporary intervention. Further orthopedic and neurologic investigation is planned with the possibility of definitive surgical intervention. A review of this condition six months after any procedure would help define the nature and severity of any permanent elbow condition.” During a March 2013 VA examination, the Veteran was diagnosed with olecranon bursitis status post bursectomy of the left elbow. He denied flare-ups of the elbow and/or forearm. Left elbow flexion was 145 degrees or greater. Extension was normal. The Veteran did not have additional limitation in range of motion of the elbow and forearm following repetitive-use testing. The Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the elbow and forearm after repetitive use contributed by pain on movement. He had localized tenderness or pain on palpation of joints/soft tissue of the left elbow. Muscle strength testing was normal. The Veteran did not have ankylosis of the elbow. He did not have flail joint, joint fracture and/or impairment of supination or pronation. He did not have degenerative or traumatic arthritis of the elbow. The Veteran’s left elbow condition did not impact his ability to work. In February 2018, the Board remanded the Veteran’s claim for a new examination. The Board determined the March 2013 VA examination did not comply with the requirements of Correia v. McDonald because the examination did not contain passive range of motion measurements and pain on weight-bearing testing. See February 2018 Decision. Pursuant to the most recent April 2020 Board remand, the Veteran underwent VA examination in September 2020. He was diagnosed with left nerve transposition with cubital tunnel syndrome. He complained of constant pain and a feeling of the left arm falling asleep. These neurological symptoms awakened him at night. The Veteran reported that his treatment included physical therapy and wearing a compression sleeve, none of which he improved his symptoms. He did not report flare-ups. He did report functional loss or impairment of the left elbow due to left elbow pain when lifting and using tools that aggravate the left elbow. All range of motion testing was normal. Pain was noted on examination and caused functional limitation upon flexion, extension, forearm supination, and forearm pronation. There was objective evidence of moderate to severe localized tenderness or pain on palpation of the joint or associated soft tissue in the left posterior elbow. There was evidence of pain with weight bearing. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. There was pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. Pain caused this functional loss. Neither pain, weakness, fatigability nor incoordination significantly limited functional ability with flare ups. Muscle strength testing was normal. The Veteran did not have ankylosis. flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. He did not report the use of any assistive devices. Due to the Veteran’s left elbow condition, there was no functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the Veteran’s left elbow disability limited his ability to perform any occupational tasks that involved lifting and using tools as such aggravates his left elbow pain. Regarding Correia, there was objective evidence of pain when the left elbow was used in non-weight bearing. Passive range of motion testing results for the left elbow were the same when tested following active range of motion.” When asked to specify the plane(s) of range of motion involved, if objective evidence of pain is present on passive range of motion, the examiner indicated it was the same as active range of motion. Upon review, the evidence of record does not demonstrate the Veteran had flexion consistent with a 20 percent rating at any point during the period on appeal. He has retained flexion in excess of 90 degrees during the three VA examinations. He has not been shown to have flexion limited to 90 degrees or less that would warrant a rating in excess of the currently assigned 10 percent. Where a diagnostic code is predicated on loss of motion, VA must also consider 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination, or pain on movement of a joint. DeLuca, 8 Vet. App. 202. Here, a rating in excess of 10 percent for the Veteran’s left elbow olecranon bursitis is not warranted based on functional loss due to pain or weakness. The Board recognizes that at the March 2013 and September 2020 VA examinations the Veteran had no additional limitation of motion after repetitive use testing and retained normal muscle strength. Additionally, the Veteran was assigned an initial 10 percent initial rating pursuant to 38 C.F.R. § 4.45 due to said painful motion. Pain contributes to functional loss, but functional loss more closely approximating the criteria of a 20 percent rating or higher has not been shown. A higher rating is not warranted based on painful motion alone. Review of the Veteran’s VA treatment records reflect no indication that the range of motion in the left elbow has ever been restricted to 90 degrees or less. The record contains no evidence showing that the Veteran’s left elbow olecranon bursitis rises to the level of assignment of a 20 percent rating. The Board has also considered the Veteran’s representative contentions in particular his November 2020 correspondence. The Veteran’s representative generally contends that an increased rating is warranted for his left elbow due to an increasing severity of the Veteran’s symptoms. However, the Board finds these contentions are not supported by the probative evidence of record. The representative did not cite any records, communications from the Veteran, or other factors to support a worsening of symptoms or symptoms not contemplated in the rating criteria, and the Board finds none of these in the record. Further, VA benefits may not be granted based on speculative opinions. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § § 3.102 (2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. A separate evaluation under Diagnostic Code 5207 may be assigned for limited extension of the forearm. However, no separate rating for limitation of extension is warranted. The evidence of record consistently demonstrates normal extension of the left forearm and does not show extension limited to a compensable degree during the period on appeal. Additionally, the evidence does not show that the Veteran has left elbow ankylosis, that he has impairment of the flail joint, or that he has any impairment of the ulna or radius. Accordingly, Diagnostic Codes 5205, and 5207 through 5212, are not for application. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. 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. Here, the Veteran has not specifically identified any left elbow symptoms which would merit a higher schedular rating under Diagnostic Code 5206. The left elbow symptoms that have been described, mainly pain and a limited range of motion, are consistent with the assigned rating. Accordingly, the criteria for a rating in excess of 10 percent for the Veteran’s left elbow olecranon bursitis have not been met, and the claim is denied. Left Cubital Tunnel Syndrome with Ulnar Neuropathy The Veteran was initially rated under DC 8516 at 10 percent for ulnar neuropathy of left elbow from August 8, 2009. Currently, he is rated at 20 percent effective September 10, 2020. The Veteran reports that he is entitled to a higher initial rating of 10 percent prior to September 10, 2020, and in excess 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 connected disability 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 Veteran was afforded a VA examination in October 2009. The examiner noted a history of weakness or paralysis as ulnar-innervated left arm. There was a history of numbness and tingling ulnar left hand. Summary of the Veteran’s hand examination revealed impaired strength or dexterity due to the left ulnar nerve injury. There was no angulation, ankylosis or amputation of one or more digits of the left hand. During a March 2013 VA examination, the Veteran was diagnosed with left ulnar neuropathy status post-surgical transposition. He reported having numbness and tingling in the ulnar aspect of the forearm. He described losing strength in the forearm with progressive use of his grip. Driving and placing pressure on it bothered him. It did not bother him at night. He was currently taking nothing for the pain, no sleeve, brace or padding use. His symptoms included mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the left upper extremity. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex and sensory examination were normal. Gait was normal. He did not use any assistive devices. Due to his peripheral nerve condition, there was no functional impairment of an extremity such that no effective functioned remained other than that which would be equally served by an amputation with prosthesis. The Veteran’s peripheral nerve condition did not impact his ability to work. Most recently, the Veteran underwent VA examination in September 2020. He was diagnosed with left cubital tunnel syndrome with left ulnar neuropathy. He reported symptoms of constant pain and a feeling of the left arm falling asleep. These neurological symptoms awakened him at night. The Veteran reported that his treatment included physical therapy and wearing a compression sleeve, none of which he improved his symptoms. The examiner noted symptoms of moderate constant pain and numbness of the left upper extremity. Muscle strength testing was normal. He did not have muscle atrophy. Reflex examination was normal. Sensory examination revealed decreased sensation testing for light touch of the left inner/outer forearm (C6/T1) and of the left hand/fingers (C6-8). The Veteran did not have trophic changes and his gait was normal. The examiner indicated the Veteran had moderate incomplete paralysis of the ulnar nerve. The Veteran did not report the use of any assistive devices. Due to the Veteran’s peripheral neuropathy condition, there was no functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that the Veteran’s peripheral neuropathy condition impacted his ability to work resulting in impairment of lifting and carrying with the left upper extremity. The Board has also considered the Veteran’s representative contentions in particular November 2020 correspondence. The Veteran’s representative generally contends that an increased rating is warranted for his left cubital tunnel syndrome with ulnar neuropathy due to an increasing severity of the Veteran’s symptoms. However, the Board finds these contentions are not supported by the probative evidence of record. The representative did not cite any records, communications from the Veteran, or other factors to support a worsening of symptoms or symptoms not contemplated in the rating criteria, and the Board finds none of these in the record. Further, VA benefits may not be granted based on speculative opinions. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § § 3.102 (2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. The Board finds that an initial rating higher than 10 percent prior to September 10, 2020 and a rating higher than 20 percent thereafter is not warranted for his left cubital tunnel syndrome with ulnar neuropathy. By way of an April 2010 rating decision, the Veteran was granted a noncompensable rating effective August 8, 2009. A noncompensable evaluation was assigned unless there was incomplete paralysis of finger and wrist movements which was mild. The RO later increased the rating to 10 percent from August 8, 2009 due to mild incomplete paralysis of the minor extremity. See VA medical examinations (October 2009 and March 2013). Most recently, the RO increased the rating to 20 percent effective September 10, 2020 due to moderate incomplete paralysis of the minor extremity. The records and VA examinations do not reflect any moderate incomplete paralysis of the left elbow from prior to September 10, 2020. See VA medical examinations (October 2009 and March 2013). Therefore, an increase rating in excess of 10 percent prior to September 10, 2020 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 September 10, 2020 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 prior to September 10, 2020 and a rating higher than 20 percent thereafter is not warranted for his left cubital tunnel syndrome with ulnar neuropathy and therefore it must be denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.