Citation Nr: 21070777 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-30 031 DATE: November 26, 2021 ORDER Entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion is denied. Entitlement to an initial compensable evaluation for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, prior to February 27, 2019 is denied. Entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019 is denied. FINDINGS OF FACT 1. The Veteran's service-connected left elbow injury, limitation of flexion, manifests, at worst, with flexion to 110 degrees and painful motion. 2. Prior to February 27, 2019, the Veteran's left elbow injury, limitation of supination and/or pronation, manifests, at worst, in left forearm supination and pronation to 80 degrees, with no pain on motion. 3. As of February 27, 2019, the Veteran's left elbow injury, limitation of supination and/or pronation, manifests, at worst, in left forearm supination to 85 degrees and pronation to 80 degrees, with pain on flexion and extension. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5206 (2020). 2. The criteria for establishing entitlement to an initial compensable evaluation for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, prior to February 27, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5213 (2020). 3. The criteria for establishing entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5213 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1995 to August 1998, and from February 1999 to September 2007. These matters on appeal before the Board of Veterans' Appeals (Board) arise from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for a left elbow injury disorder but granted a non-compensable evaluation effective December 22, 2017. In a subsequent August 2019 rating decision, the RO increased the rating to 10 percent, effective February 27, 2019. Following an appeal of the rating, in a March 2020 decision, the Board denied the increased evaluation claims. Subsequently, the Veteran appealed the decision to the United States Court of Veterans Appeals (Court). In a February 2021 Joint Motion for Partial Remand (JMPR), the parties agreed the Board erred when it denied the claims as it relied on inadequate VA examinations conducted in January 2018 and February 2019. In a February 2021 Order, the Court granted the JMPR in which the parties agreed to vacate the Board's March 2020 decision as to the increased evaluation claims related to the left elbow injury only, and remand them for re-adjudication consistent with the JMPR. Pursuant to a July 2021 Board decision, this matter was remanded to implement the February 2021 JMPR decision. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion The Veteran contends that he is entitled to a higher evaluation for his service-connected left elbow injury. As outlined in more detail below, the preponderance of the evidence is against his claim. As a preliminary matter, the Board observes that the Veteran's disability is currently rated under Diagnostic Code 5206. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The Veteran's left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion is rated under, and governed by, Diagnostic Code 5206, which governs limitation of flexion of the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2020). Diagnostic Code 5206 has separate ratings for the major and minor, or dominant and non-dominant, arm. Id. The Veteran is right upper extremity dominant. As such, only the minor ratings will be considered and addressed in this decision. See 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2020). Pursuant to Diagnostic Code 5206, a 10 percent disability rating is warranted if the Veteran's forearm is limited to 100 degrees of flexion. Id. A 20 percent disability rating is warranted if the Veteran's forearm is limited to 90 degrees of flexion. Id. A 30 percent disability rating is warranted if the Veteran's forearm is limited to 55 degrees of flexion. Id. A maximum disability rating of 40 percent is warranted if the Veteran's forearm is limited to 45 degrees of flexion. Id. Review of the record indicates that the Veteran's left elbow disability has been evaluated on multiple occasions. The Board notes that the Veteran was afforded a VA examination in January 2018. During this examination, the Veteran reported he was unable to extend his left arm completely and experienced numbness and pain. No flare-ups were reported. Functional loss was described as an inability to reach behind his back. Range of motion of the left elbow revealed flexion and extension limited to 110 degrees. No pain was observed on examination. The Veteran denied any experience with localized tenderness or pain on palpation of the joint. In a separate section, the examiner indicated the Veteran reported pain at 110 degrees flexion. No additional functional loss or loss of range of motion was observed with repetitive use testing. An opinion regarding whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability over time could not be offered without resorting to mere speculation. The same opinion was offered regarding additional limitation or functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination, to include during flare-ups. The Veteran was afforded an additional VA examination in February 2019. During the examination the Veteran reported experiencing sharp, shooting pain and numbness over the previous 18 months. Occasionally, pain radiated from his hands to his shoulders. Pain was aggravated by reaching behind his back, laying his arm flat on a table, tying his shoes, and showering. The Veteran denied any experience with flare-ups. Functional loss was described as difficulty extending the left elbow. Participating in certain activities with his children was also difficult, such as swinging a bat, golf club or swimming. Range of motion of the left elbow was limited to 110 degrees of flexion and extension. Pain was reported with 80 degrees of supination and 110 degrees of flexion, with causing functional loss. No additional functional loss or loss of range of motion was observed with repetitive use testing. The examiner reported an inability to offer an opinion without resorting to mere speculation regarding whether pain, weakness, fatigability, or incoordination significantly limits his functional ability with repeated use. In support of that contention, the examiner indicated that there was no conceptual or empirical basis for making such a determination without observing function under these conditions. The same was suggested with regard to flare-ups. In a February 2021 Joint Motion for Partial Remand (JMPR), the parties agreed the Board erred when it denied the claims as it relied on inadequate VA examinations conducted in January 2018 and February 2019. As noted in the JMPR, the January 2018 VA examination was deemed internally inconsistent, and failed to describe the disability in sufficient detail so that the Board can accurately evaluate the disability. In particular, insufficient information was elicited from the Veteran regarding functional loss with repetitive use, the experience of flare-ups, or any statement of whether such information could be gleaned from medical records or other sources. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). Likewise, the February 2019 VA examination was deemed inadequate for the same reason. In particular, the JMR acknowledged the Veteran's reports of pain aggravated by reaching behind his back, laying his arm flat, and difficulty playing sports with his kids due to pain. Nevertheless, the examiner reported an inability to offer an opinion without speculation as to whether weakness, pain, fatigability, or incoordination significantly limit his functional ability over time with repetitive use, to include flare-ups. Id. While the Board has discussed the facts outlined in the 2018 and 2019 examination reports above, the Board finds any opinions offered to be of limited probative value for the reasons outlined in the February 2021 Joint Motion for Remand. Therefore, the Veteran's claims were remanded to obtain a new VA examination and opinion in July 2021. On examination in August 2021, current diagnoses included lateral epicondylitis, medial epicondylitis, with limitation of extension, left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, and radial head fracture. During the clinical interview, the Veteran reported progressive worsening, to include constant elbow pain in the medial aspect of the joint. Difficulty with elbow extension. Pain also impacted the right elbow, which the Veteran fractured post-service. Prescribed treatments include Ibuprofen and Gabapentin. The Veteran denied any experience with flare-ups, to include with associated loss of function. No complaints of painful motion with flexion, extension, forearm supination and/or pronation. Range of motion of the left elbow revealed full flexion, forearm supination, and forearm pronation, extension limited to 20 degrees. Range of motion does not contribute to functional loss. Evidence of pain was observed with flexion and extension. Passive range of motion mirrored active motion findings. Pain was also noted with active motion and non-weight bearing. It does not cause functional loss. There was no evidence of crepitus, ankylosis, or muscle atrophy. Mild localized tenderness or pain was observed at the medial epicondyle. No additional functional loss or loss of range of motion was observed with repetitive use testing. Neither pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability over time. No additional factors were listed as contributing to the Veteran's left elbow disability. He denied use of assistive devices. X-rays of the left elbow in July 2012, revealed a fracture just below the radial head. The Veteran described a functional impact as difficulty with full of extensive of the left elbow. Following the clinical evaluation, the examiner opined that there is no change in the service-connected diagnosis - no additional diagnoses were deemed warranted. The examiner also noted that the Veteran denied any experience with flare-ups, instead he has constant pain. Pain impacted the radial head and medial lateral epicondyle. Also, in August 2021, the Veteran underwent a VA examination of the peripheral nerves. The examiner documented mild left upper extremity pain and numbness, with normal deep tendon reflexes. Mild incomplete paralysis impacted the left ulnar nerve. The Veteran described a functional impact as difficulty with full use of the left elbow. Considering the above, the Board finds that the Veteran's symptomatology continues to approximate the diagnostic criteria for an evaluation of 10 percent disabling. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5206 (2020). As noted above, an evaluation of 20 percent disabling requires medical evidence indicated that the Veteran's forearm is limited to 90 degrees of flexion. No such findings have been established. In fact, the VA examinations of record demonstrate range of motion in excess of 100 degrees, with pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2020). While the February 2018 and January 2019 evaluations were deemed inadequate, the findings in support of a new examination did not relate to flaws in range of motion testing. The Board has fully considered the Veteran's reports of painful motion with functional limitations described as difficulty with full of extensive of the left elbow. However, repetitive use testing did not produce any additional loss or function or reduction in range of motion. Although the Veteran is competent to discuss his current symptomatology, including its worsening, he has not demonstrated the requisite medical training or expertise to opine as to his current functional status, specific to range of motion or ankylosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board affords his statements limited probative weight. The Board has also considered whether a higher disability evaluation is warranted under alternate Diagnostic Codes. There is no evidence of a fracture, malunion, or nonunion of any kind in the left elbow. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5209, 5210, 5211, 5212 (2020). An analysis of pronation and supination of the left elbow will be addressed in Sections 2 and 3. 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2020). Additionally, the Board finds that the record is silent for any evidence that the Veteran's left elbow disability has been manifested by ankylosis, to include during flare-ups. In fact, the Veteran has denied any experience with flare-ups throughout the appeal period. Thus, the rating factors enumerated in 38 C.F.R. §§ 4.40, 4.45 are not for application. See Chavis v. McDonough, 34 Vet. App. 1, 4 (U.S. 2021) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45 but not if there is no such evidence, citing Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) and Spencer v. West, 13 Vet. App. 376, 382 (2000)). Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 10 percent for service-connected left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion must be denied. 2. Entitlement to an initial compensable evaluation for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, prior to February 27, 2019 The Veteran contends that the current severity of his left elbow injury with limitation of pronation warrants a higher evaluation. However, as outlined in more detail below, the preponderance of the evidence is against his claim. As a preliminary matter, the Board observes that the Veteran's disability is currently rated under Diagnostic Code 5213. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Prior to February 27, 2019, the Veteran's service-connected impairment of the left elbow injury, with limited pronation was evaluated as non-compensable under Diagnostic Code 5213. 38 C.F.R. §§ 4.71a (2020). Under Diagnostic Code 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. 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. As noted in section 1, the Veteran has been afforded multiple VA examinations. On examination in January 2018 and February 2019 VA elbow and forearm conditions, the Veteran's left elbow forearm pronation was, no worse than, 80 degrees. Difficulty extending the left elbow was also reported. Considering the above, the Board finds that a compensable evaluation is not warranted for the Veteran's service-connected left elbow injury with pronation for the period prior to February 27, 2019. In reaching the stated conclusion, the Board notes that at no time has his left elbow supination been limited to 30 degrees or less. It has also not been described as fixed in either pronation or supination. There is also no evidence of 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. Similarly, there is no evidence of a 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. Although the Board has fully considered complaints of constant pain and an impaired ability to extend the left elbow, the medical evidence has not established supination limited to the extent that an evaluation of 10 percent disabling was assignable under Diagnostic Code 5213. While the Board is sympathetic to the Veteran's report of increasing severity of symptoms, the medical evidence does not support a higher evaluation for any point during the appeal period. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49, 553 (1990). The Veteran's claim of entitlement to an evaluation in excess of 10 disabling for his service-connected right elbow supination must be denied. 3. Entitlement to an evaluation in excess of 10 percent disabling for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019 The Veteran contends that the current severity of his left elbow injury with limitation of supination warrants a higher evaluation. However, as outlined in more detail below, the preponderance of the evidence is against his claim. From February 27, 2019, the Veteran's service-connected impairment of the left elbow injury, with limited supination was evaluated as 10 percent disabling under Diagnostic Code 5213. 38 C.F.R. §§ 4.71a (2020). As previously indicated, under Diagnostic Code 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. 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. As noted in section 1, the Veteran has been afforded multiple VA examinations. On examination in January 2018 and February 2019 VA elbow and forearm conditions, the Veteran's left elbow forearm pronation was, no worse than, 80 degrees. Difficulty extending the left elbow was also reported. As previously discussed, these examinations are of limited probative value due to factors such as internal inconsistency. On subsequent examination in August 2021, the Veteran's left elbow forearm supination was to 85 degrees. Pain was observed with flexion and extension only. The Veteran described his functional limitations as difficulty with full use of extension of the left elbow. A peripheral nerve examination, also dated August 2021, revealed mild left upper extremity pain and numbness, with normal deep tendon reflexes. Mild incomplete paralysis impacted the left ulnar nerve. The Veteran described a functional impact as difficulty with full use of the left elbow. Following the clinical evaluation, the examiner opined that there is no change in the service-connected diagnosis, or any additional diagnoses deemed warranted. The examiner noted that the Veteran denied any experience with flare-up, instead he has constant pain. Pain is in the radial head and medial lateral epicondyle. Considering the above, the Board finds that an evaluation in excess of 10 percent disabling is not warranted for the Veteran's service-connected left elbow injury with supination for the period from February 27, 2019 forward. In reaching the stated conclusion, the Board notes that at no time has his left elbow 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. There is also no evidence of 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. Similarly, there is no evidence of a 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. While the Board has fully considered the Veteran's complaints of pain and an impaired ability to extend the left elbow, the medical evidence has not established supination limited to the extent that an evaluation of 20 percent disabling was assignable under Diagnostic Code 5213. While the Board is sympathetic to the Veteran's report of increasing severity of symptoms, the medical evidence does not support a higher evaluation for any point during the appeal period. CONTINUED ON NEXT PAGE Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49, 553 (1990). The Veteran's claim of entitlement to an evaluation in excess of 10 disabling for his service-connected left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019 must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.