Citation Nr: 21075078 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 11-11 574 DATE: December 17, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for right elbow flexion contracture is denied. A disability evaluation in excess of 10 percent for limitation of pronation and supination for right elbow flexion contracture prior to October 10, 2017, is denied. A disability evaluation in excess of 30 percent for limitation of pronation and supination for right elbow flexion contracture from October 10, 2017, is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran's right elbow flexion contracture was manifested by flexion limited to 70 degrees and extension limited to 5 degrees. 2. Prior to October 10, 2017, the Veteran's right elbow flexion contracture was manifested by pronation limited to 90 degrees and supination to 50 degrees and painful motion. 3. From October 10, 2017, the Veteran's right elbow flexion contracture was manifested by pronation limited to 0 degrees and supination limited to 30 degrees, with painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for limitation of flexion have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R.§§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5206 (2020). 2. The criteria for an evaluation in excess of 10 percent for limitation of pronation and supination for right elbow flexion contracture prior to October 10, 2017, have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R.§§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5213 (2020). 3. The criteria for an evaluation in excess of 30 percent for limitation of pronation and supination for right elbow flexion contracture from October 10, 2017, have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R.§§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5213 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1957 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision which reduced the rating for the Veteran's service-connected right elbow flexion contracture from 30 percent to 10 percent, effective March 1, 2011. In a December 2015 Board decision, the Board found that the RO had adjudicated the Veteran's notice of disagreement with the rating reduction as one for an increased rating, resulting in the issues currently before the Board. In November 2010, the Veteran and C.W. testified at a RO hearing. In May 2014, the Veteran, A.R., and V.S. testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of each transcript is associated with the claims file. In an October 2018 decision, the Board, in pertinent part, denied entitlement to a disability rating in excess of 30 percent for right elbow flexion contracture, and granted a separate rating of 10 percent, but no higher, prior to October 10, 2017, and 30 percent thereafter, but no higher, for limitation of pronation and supination for right elbow flexion contracture. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a September 2019 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's decision as it pertained to the increased rating claims for the Veteran's right elbow disability, and remanded the matter back to the Board for adjudication consistent with the JMPR. In April 2020, the Board remanded the matters for a new VA examination and a retrospective medical opinion as to the severity of the Veteran's disability during prior examinations. The Board again remanded this matter for further development in May 2021. The requested development has been completed and the matter is ready for appellate review. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection or one year prior to the increased rating claim and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The normal ranges of motion of the elbow and forearm are zero to 145 degrees in flexion and extension, zero to 85 degrees supination, and zero to 80 degrees pronation. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5206 provides compensation for limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Flexion limited to 110 degrees or more warrants a noncompensable rating. Flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. Flexion limited to 70 degrees warrants a 30 percent rating. Flexion limited to 55 degrees warrants a 40 percent rating. Flexion limited to 45 degrees warrants a 50 percent rating. Diagnostic Code 5207 provides compensation for limitation of extension of the forearm. 38 C.F.R. § 4.71. Extension limited to 45 degrees warrants a 10 percent rating. Extension limited to 60 degrees warrants a 10 percent. Extension limited to 75 degrees warrants a 20 percent rating. Extension limited to 90 degrees warrants a 30 percent rating. Extension limited to 100 degrees warrants a 40 percent rating. Extension limited to 110 degrees warrants a 50 percent rating. Under Diagnostic Code 5208, if the Veteran's flexion is limited to 100 degrees and extension is limited to 45 degrees, a 20 percent rating is assigned. 38 C.F.R. § 4.71a. Diagnostic Codes 5209 to 5213 provide ratings for impairment of the flail joint, for nonunion of the ulna and radius of the major arm with a flail false joint, and for impairment of the ulna and radius. None of these disorders were indicated in the record. Diagnostic Code 5213 provides compensation for impairment of supination and pronation. 38 C.F.R. § 4.71a. Supination limited to 30 degrees or less is assigned a 10 percent rating. Limitation of pronation with motion lost beyond last quarter of arc and the hand does not approach full pronation is assigned a 20 percent rating. Limitation of pronation of the major arm with most motion lost beyond middle of arc is assigned a 30 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed near the middle of the arc or moderate pronation is assigned a 20 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed in full pronation is assigned a 30 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed in supination or hyperpronation is assigned a 40 percent rating. The Note to the rating criteria for the elbow and forearm provides that in all the forearm and wrist injuries (Diagnostic Codes 5205 to 5213) multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed the rating for loss of use of hand. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) 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. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The evidence of record, to include VA examinations, are sufficient for rating purposes. Turning to the evidence of record, at the time of a July 2010 VA examination the Veteran reported right elbow pain on a daily basis, with flare-ups once a month, and that he had had injections to the right elbow. Examination revealed flexion to 125 degrees and extension to zero degrees, with painless range of motion. Pronation was to 90 degrees without pain and supination was limited to 55 degrees, with very painful range of motion beginning at 50 degrees. Repetition did not increase pain in any plane. There was tenderness to palpation over the medial and lateral epicondyle. Muscle strength testing was normal. The examiner indicated that it was conceivable that there was loss of function, including loss of range of motion, secondary to pain, but that it was difficult to determine the extent of loss with any medical certainty. A September 2010 imaging study revealed a small posterior olecranon tendonous calcification and vascular calcifications, but there was no joint effusion, fracture, or dislocation demonstrated. At a November 2010 RO hearing, the Veteran testified that his right elbow was painful and that he had to take medicine to sleep at night because of the pain. He reported that he wore a brace and used a heating pad. He noted that he had good days and bad days, but that his right elbow was not improving. February 2011 VA treatment records reveal that the Veteran reported right elbow pain for many years and that it popped with activity. Upon examination, range of motion was from 5 to 140 degrees, with no instability or weakness noted. At the time of a March 2012 VA examination the Veteran could straighten his arm fairly well, but experienced pain from 160 to 180 degrees extension, and in pronation. At his May 2014 Travel Board hearing, the Veteran testified that he could bend his right elbow to about 90 degrees and straighten it to about 120 degrees, and that pain limited him from further movement. He stated that he was unable to shave himself and that someone else did all his cooking. At the time of an October 2017 VA examination, the Veteran reported having radiating elbow pain and that he was unable to fully flex or extend his elbow. Range of motion testing revealed flexion to 70 degrees, extension to 5 degrees, supination to 40 degrees and pronation to 15 degrees. Pain was noted in all planes and found to cause functional loss. The Veteran performed repetitive use testing without additional loss of range of motion. The examiner was unable to say without resorting to speculation whether there was additional loss of range of motion after repetition or during flare-ups, as the examination was not conducted after repeated use or during a flare-up. The examiner found that less movement than normal due to flexion contracture and arthritis contributed to the Veteran's disability, but muscle strength testing was normal, there was no ankylosis, and the Veteran did not use an assistive device. The examiner opined that the Veteran's arthritis was unrelated to his flexion contracture. At the time of a February 2018 VA examination, the Veteran reported elbow pain that radiated to his shoulder and resulted in functional loss with writing, decreased grip, lifting, and carrying items. Range of motion testing was flexion to 100 degrees, extension to zero degrees, supination to 45 degrees, and pronation to 40 degrees, with pain in all planes contributing to functional loss. Repetitive use testing did not result in additional loss of range of motion. The examiner noted that pain limited functional ability during a flare-up, but unable to describe loss of functional ability in degrees, as the Veteran reported that loss of range of motion was variable. There was no muscle atrophy, but there was a reduction in muscle strength. The examiner found no ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examiner noted constant use of a brace. The examiner opined that while the Veteran's arthritis and flexion contracture were unrelated, there was an overlap of symptoms. In its April 2020 remand, the Board noted that while the July 2010 VA examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Similarly, the October 2017 VA examiner stated that a medical opinion for any functional loss with repetitive use over time could not be provided because the examination was not being conducted immediately after repetitive use over time. Finally, the February 2018 VA examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. The Board found that a remand was warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran's right elbow disability. Upon remand, a retrospective medical opinion was also to be obtained addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations. The Board requested that the Veteran be afforded a new examination and that the examiner provide a retrospective medical opinion addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations. The Board noted that as the examiner must provide a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, to the extent possible, the examiner was to provide an opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his July 2010, October 2017, and February 2018 VA examinations, and his pertinent lay statements, including during the May 2014 Board hearing. To the examiner's best ability, the additional range of motion lost was to be described in degrees based on that information. The Veteran was afforded the requested examination in January 2021. At the time of the examination, the Veteran reported constant and throbbing pain. The pain was noted to be sharp. Flare-ups of the right elbow occurred 3 to 6 times per month. The right elbow flare-ups could range from moderate to severe and lasted 1 to 3 days. The right elbow flare-ups were precipitated by weather and when trying to move in a certain way. The right elbow flare-ups were alleviated by warm or heated therapy and pain medications. The Veteran noted having constant throbbing and stated that lifting any object increased his pain. Range of motion testing revealed flexion to 110 degrees, extension to zero degrees, supination to 35 degrees, and pronation to 40 degrees, with pain in all planes contributing to functional loss. There was localized tenderness or pain on palpation of the joint or associated tissue. The location was in the posterior elbow with moderate severity. There was pain with weight bearing and crepitus was present. Repetitive use testing did not result in additional loss of range of motion. As to repeated use over time, the examiner indicated that the Veteran had flexion to 105 degrees, extension to zero degrees, supination to 30 degrees, and pronation to 35 degrees. The same ranges of motion were reported for flare-ups. There was no muscle atrophy, but there was a reduction in muscle strength of 4/5. The examiner found no ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examiner noted constant use of a brace. The examiner stated that lifting any object increased the Veteran's pain. The examiner opined that while the Veteran's arthritis and flexion contracture were unrelated, there was an overlap of symptoms. The examiner further noted that there was objective evidence of pain on passive range of motion testing of the right elbow and objective evidence of pain on non-weight bearing testing of the right elbow. The examiner indicated that the Veteran repeatedly stated that picking up any object, even light weight objects, caused pain. He had increased weakness of the extremity. He was unable to fully extend the right elbow as noted in Elbow DBQ. During the examination, the Veteran repeatedly stated that he had a right elbow contracture and a painful scar to elbow from previous surgery. The ranges of motion were located in the Elbow DBQ from January 9, 2021, along with the estimated ranges of motions for flare ups. In a May 2021 remand, the Board noted that upon review of the record, it was not clear that the examiner was ever able to review the Veteran's medical records and that the January 2021 opinions did not provide a retrospective opinion on the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations, as directed by the Board's April 2020 remand directives. The Board requested that the examiner provide a retrospective medical opinion addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations. To the extent possible, the examiner should provide an opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his July 2010, October 2017, and February 2018 VA examinations, and his pertinent lay statements, including during the May 2014 Board hearing. To the examiner's best ability, the additional range of motion lost should be described in degrees based on that information. The Veteran was afforded an additional VA examination in June 2021. Range of motion testing was flexion to 140 degrees, extension to zero degrees, supination to 80 degrees, and pronation to 80 degrees. Passive range of motion revealed the same results. There was no evidence of pain. There was no localized tenderness or pain on palpation of the joint or associated tissue. There was no crepitus. Repetitive use testing did not result in additional loss of range of motion. As to repeated use over time, the examiner indicated that the Veteran had flexion to 135 degrees, extension to zero degrees, supination to 80 degrees, and pronation to 0 degrees. There were no ranges of motion provided for flare-ups. There was no muscle atrophy. The examiner found no ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examiner indicated that the Veteran was unable to do activities requiring repetitive/prolonged/ excessive/persistent use of hands eg: push/pull/lift/hold/grab/grasp/type/write/kick/punch/ twist off cap/ squeeze lemon/open jars. The examiner stated that the Veteran had osteoarthritis of both elbows which explained the range of motion symptoms. Clinically, there was no evidence of any contractures. As to the opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his July 2010, October 2017, and February 2018 VA examinations, and his pertinent lay statements, including during the May 2014 Board hearing, the examiner indicated that the entire claims folder had been reviewed and that due to the way the scar was placed medially, that ran over the joint (like a road bend), the Veteran would get pain with repetitive use, with no loss of range of motion and none reported on flare-ups. In sum, the Veteran's right elbow flexion contracture was manifested by pain and flexion limited to, at most, 70 degrees for the period on appeal. These symptoms are most nearly approximated by the 30 percent rating currently assigned. A 50 percent rating is not warranted, as there was no objective evidence that the Veteran's right elbow flexion was more nearly approximated by flexion limited to 55 degrees or more. The Veteran's complaints along with the reported retrospective ranges of motion on prior examinations have been considered and do not demonstrate that an evaluation in excess of 30 percent would be warranted. As to the separate rating for impairment of supination and pronation. Prior to October 10, 2017, supination was limited to 55 degrees, with pain beginning at 50 degrees. Pronation was noted to cause pain, with normal range of motion. Although this limitation does not meet the criteria for a compensable rating under DC 5213, the painful and limited supination and pronation nevertheless warrant a compensable rating under DC 5213. See 38 C.F.R.§ 4.59; see also 38 C.F.R.§ 4.71, Plate I; cf. VBA Manual, III.iv.4.A.2.d (advising that limitation of flexion of the elbow to a compensable degree under DC 5206, and full but painful supination would warrant separate ratings, since motion of the forearm is separate and distinct from elbow motion). Separate ratings for both limited supination and pronation are not available. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise); see also 38 C.F.R.§4.71a, DC 5213. From October 10, 2017, supination and pronation were limited to, at most, 0 degrees and 15 degrees, respectively. The Board finds that limitation of pronation to 0 degrees warrants a 30 percent rating, as motion is lost beyond the middle of the arc. The hand being fixed in supination or pronation, which would warrant a 40 percent disability evaluation, has not been demonstrated or more closely approximated. See 38 C.F.R.§ 4.71a, DC 5213 (Continued on the next page) In assessing relevant symptomatology in this matter, the Board has considered the Veteran's lay statements attesting to pain on motion in his elbow. The Veteran is competent to offer evidence regarding observable symptomatology such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007). However, on the issue of the degree of the Veteran's impairment, the medical evidence is more credible and preponderates against the notion that the Veteran experiences limitation of motion that would warrant higher ratings here. The Board has also obtained a medical opinion concerning the Veteran's retrospective ranges of motion on prior examinations, with the examiner specifically indicating that all materials had been reviewed prior to rendering the requested opinions. For the reasons discussed above, the Board finds that the weight of the evidence is against a rating in excess of 30 percent for right elbow flexion contracture based on limitation of flexion and the benefit-of-the-doubt doctrine is not applicable. Moreover, no more than a separate 10 percent rating based on pain and limitation of pronation and supination is warranted prior to October 10, 2017, and no more than 30 percent thereafter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.