Citation Nr: 21006483 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-29 757 DATE: February 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a right elbow disability, to include epicondylitis and degenerative joint disease, is denied. FINDING OF FACT The severity of the Veteran’s right elbow disability is approximated by forward flexion of the right elbow at measurement of at least 145 degrees, with subjective evidence of painful motion, and X-ray evidence of degenerative arthritis. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for a right elbow disability, to include epicondylitis and degenerative joint disease, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code 5206-5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1992 to September 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part denied entitlement to service connection for a left shoulder disability and thoracic outlet syndrome of the left upper back and awarded a 0 percent initial disability rating for a right elbow disability. The Veteran timely appealed. In July 2014, a Decision Review Officer (DRO) decision increased the Veteran’s initial disability rating from 0 percent to 10 percent for his right elbow disability. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As he is presumed to be seeking the maximum possible evaluation and he has not indicated satisfaction with the increased rating, the issue remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board remanded the matters on appeal for additional development in April 2018. As a result of this additional development, including new VA examinations and the proffering of new medical opinions, a rating decision was issued in October 2020 which granted service connection for a left shoulder disability and thoracic outlet syndrome of the left upper back. This award constitutes a full grant of the benefits sought concerning these issues. Therefore, they are no longer before the Board. Concerning the remaining issue on appeal, an increased initial rating for a right elbow disability, the additional development has been completed, and it has been appropriately returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 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; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because 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. 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must 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, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Entitlement to a disability rating in excess of 10 percent for a right elbow disability, to include epicondylitis and degenerative joint disease, is denied. The Veteran maintains entitlement to an initial disability rating in excess of 10 percent for a right elbow disability. The Veteran has been assigned an initial 10 percent rating under Diagnostic Code 5206-5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260. As applied here, hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. In this particular case, the first set of four digits, 5206, is the diagnostic code for limitation of flexion of the forearm; whereas the second set of four digits after the hyphen, 5003, is the diagnostic code used to rate the residuals of degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. §§ 4.20, 4.27, 4.71a, Diagnostic Codes 5003, 5206. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Under Diagnostic Code 5206, limitation of flexion of the forearm at 90 degrees, warrants a 20 percent for a major extremity, and a 20 percent for a minor extremity. Limitation of flexion of the forearm at 70 degrees warrants a 30 percent for the major extremity, and a 20 percent for the minor extremity. Limitation of flexion of the forearm at 55 degrees warrants a 40 percent for the major extremity, and 30 percent for the minor extremity. Limitation of flexion for the forearm at 45 degrees warrants a 50 percent disability rating for the major extremity and a 40 percent for the minor extremity. The Veteran’s right arm is his major extremity. Turning to the evidence of record, in May 2012 the Veteran underwent a VA examination. The Veteran described right elbow pain that increased with activity. On physical examination, right elbow flexion was to 145 degrees or greater, with no objective evidence of painful motion. Right elbow extension was to 0 degrees or there was no limitation of extension, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions without change in range of motion or any functional loss and/or functional impairment of the elbow and forearm. The Veteran exhibited pain on palpation of the right elbow. Muscle strength testing was normal. The Veteran did not exhibit ankylosis of the elbow. He did not have flail joint, joint fracture, and/or impairment of supination or pronation. The Veteran had not undergone elbow joint replacement or any other surgical procedure concerning his right elbow. The examiner did not find a functional impairment of the right elbow such that no effective function remained other than that which would be equally served by an amputation with prosthesis. Diagnostic testing revealed degenerative arthritis of the right elbow. The Veteran was diagnosed with right lateral epicondylitis and degenerative joint disease, and neither were found to impact his ability to work. The Veteran was provided another VA examination in November 2019. There, the Veteran complained of symptoms attributable to his now-service-connected left shoulder disability and thoracic outlet syndrome; he denied any flare-ups of his right elbow disability. On physical examination, right elbow flexion was to 145 degrees. Right elbow extension was to 0 degrees. Forearm supination was to 85 degrees and forearm pronation was to 80 degrees. No pain was noted on examination. There was no evidence of pain with weightbearing, nor was there objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or loss of range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time; however, the examiner found that the examination was medically consistent with the Veteran’s statements describing functional use over time. Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repetitive use over time. Muscle strength testing was normal. The Veteran did not have muscle atrophy. He did not have flail joint, joint fracture, and/or impairment of supination or pronation. The Veteran did not utilize assistive devices. The examiner did not find a functional impairment of the right elbow such that no effective function remained other than that which would be equally served by an amputation with prosthesis. There were no significant diagnostic testing results concerning the Veteran’s right elbow. The examiner noted that the Veteran had no specific complaints about his service-connected right elbow disability at the examination, and that all testing of his right elbow was normal. The record does not contain private or VA treatment records for the Veteran’s service-connected right elbow disability. Summarily, the Board finds that an initial disability rating in excess of 10 percent is not warranted for the Veteran’s right elbow disability. The medical evidence reveals that the degenerative joint disease of the Veteran’s right elbow impacts one major joint group; it does not impact two or more major joint groups with occasional incapacitating exacerbations as is necessary to warrant a higher 20 percent rating under Diagnostic Code 5003. Additionally, the medical evidence has not shown that flexion of the right elbow is limited to no higher than 90 degrees, as is necessary to meet the criterion for a higher 20 percent disability rating under Diagnostic Code 5206. The Board has also considered whether an initial disability rating in excess of 10 percent is warranted based on the DeLuca criteria. However, it finds that an initial increased 20 percent disability is not warranted under these criteria either. There is no evidence that pain, weakness, fatigability or incoordination significantly limits functional ability of the right elbow. Although there is evidence of subjective painful motion of the right elbow, this factor has already been considered and accounted for in the assignment of the initial 10 percent disability rating for the right elbow. Additionally, the medical evidence consistently reflects measurements for flexion of the right elbow that were limited to at least 145 degrees, with no additional functional loss or loss of range of motion on testing for observed repetitive use. Therefore, under these circumstances, there is no basis for assigning a 20 percent rating to reflect flexion of the right elbow that is beyond any limitation reflected in the above-mentioned VA examination reports. DeLuca, 8 Vet. App. at 206 07. The Board has also contemplated whether separate, additional ratings are warranted for the Veteran’s right elbow disability. However, the Veteran has not raised any other issues relating to the assigned rating for the right elbow disability, nor have any other issues, such as, for example, any other diagnoses and/or symptoms that are associated with the right elbow disability been reasonably raised by the record. Based on the foregoing, the Board concludes an initial disability rating in excess of 10 percent for the Veteran’s right elbow disability is not warranted. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.