Citation Nr: A21018075 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 200518-85006 DATE: November 9, 2021 ORDER Entitlement to an initial 10 percent rating for limitation of extension of the left elbow due to fracture status post open reduction and internal fixation is granted. Entitlement to an initial rating higher than 10 percent for limitation of flexion of the left elbow due to fracture status post open reduction and internal fixation is denied. FINDING OF FACT The Veteran's disabilities of limitation of extension and limitation of flexion of the left elbow due to fracture status post open reduction and internal fixation is manifested by painful motion on flexion at 140 degrees and extension at 15 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating for limitation of extension of the left elbow due to fracture status post open reduction and internal fixation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (Code) 5207. 2. The criteria for entitlement to an initial rating higher than 10 percent for limitation of flexion of left elbow due to fracture status post open reduction and internal fixation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Code 5206. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from March 1974 to March 1976. These matters are before the Board of Veterans Appeals (Board) from an August 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is being adjudicated in accordance with the Appeals Modernization Act (AMA). In May 2020, the Veteran submitted a timely appeal to the Board (VA Form 10182), requesting the AMA Direct Review option for reevaluating evidence considered by the RO. The Board notes the Veteran's April 2019 claim for impaired range of motion of the arm resulted in two separate ratings for the left elbow. The Board construes the Veteran's notice of disagreement for a left elbow fracture to encompass both issues related to the left elbow. The Board acknowledges the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when raised by the Veteran or the record. While the Veteran indicates in the June 2019 VA-contract elbow and forearm conditions examination report that his service-connected left elbow disabilities impact his ability to perform any type of occupational tasks, (described experiencing limitation on heavy lifting and pulling with his left arm) he does not indicate, and the record does not reflect, that he not substantially and gainfully unemployable due to his service-connected left elbow disabilities. Accordingly, a TDIU claim has not been raised, and no action under Rice is necessary. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed a claim for service connection for impaired range of motion of the left arm in April 2019. In an August 2019 rating decision, the RO granted service connection for limitation of extension of the left elbow due to fracture status post open reduction and internal fixation and assigned a 0 percent rating under Code 5207 effective December 7, 2018, and for limitation of flexion of the left elbow due to fracture status post open reduction and internal fixation and assigned a 10 percent rating under Code 5206, effective December 7, 2018. Under Code 5206, a noncompensable or 0 percent rating is assigned when flexion of the non-dominant forearm is limited 110 degrees, a 10 percent rating is assigned for flexion limited to 100 degrees, a 20 percent rating is assigned for flexion limited to 90 degrees, and higher ratings are assigned for greater limitation. 38 C.F.R. § 4.71a, Code 5206. Under Code 5207, a 10 percent rating is assigned for extension of the non-dominant forearm limited to 45 degrees or to 60 degrees, a 20 percent rating is warranted for extension limited to 75 degrees, and higher ratings are assigned for greater limitation. While Code 5207 does not provide for a noncompensable disability evaluation, 38 C.F.R. § 4.31 provides for zero percent ratings in every instance where the schedule does not provide a zero percent rating for a diagnostic code, and the requirements for a compensable evaluation are not met. Normal range of motion of the elbow is flexion to 145 degrees, extension to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate I. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The evidence of record, notably a June 2019 VA examination report, indicates the Veteran is right-hand dominant. Therefore, his left elbow is rated as the non-dominant or minor elbow joint. In June 2019, the Veteran was afforded a VA-contract elbow and forearm conditions examination. He reported his left elbow hit a telephone pole during a motor vehicle accident in July 1974 and sustained a fracture to the left elbow. He endorsed current symptoms of intermittent mild dull pain over the left elbow with cracking sensation. He reported flare-ups described as more pain over the left elbow. He described functional loss or functional impairment of having difficulty with heavy lifting or pulling with his left arm. On active and passive range of motion testing left elbow flexion was to 140 degrees, extension was to 15 degrees, forearm supination was to 85 degrees, and forearm pronation was to 80 degrees. There was no objective evidence of pain on passive range of motion testing. The Veteran's decrease in range of motion contributes to functional loss in that it limits heavy lifting. On examination, pain was exhibited on flexion and extension. There was objective evidence of mild localized tenderness or pain on palpation of the left lateral elbow. There was no pain on weight bearing or non-weight bearing. There was no additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over time and flare-ups. Muscle strength testing revealed normal left elbow muscle strength. There was no muscle atrophy. There were no imaging studies of the left elbow performed and no significant diagnostic test findings or results. The diagnosis was left elbow fracture status post open reduction and internal fixation. The Veteran's left elbow disability impacts his ability to perform any type of occupational task to the extent he is limited from heavy lifting and pulling with his left arm. The Board finds this examination to be probative for deciding the issues on appeal. Private treatment records associated with the claims file show no evaluation of the left arm. Having considered the medical evidence of record, the Board finds that higher ratings than those currently assigned for the Veteran's left elbow disabilities are not warranted at any time during the appeal period. An examination in July 2019 shows that the Veteran's left elbow disability was manifested by pain, and flexion was to 140 degrees, and extension was to 15 degrees. Under 38 C.F.R. § 4.59, actually painful joints are entitled to a minimum compensable rating. The Board finds that the combination of extension limited to 15 degrees and pain on motion equates to the criteria for a 10 percent evaluation under Diagnostic Code 5207. A 10 percent initial evaluation is thus granted. The Board has also considered the Veteran's reports of symptoms such as pain, but the evidence does not show that his symptoms impair range of motion, including after repetitive testing, such that the criteria for even higher ratings for flexion or extension are met. See e.g., Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Board has also considered other potentially applicable rating criteria for this period but finds that a higher rating is not warranted on such basis because the Veteran is not shown to have left elbow ankylosis, forearm flexion limited to 100 degrees with extension limited to 45 degrees; joint fracture; or nonunion or malunion. Codes 5205, 5208, 5209, 5210, 5211, 5212. Accordingly, the evidence supports an initial 10 percent rating for extension of the left elbow, but the preponderance of the evidence does not support an initial rating in excess of 10 percent for left elbow flexion. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.