Citation Nr: 21069105
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 16-54 846
DATE: November 17, 2021

ORDER

Entitlement to an initial rating in excess of 30 percent for left elbow epicondylitis with limited extension, claimed as a left arm condition, is denied.

Entitlement to an initial rating in excess of 20 percent for left partial bicep tear/tendonitis, claimed as a left arm condition, is denied.

Entitlement to an initial rating in excess of 10 percent for left elbow epicondylitis with painful motion of supination and pronation, claimed as a left arm condition, is denied.

Entitlement to an initial compensable rating for left elbow epicondylitis with limited flexion, claimed as a left arm condition, prior to July 29, 2021, and 10 percent, thereafter, is denied.

FINDINGS OF FACT

1. The Veteran's left elbow epicondylitis with limited extension does not result in extension limited to 110 degrees.

2. The Veteran's left partial bicep tear/tendonitis does not result in limitation to 25 degrees from the side.

3. The Veteran's left elbow disability does not result in limitation of pronation such that motion was lost beyond the last quarter of arc with the hand not approaching full pronation.

4. The Veteran's left elbow epicondylitis with limited flexion does not result in flexion limited to 90 degrees.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent for left elbow epicondylitis with limited extension, claimed as a left arm condition, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5207.

2. The criteria for an initial rating in excess of 20 percent for left partial bicep tear/tendonitis, claimed as a left arm condition, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5201.

3. The criteria for an initial rating in excess of 20 percent for left partial bicep tear/tendonitis, claimed as a left arm condition, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5213.

4. The criteria for an initial compensable rating for left elbow epicondylitis with limited flexion, claimed as a left arm condition, prior to July 29, 2021, and 10 percent, thereafter, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5206.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from October 1985 to October 1989, from September 1997 to May 1998, and from October 2003 to May 2005.

The issues on appeal come before the Board on appeal from an October 2014 rating decision, which awarded service connection for the Veteran's left elbow disabilities. 

The Veteran testified at a Board hearing at the local Regional Office before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been associated with the record.

In June 2021, the Board remanded the issues addressed herein for further development.

In an August 2021 rating decision, the Veteran's rating for left elbow epicondylitis with limited flexion was increased to 10 percent, effective July 29, 2021. As this increase did not represent a full grant of the benefits sought, the Veteran's appeal has not been abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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 veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, 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 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. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

The musculoskeletal aspects of the Veteran's right elbow disability are currently rated under the DC 5206, DC 5207, DC 5213 and 5201 diagnostic codes. Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69. The Board notes that the record, including all the VA examinations, indicates that the Veteran is right hand dominant.  As such, the provisions related to the minor extremity are applicable to the instant case.

Under DC 5206, limitation of flexion of either the major or minor forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of either forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major and minor forearm to 70 degrees warrants 30 and 20 percent ratings, respectively; limitation of flexion of the major and minor forearm to 55 degrees warrants 40 and 30 percent ratings, respectively; and limitation of flexion of the major and minor forearm to 45 degrees warrants 50 and 40 percent ratings, respectively.

Under DC 5207, a 10 percent rating is assigned for extension in either the major or minor extremity limited to 60 degrees; a 20 percent rating is assigned with extension in either the major or minor extremity limited to 75 degrees, and, relevant here, a 30 percent rating is assigned for extension in the minor extremity limited to 100 degrees; and a 40 percent rating is assigned for extension in the minor extremity limited to 110 degrees.

Under DC 5213, impairment of supination and pronation of the major and minor forearms are assigned a 10 percent evaluation for limitation of supination to 30 degrees or less. A 20 percent evaluation is warranted for limitation of pronation with motion lost beyond the last quarter of the arc and where the hand does not approach full pronation. For the major elbow, a 30 percent rating is assigned when motion is lost beyond the middle arc, and for the minor elbow, a 20 percent rating is assigned. A 20 percent evaluation is also assigned for loss of supination or pronation (bone fusion) where the hand is fixed near the middle of the arc or moderate pronation in both the major and minor elbow. When the hand is fixed in full pronation, a 30 percent rating is warranted for the major elbow and a 20 percent rating for the minor elbow. When the hand is fixed in supination or hyperpronation, a 40 percent rating is granted for the major elbow and a 30 percent rating for the minor elbow.

Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71, Plate I.

The Veteran's left partial bicep tear/tendonitis is rated under Diagnostic Codes 5010-5201. Hyphenated codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The hyphenated diagnostic codes in this case indicate that post-traumatic arthritis under Diagnostic Code 5010 is the service-connected disorder and that limitation of motion of the arm under Diagnostic Code 5201 is the residual condition.

In this regard, Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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. 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, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under Diagnostic Code 5201, limitation of arm motion that is limited to shoulder level warrants a 20 percent rating in the minor extremity. Such limitation that is limited midway between the side and shoulder level also warrants a 20 percent rating in the minor extremity. Such limitation to 25 degrees from the side warrants a 30 percent rating in the minor extremity. 38 C.F.R. § 4.71a. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. 38 C.F.R. § 4.71a, Plate I.

Turning to the evidence of record, in March 2014, the Veteran underwent a VA shoulder examination. He reported mild, continuous left shoulder pain, that was aching, dull, sharp and sore. Range of motion for the left shoulder showed flexion to 70 degrees, abduction to 70 degrees (with pain noted at 30 degrees), internal rotation to 60 degrees and external rotation to 30 degrees. He endorsed daily flare-ups, last ten to fifteen minutes. There was not additional limitation of range of motion after repetitive-use testing. Pain on palpation or guarding of the left shoulder were absent. Muscle strength testing for left shoulder abduction and flexion was 5/5. Ankylosis was absent. Findings were negative for instability/dislocation/labral pathology and clavicle, scapula, acromioclavicular joint and sternoclavicular joint conditions. Imaging studies showed mild arthritis of the left shoulder. The Veteran reported functional impact from flare-ups which impacted his ability to lift greater than ten to fifteen pounds, working overhead, grasping/gripping, pushing/pulling, climbing ladder and use of foot controls.

The Veteran underwent a VA elbow examination in August 2014. He reported daily pain and weakness in the left elbow of mild to moderate severity, aggravated by lifting heavy objects. Range of motion for the left elbow showed flexion to 140 degrees, extension to 0 degrees, pronation to 70 degrees and supination to 75 degrees, with pain in all directions. The examiner indicated painful motion began at 110 degrees or greater for extension. After repetitive-use testing, flexion was to 135 degrees and extension was to 105 degrees. The Veteran was found to have additional limitation at after repetitive-use testing and functional loss, resulting in less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly and deformity. Pain on palpation was present. Muscle strength testing was 4/5. Ankylosis was absent. Flail joint, joint fracture and/or impairment of supination or pronation was absent. Imaging studies did not show arthritis. Functional impact was assessed as difficulty lifting and carrying heavy weight repetitively. Under the Mitchell criteria, the examiner assessed range of motion for the left elbow as flexion to 105 degrees, extension to 15 degrees, supination to 75 degrees and pronation to 70 degrees.

Most recently, the Veteran underwent VA shoulder and elbow examinations in July 2021. 

At the shoulder examination, the Veteran reported daily cramping pain in his biceps and moderate to severe functional loss with repetitive use over time due to pain. He denied flare-ups. Range of motion for the left shoulder yielded flexion to 160 degrees, abduction to 160 degrees, internal rotation to 60 degrees and external rotation to 90 degrees. Range of motion was unchanged for passive and repetitive use testing. Pain was noted on active and passive range of motion testing in all directions and with weight-bearing. Such was found to cause functional loss, specifically regarding reaching, lifting, carrying, pushing and pulling. With repetitive use over time, pain was determined to result in flexion limited to 140 degrees, abduction to 140 degrees, internal rotation to 50 degrees and external rotation to 85 degrees. No additional factors contributing to disability were noted. Atrophy and ankylosis were absent. 

Regarding the left elbow, the Veteran described daily left elbow pain and moderate functional loss with repetitive use over time due to pain. He denied flare-ups. Range of motion for the left elbow yielded flexion to 145 degrees, extension to 0 degrees, forearm supination to 85 degrees, and forearm pronation to 80 degrees. Range of motion was unchanged for passive testing. Pain was noted on active and passive range of motion testing in all directions and with weight-bearing. Such was found to cause functional loss, specifically regarding reaching, lifting, carrying, pushing and pulling. There was no crepitus observed. Moderate tenderness of the medial and lateral elbow was noted. The Veteran was able to perform repetitive use testing without additional loss of function. With repetitive use over time, pain was determined to result in flexion limited to 125 degrees, extension to 5 degrees, forearm supination to 75 degrees, and forearm pronation to 70 degrees. No additional factors contributing to disability were noted. Atrophy and ankylosis were absent. 

1. An initial rating in excess of 30 percent for left elbow epicondylitis with limited extension, claimed as a left arm condition, is denied.

Based on the above, an initial rating in excess of 30 percent for left elbow epicondylitis with limited extension under DC 5207 is not warranted. Here, the evidence does not show extension limited to 110 degrees as is required for a 40 percent rating. In this regard, although the August 2014 examiner indicated that pain began at 110 degrees or greater with extension, the Veteran had, at worst, extension limited to 105 degrees after repetitive-use testing. 

2. An initial rating in excess of 20 percent for left partial bicep tear/tendonitis, claimed as a left arm condition, is denied.

Based on the above, an initial rating in excess of 20 percent for left partial bicep tear/tendonitis under DC 5010-5201 is not warranted. Here, the evidence does not show limitation to 25 degrees from the side as is required for a 30 percent rating. In this regard, although the March 2014 examiner indicated that pain began at 30 degrees, the Veteran had, at worst, flexion and abduction limited to 70 degrees.

Such limitation to 25 degrees from the side warrants a 30 percent rating in the minor extremity. 

3. An initial rating in excess of 10 percent for left elbow epicondylitis with painful motion of supination and pronation, claimed as a left arm condition, is denied.

The Board further concludes that a rating in excess of 10 percent for left elbow limitation of supination/pronation is not warranted. Here, the Veteran's left elbow demonstrated painful motion of the forearm, meriting a 10 percent evaluation. See 38 C.F.R. § 4.59. However, in pronation, motion was not lost beyond the last quarter of arc, not approaching full pronation. 

4. An initial compensable rating for left elbow epicondylitis with limited flexion, claimed as a left arm condition, prior to July 29, 2021, and 10 percent, thereafter, is denied.

Based on the foregoing, the Board finds that an initial compensable rating for left elbow epicondylitis with limited flexion, prior to July 29, 2021, and 10 percent, thereafter, under DC 5206, is not warranted. At no point has the Veteran's flexion been limited to 90 degrees, including with repetitive use over time or during flare-ups. Nor has the Veteran described limitation akin to 90 degrees in flexion. As such, higher ratings are not warranted under DC 5206 throughout the entire appeal period.

Other Considerations

The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the Veteran's currently assigned ratings take into consideration and incorporates the functional loss and impairment due to pain and flare-ups. The Veteran is already receiving the minimum compensable rating for pain for his elbow, and as such, 38 C.F.R. § 4.59 is not applicable.

Additionally, because extension has not been limited to 45 degrees at any point, rating under DC 5208 is also not warranted. Further, there is no evidence of ankylosis or impairment of the flail joint, nonunion of the radius and ulna, or impairment of the ulna or radius, suggesting favorable ratings under DCs 5205, 5209, 5210, 5211, and 5212. As such, no alternative or additional ratings are warranted for the Veteran's left arm disability.

Further, the Board notes that the 2014 examinations were conducted prior to the Court's holdings in Correia and Sharp. However, the Board finds no prejudice to the Veteran in recounting those findings herein, as his range of motion appeared more restricted during those examinations than the 2021 examinations. Moreover, he was provided with Correia and Sharp-compliant examinations in 2021.

The Board has carefully reviewed and considered the Veteran's statements regarding his claims for increased ratings. The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of his appeal. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claims are the most probative evidence with regard to evaluating the disabilities on appeal.

In addition, in making the above determinations, the Board has considered VA treatment records documenting symptomatology which are consistent with the findings in the VA examinations. 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.Z.

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.