Citation Nr: 21076240 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 16-21 693 DATE: December 23, 2021 ORDER Entitlement to a 60 percent disability rating for a right elbow disability under diagnostic code 5205 after May 12, 2021, is granted. Entitlement to an initial increased rating in excess of 10 percent for a right elbow disability under diagnostic code 5207 prior to May 12, 2021, is denied. Entitlement to an initial increased rating in excess of 20 percent for diabetes mellitus, type 2, prior to May 12, 2021, and in excess of 40 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's right elbow disability is manifest by painful motion, limitation of flexion to 10 degrees, limitation of extension to 55 degrees, limitation of pronation, and unfavorable ankylosis with complete loss of supination. 2. The Veteran's right elbow disability manifested as painful motion and limitation of flexion to 55 degrees but not limitation of flexion to 100 degrees or ankylosis prior to May 12, 2021. 3. The Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent prior to May 12, 2021. 4. The Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider and did not have complications that would not be compensable if separately evaluated. 5. The Veteran's right elbow disability has precluded him from maintaining or obtaining substantially gainful employment throughout the entire period on appeal where he meets the TDIU threshold requirements. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating based on unfavorable ankylosis with complete loss of supination under DC 5205 for a right elbow disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.68, 4.7, 4.71a, Diagnostic Codes 5123, 5205, 5206, 5207, 5213. 2. The criteria for a disability rating in excess of 10 percent for a right elbow disability prior to May 12, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.68, 4.7, 4.71a, Diagnostic Codes 5123, 5205, 5206, 5207, 5213. 3. The criteria for a disability rating in excess of 20 percent for diabetes mellitus prior to May 12, 2012, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 until his honorable discharge in November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision for the right elbow claim, a September 2013 rating decision for the diabetes claim, and an August 2014 rating decision for the TDIU claim of the Regional Office of the Department of Veterans Affairs (VA). In June 2019, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. In November 2019, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain outstanding treatment records and new VA examinations addressing the severity of his disabilities. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to an initial increased rating in excess of 50 percent for a right elbow disability after May 12, 2021. The Veteran asserts that he is entitled to a rating in excess of 50 percent. His claim for service connection for a right elbow disability was first granted in a November 2012 rating decision. He had one year from when VA sent him notice of this decision, December 2013, to file a Notice of Disagreement (NOD). Before that took place VA adjudicated a claim for an increased rating, obtaining a VA examination in August 2013 and issuing a rating decision in September 2013. Prior to the one-year deadline he filed a statement in support of claim in October 2013 disagreeing with the assigned rating. This informal response is all that was required as a NOD to the November 2012 rating decision. As such, the period on appeal is from the date VA received his claim, July 11, 2011, to the present. A right elbow disability can be found in 38 C.F.R. § 4.71a, Diagnostic Codes 5205 through 5213. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). He currently has three separate ratings for the right elbow. The first DC 5206 for limitation of flexion at 50 percent effective May 12, 2012; the second for under DC 5207 for limitation of extension at 10 percent effective July 11, 2011; and the third for DC 5213 for limitation of pronation at 30 percent effective May 12, 2021. He is right hand dominant and was rated accordingly. The regulation regarding DC 5206 for limitation of flexion states in relevant part, a limitation to 110 degrees is noncompensable, limitation to 100 degrees is compensable at 10 percent, limitation to 90 degrees at 20 degrees, limitation to 70 degrees at 30 percent, limitation to 55 degrees at 40 percent, and limitation to 45 degrees at 50 percent for major joints. Under DC 5207 for limitation of extension, the regulation states that limitation to 45 degrees is compensable at 10 percent, limitation to 60 degrees at 10 percent, limitation to 75 degrees at 20 percent, limitation to 90 degrees at 30 percent, limitation to 100 degrees at 40 percent, and limitation to 110 degrees at 50 percent. 38 C.F.R. § 4.71a. DC 5213 provides, in relevant part, a 10 percent rating for limitation of supination to 30 degrees or less, a 20 percent rating for motion lost beyond the last quarter of arc where the hand does not approach full pronation, 30 percent for motion lost beyond middle of arc where there is limitation of pronation. A 30 percent rating is awarded where the hand is fixed in full pronation and a 40 percent rating for when the hand is fixed in supination or hyperpronation. Id. Additionally, DC 5205 provides a 40 percent rating for ankylosis of the elbow at an angle between 90 and 70 degrees where favorable, a 50 percent rating where intermediate ankylosis at an angle of more than 90 or between 70 and 50 degrees, and a 60 percent rating for unfavorable ankylosis at an angle of less than 50 degrees or with complete loss of supination or pronation. Id. Over the period on appeal the Veteran has had two VA examinations for his elbow disability, the first in August 2012 and the second in May 2021 with an addendum opinion in September 2021. He also had two examinations for muscle injuries in November 2011 and May 2019 and an aid and attendance examination in March 2019 that are relevant to his elbow claim. The first examination for the elbows in August 2012 found that he had flexion to 135 degrees and extension to 55 degrees with painful motion of the elbow, but no ankylosis present. His limitation of extension placed him within the ten percent rating criteria for DC 5207 and his limitation of flexion was noncompensable under DC 5206. There was no impairment of supination or pronation at that time. The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995) have been considered and are not warranted. A higher evaluation of 20 percent is not warranted for limitation of extension of the elbow unless extension is limited to 75-89 degrees. See DC 5207. Likewise, his symptoms were not ratable under another diagnostic code at that time. The two examinations for muscle injuries did not provide specific range of motion test results. The first examination found that his extension of the right elbow had no movement against resistance on a strength test and that his left elbow was normal. This was caused by scaring and trauma to the right arm. See November 2011 VA Examination. The second in in May 2019, noted that he had muscle atrophy in the right arm including in the forearm with right elbow flexion and extension both showing less strength than normal. The examiner noted that he would be "limited in lifting, working overhead or performing actions regarding a high degree of right arm coordination." Again, the examination in March 2019 centered around aid and attendance and did not provide specifics on range of motion. The examination merely noted that he had severely decreased range of motion in his arm. This is not enough information to award the Veteran a higher rating. His next VA examination of the elbow occurred in May 2021. At that time, he was diagnosed with ankylosis of the right elbow joint, degenerative arthritis of the right elbow, and atrophy of the right upper extremity. His active range of motion was 10 degrees of flexion, zero degrees of extension, and pain with both. There was no additional loss of function or range of motion after repetitive use or repetitive use over time. The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995) were again not applicable. However, muscle atrophy was present in the right elbow. This examination would not change the Veteran's rating under DC 5207 regarding extension as he already had a 10 percent rating, and his extension was not limited beyond 59 degrees. He did meet the requirements of a 50 percent rating under DC 5206 as he had a flexion of 10 degrees and was previously awarded this higher rating. He is not entitled for a higher rating under DC 5206 because this is the top rating for that DC. He was also awarded a 30 percent rating for right elbow limitation of pronation under DC 5003-5213 as of the May 2021 examination. His most recent VA examination for the elbow showed that he has unfavorable ankylosis of the elbow with complete loss of supination or pronation, any additional rating for the right elbow must not run afoul of the amputation rule. As a matter of law, the Veteran cannot receive a disability rating in excess of 80 percent due to the "amputation rule," which provides, in relevant part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were the amputation to be performed. See 38 C.F.R. § 4.68. Diagnostic code 5123 provides that an amputation of the arm above insertion of pronator teres would warrant an 80 percent rating. As the right elbow disability implicates this portion of the arm above the pronator teres, he cannot be compensated at a rate higher than 80 percent for his disability. See 38 C.F.R. § 4.68; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Currently, the combined rating of his limitation of flexion (DC 5206 50 percent), limitation of extension (5207 30 percent), and limitation of pronation (5213 10 percent) is 70 percent. As such only a rating that would increase his combined rating to 80 percent and no higher is allowed. To that end, he is entitled to a higher rating under diagnostic code 5205 for ankylosis of the right elbow due to complete loss of supination. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). This does not constitute impermissible pyramiding as his 30 percent rating under DC 5213 was awarded for limitation of pronation where motion was lost beyond the middle of arc. DC 5213 contemplates limitation and impairment of supination, but he did not receive a rating under DC 5213 for a disability involving supination. As a result, his unfavorable ankylosis with complete loss of supination may be rating under DC 5205 and not constitute impermissible pyramiding. DC 5205 provides a 60 percent rating for unfavorable ankylosis of the elbow with complete loss of supination or pronation. The May 2021 examination diagnosed him with unfavorable ankylosis with complete loss of supination and so he is entitled to a 60 percent rating under DC 5205. This is the highest rating available under DC 5205. Alternate DC's have been considered and an increased rating on that basis is not warranted. He has also already been awarded special monthly compensation for loss of use of entire right arm in an October 2021 rating decision. 2. Entitlement to an initial increased rating in excess of 20 percent for diabetes mellitus, type 2, prior to May 12, 2021, and in excess of 40 percent thereafter. The Veteran asserts that he is entitled to a higher rating for his diabetes mellitus, type 2. See February 2013 Statement in Support of Claim. His claim for service connection for diabetes mellitus, type 2, was first granted in an August 2005 rating decision. The decision became final as he did not appeal, and new and material evidence was not received. 38 C.F.R. §§ 3.156(b), 3.160(d), 20.302(a). He then filed for an increased rating in February 2013. As such the period on appeal is from one year prior to the date VA received his claim for a higher rating, February 2012, to the present. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, the Veteran has a rating of 20 percent effective December 18, 2003 and a 40 percent rating effective May 12, 2012. Diabetes mellitus, type 2, can be found in 38 C.F.R. § 4.119, Diagnostic Code 7913. The rating criteria are as follows in relevant part, ... Requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 [percent;] Requiring one or more daily injection of insulin, restricted diet, and regulation of activities 40 [percent; and] Requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated 60 [percent.] 38 C.F.R. § 4.119. Over the period on appeal, the Veteran has had two VA examinations for diabetes mellitus, type 2, the first in August 2012 and the second in September 2021. The first VA examination in August 2012 found he was treated with a restricted diet and prescribed oral hypoglycemic agents. He did not require regulation of activities nor was he prescribed insulin injections at that time. As such, he was entitled to a 20 percent rating and no higher. The May 2021 VA examination showed that the Veteran required a restricted diet, prescribed oral hypoglycemic agents, and more than one injection of insulin every day. This placed him in the 40 percent rating criteria, which he was awarded after the May 2021 examination. In addition to these issues, he also has to regulate his activities so as not to over-exert himself due to frequent hypoglycemic episodes. At the time of the examination, he had not been hospitalized within the past 12 months and he visited his diabetic care provider for episodes of ketoacidosis less than two times per month. As a result, he is not entitled to the next highest rating of 60 percent. The VA treatment records confirm that he has not been hospitalized within the last 12 months or had visits to his diabetic care provider twice a month. At the same time, the records do show that he required one or more injections of insulin prior to the May 2021 VA examination. The VA treatment records indicate that he was prescribed and instructed on the use of insulin as early as February 2013. However, he did not have restricted activities at that time. In fact, the opposite was true, as he was instructed on the importance of regular exercise and/or physical activity in several treatment notes from that time. As a result, he is not entitled to the next highest rating of 40 percent for the period prior to the May 2021 examination. He was awarded the 40 percent rating after that examination because the May 2021 examination shows that his activity was limited due to hypoglycemic episodes. No such limitation was noted before that examination. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran has also filed a claim for entitlement to TDIU. At his hearing, the Veteran explained that his diabetes mellitus and various right arm disabilities prevent him from finding or maintaining substantially gainful employment. See June 2019 Hearing Transcript. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38C.F.R. §§3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. He currently has a 20 percent rating effective December 18, 2003 and 40 percent effective May 12, 2021 for diabetes mellitus, type 2. He also has a 10 percent rating for limitation of extension effective July 11, 2011; a 50 percent rating for limitation of flexion effective May 12, 2021; a 30 percent rating for right elbow limitation of pronation effective May 12, 2021; and was just awarded a 60 percent rating for ankylosis. As a result, he has met the threshold requirements for a TDIU claim for the period of May 12, 2021, and thereafter. Consequently, the Board must determine whether the service-connected disabilities precluded him, or were capable of precluding him, from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage.") Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran was self-employed from 1989 to August 2011 and operated his own construction company. He asserted in his claim that he lost two months of work due to illness. He worked 40 hours a week for 22 years. A statement in support of the claim clarified that he stopped working in August 2011 due to his "rated disabilities." He reported worsening PTSD symptoms and anxiety due to his inability to work and complete sedentary work. See June 2012 Statement in Support of Claim. He further reported that he did not have the physical or mental capability to work. See November 2012 Statement in Support of Claim. He again reported that he could not complete sedentary or physical labor due to his anxiety and PTSD disabilities. See March 2013 Statement in Support of Claim. After his claims were denied by the Regional Office, he submitted a VA form 21-8940 where he stated that he was self-employed for 42 years as a contractor and could no longer work because he gets "too sick and dizzy or hot and throw up [sic]" and that his "arm has been in great pain [with] not a lot of movement." The Court has defined "substantially gainful employment" as encompassing both an economic and a noneconomic component. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The economic component of Ray has been met as the Veteran is not employed and has not been able to work due to his right arm disability. See June 2019 Hearing Transcript. The Veteran finished 11th grade but did not graduate from high school. See June 2019 Hearing Transcript. Aside from his years of work experience in construction, he is vocationally limited to the extent that he has not obtained a high school or college degree. His employment history reflects his many years working in construction and running his own business. It is unlikely that he will be able to obtain substantially gainful employment in construction given the unfavorable ankylosis of his right elbow. As such, he has met the non-economic component of his TDIU claim Thus, based on the foregoing evidence, the Board finds that the Veteran has been unable to sustain gainful employment for the period on appeal where he meets the threshold requirement for a TDIU. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate 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.