Citation Nr: 21005546 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 06-35 619 DATE: February 1, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for residuals of right elbow surgery with limitation of flexion/extension is denied. REMANDED Entitlement to total disability due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected right elbow disability has been manifested by pain, muscle atrophy, and limitation of flexion to 120 degrees and limitation of extension to 25 degrees. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for residuals of right elbow surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5206-5207. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to October 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue has a long and extensive procedural history discussed extensively in the March 2016 Board Remand. The Board also remanded for further development in October 2010, August 2012, and November 2017. The Board notes that the issue of entitlement to TDIU was properly raised by the record in the August 2012 Board remand. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an evaluation in excess of 10 percent for residuals of right elbow surgery The Veteran is currently in receipt of a 10 percent disability rating for residuals, right elbow surgery (major) with impairment of flexion/extension under Diagnostic Code (DC) 5207. 38 C.F.R. § 4.71a. The Board notes that the Veteran is separately service connected for residuals, right elbow surgery (major) with impairment of supination/pronation, currently evaluated at 20 percent (DC 5213), status post surgical scar, right elbow, evaluated at 10 percent (DC 7804), and right carpal tunnel syndrome and traumatic peripheral neuropathy of the right upper extremity evaluated at 40 percent (DC 8513). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Disabilities of the elbow and forearm are contemplated by DCs 5205 through 5213. The terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. 38 C.F.R. § 4.69. As the evidence of record reflects the Veteran is right-hand dominant, ratings for the major side will be considered. Limitation of flexion of the forearm is rated under DC 5206. A 10 percent rating is warranted where flexion of either elbow is limited to 100 degrees. A 20 percent rating is warranted where flexion of either elbow is limited to 90 degrees, or where flexion of the minor elbow is limited to 70 degrees. A 30 percent rating is warranted where flexion of the major elbow is limited to 70 degrees, or where flexion of the minor elbow is limited to 55 degrees. A 40 percent rating is warranted where flexion of the major elbow is limited to 55 degrees, or where flexion of the minor elbow is limited to 45 degrees. A maximum 50 percent rating is warranted where flexion of the major elbow is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5206. Limitation of extension of the forearm is rated under DC 5207. A 10 percent rating is warranted where extension of either elbow is limited to 60 degrees. A 20 percent rating is warranted where extension of either elbow is limited to 75 degrees, or where extension of the minor elbow is limited to 90 degrees. A 30 percent rating is warranted where extension of the major elbow is limited to 90 degrees, or where extension of the minor elbow is limited to 100 degrees. A 40 percent rating is warranted where extension of the major elbow is limited to 100 degrees, or where extension of the minor elbow is limited to 110 degrees. A maximum 50 percent rating is warranted where extension of the major elbow is limited to 110 degrees. 38 C.F.R. § 4.71a, DC 5207. Additionally, DC 5208 provides a 20 percent rating for flexion of the major forearm limited to 100 degrees with extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5208. Normal ranges of elbow motion are zero degrees extension and 145 degrees flexion; and forearm pronation and supination are 80 and 85 degrees, respectively. 38 C.F.R. § 4.71 Plate I. Medical treatment records reflect ongoing complaints of pain and other residuals of right elbow surgeries in November 2005 and April 2006. In May 2009, the Veteran was afforded a VA examination for his right elbow disability. Range of motion testing revealed flexion of 130 degrees with no pain; extension of 0 degrees; pronation of 80 degrees; and supination of 70 degrees. The examiner noted symptoms of pain and stiffness, but the Veteran denied any deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, or any other symptoms. The Veteran was scheduled for an examination in March 2017 but did not attend because the scheduling letter was sent to the wrong address. In August 2020, the Veteran was afforded a VA examination for his right elbow. The Veteran had diagnoses of degenerative arthritis of the right upper extremity, elbow osteoarthritis, and residuals of right elbow surgery. The Veteran reported he is unable to straighten the elbow, cannot pull a door open, and experiences significant pain. Range of motion testing revealed flexion of 0 to 120 degrees; extension of 120 to 0 degrees, supination of 0 to 50 degrees, and pronation of 0 to 50 degrees. The examiner indicated that the range of motion limitation did not constitute a functional loss itself. The examiner further noted pain on extension but indicated it did not result in functional loss. The examiner indicated the Veteran did not exhibit additional loss of function or range after three repetitions. The examiner opined that the Veteran would have no additional loss of flexion, extension, supination, or pronation during a flare up. The elbow demonstrated reduced 4/5 muscle strength on flexion and extension. The examiner noted moderate atrophy of the right distal biceps. The examiner opined the Veteran’s limited range of motion, pain, and weakness of the right elbow would impact his ability to perform physical work tasks requiring the right arm such as reaching, lifting, pulling, and driving. The examiner noted no evidence of pain on non-weightbearing and identical passive range of motion. In his VA form 9, the Veteran indicated he disagreed with his 10 percent rating for his right shoulder disability because he required two surgeries for it. The Board notes that the Veteran was granted temporary total disability for convalescence following both surgeries. Upon review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s right elbow disability based on limitation of flexion or extension for the period on appeal. At no time during the period on appeal was the Veteran’s limitation of extension measured to at least 75 degrees, nor was limitation of flexion to at least 90 degrees warranting a 20 percent disability rating. Rather, although he complained of pain, he was shown to have extension limited to 120 degrees and flexion limited to 120 degrees in his right elbow. Without evidence that the disability has resulted in limitation of flexion of the right elbow to 90 degrees or limitation of extension of the right elbow to 75 degrees, an evaluation in excess of 10 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5206, 5207. The Board notes that the Veteran is separately evaluated under Diagnostic Code 5213 for limitation of pronation and supination. The Board acknowledges that the Veteran’s right elbow disability has also resulted in pain on motion. However, the VA examinations note no additional functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination. As the 10 percent rating already assigned is based entirely on the Veteran’s complaints of pain and additional functional loss, the Board finds that Veteran’s right elbow disability did not result in additional functional loss not contemplated by the 10 percent rating. The Board thus finds that the current rating assigned for the right elbow during the period on appeal sufficiently compensates the Veteran for the extent of his functional loss due to limited movement and pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered whether higher disability ratings are warranted under an alternative diagnostic code relating to disabilities of the elbow and forearm. However, the evidence of record does not show ankylosis, forearm flexion limited to 100 degrees with extension limited to 45 degrees, joint fracture, nonunion of the radius and ulna, or impairment of the radius or ulna. See 38 C.F.R. § 4.71a, DCs 5205, 5208, 5209, 5210, 5211, 5212. Accordingly, higher disabilities ratings are not warranted under an alternative diagnostic code. The Board therefore concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s right elbow residuals, and the claim is denied. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to total disability due to individual unemployability (TDIU) is remanded. Although the Board regrets further delay in the adjudication of this issue, after reviewing the evidence of record the Board finds that a remand for further development is necessary. In its August 2012 remand, the Board directed the RO to develop a TDIU claim based on the issue being raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The November 2017 Board remand again directed the issue of development of the TDIU claim. The Board is unable to adjudicate the Veteran’s TDIU claim because it does not have the necessary information about the Veteran’s employment and educational history. The Board notes that the RO sent multiple letters instructing the Veteran to complete, sign, and return an enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. VA’s duty to assist is not always a one-way street and if a Veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). However, given that the record demonstrates the Veteran has generally responded to requests for information and has had issues with mail going to the wrong address, the Board will direct the RO to attempt to complete development on the TDIU claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940). 2. Then, schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his service-connected right arm disability and PTSD. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by the service-connected disabilities including his right arm disabilities, lower extremity disabilities, and PTSD. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.