Citation Nr: 21006814 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-18 942A DATE: February 5, 2021 ORDER Effective October 13, 2020, a 10 percent rating for limitation of flexion status-post remote distal right humerus fracture is granted. Prior to October 13, 2020, an initial compensable rating for limitation of flexion status-post remote distal right humerus fracture is denied. FINDING OF FACT The status-post remote distal humerus fracture more nearly approximates limitation of flexion to 100 degrees as of October 13, 2020, but prior to October 13, 2020, the disability does not result in painful flexion or limitation of flexion to less than 110 degrees. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating effective October 13, 2020, based on limitation of flexion have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5206. 2. The criteria for an initial compensable rating prior to October 13, 2020, based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5206. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1988 to February 1992, from March 2003 to October 2003, and from January 2006 to December 2006. The Veteran served in combat in Iraq and his decorations include the Combat Action Ribbon The Veteran presented sworn testimony at a hearing before the undersigned in May 2019. Service connection for remote distal fracture of the right humerus has been granted effective from November 9, 2011. See November 2020 rating decision. Separate compensable ratings have been assigned for limitation of extension, impairment of supination and pronation, and neuropathy. Those ratings are not before the Board at this time; notably, the Veteran has distinct appeal streams as to the propriety of the ratings assigned for limitation of extension and neuropathy. Under Diagnostic Code 5206, a noncompensable rating is warranted where the evidence demonstrates forearm flexion limited to 110 degrees, for either the major or minor upper extremity. To be entitled to the next-higher 10 percent rating, the evidence must show forearm flexion limited to 100 degrees, for either the major or minor upper extremity. A 20 percent rating is assigned for flexion limited to 90 degrees. 38 C.F.R. § 4.71a. A June 2012 VA examination record reveals the Veteran’s history of vague right elbow discomfort with pushups. The Veteran reported that he was able to perform push-ups without limitation. He denied flares. Range of motion testing revealed flexion to 145 degrees or greater without pain. There was no change in range of flexion after repetition. There was no functional loss or impairment. A December 2016 VA treatment record reports that the Veteran had normal range of motion and normal muscle bulk and tone. An August 2017 VA examination record reveals the Veteran’s history of pain in the right forearm with some dorsal forearm numbness. He denied flares. Range of motion testing revealed flexion to 110 degrees. There was no pain with flexion and no additional limitation of motion after repetition. The examiner determined pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over time. A May 2019 Disability Benefits Questionnaire (DBQ) filled out by the Veteran reveals the Veteran’s history of “severe pain, function, range of motion, [and] nerve damage (numbness/tingling).” The record does not report range of motion findings or state the location of the reported pain. An October 13, 2020, VA examination record reports the Veteran’s history of chronic pain in lateral mid upper arm and burning and numbness in the forearm. He denied flares. Range of motion testing revealed flexion to 95 degrees. There was pain with flexion, but it did not cause functional loss. There was no change in range of motion after repetition. The examiner determined pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over time or flares. There was not pain with passive range of motion testing. In an addendum, the examiner noted that both arms had the same limitation of extension and that flexion would be limited to 110 degrees due to body habitus if the arm were normal. An October 27, 2020, VA examination record reveals the Veteran’s history of inability to fully extend the elbow since in-service fracture. He reported daily severe flares. The record reports flexion to 135 degrees. There was no pain with flexion. There was no change in range of flexion after repetition. The examiner estimated that flexion would be limited to 125 degrees after repeated use over time or during a flare. The Board finds a 10 percent rating is warranted effective October 13, 2020, based on the evidence of limitation of flexion to 95 degrees on that date. The Board finds a rating higher than 10 percent is not warranted from that date. Notably, the October 13, 2020, examination is the only clinical finding of flexion limited to 95 degrees; the October 27, 2020, VA examination indicates that flexion would only be limited to 125 degrees with flares or after repeated use. The Board finds the effect on flexion, which is predominantly shown to be minimal, most nearly approximates the disability picture contemplated by the 10 percent rating than that in the 20 percent rating, which is assigned for limitation of flexion to 90 degrees. The Board further finds a compensable rating is not warranted prior to October 13, 2020. The record consistently reveals findings of flexion to at least 110 degrees, and there is no evidence that the flexion is associated with pain during this period. Notably, clinical findings consistently report flexion without pain, and the record does not reveal any histories of painful flexion. To the extent the Veteran reported generally painful motion during this period, the Board notes that it is contemplated in the ratings assigned for limitation of extension and neurological impairment and assigning a compensable rating for this period would result in pyramiding. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.