Citation Nr: 21013152 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-28 812 DATE: March 8, 2021 ORDER Entitlement to a 10 percent rating, but no higher, prior to May 13, 2011, for epicondylitis of the right elbow (right elbow condition) is granted. Entitlement to a rating in excess of 10 percent rating from May 13, 2011, for epicondylitis of the right elbow (right elbow condition) is denied. Entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow (left elbow condition) is denied. FINDINGS OF FACT 1. Prior to May 13, 2011, the Veteran’s right elbow condition was manifested by pain on motion. 2. From May 13, 2011, the Veteran’s right elbow condition is not manifested by flexion limited to 90 degrees or extension limited to 75 degrees. 3. The Veteran’s left elbow condition is not manifested by flexion limited to 90 degrees or extension limited to 75 degrees. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, prior to May 13, 2011, for right elbow condition have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5099-5024 (2019). 2. The criteria for a rating in excess of 10 percent from May 13, 2011 for right elbow condition have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5099-5024. 3. The criteria for a rating in excess of 10 percent for left elbow condition have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5099-5024. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to May 1978, and from April 1985 to April 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2017. The Veteran’s wife, F.H., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in April 2018 and July 2020. The Board finds there has been substantial compliance with its July 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). Where an appeal is from the initial rating assigned with the award of service connection, separate “staged” ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2019). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Entitlement to a compensable rating prior to May 13, 2011, for epicondylitis of the right elbow (right elbow condition), entitlement to a rating in excess of 10 percent from May 13, 2011, for epicondylitis of the right elbow (right elbow condition), and entitlement to a rating in excess of 10 percent for epicondylitis of the left elbow (left elbow condition) The Veteran’s right elbow condition is currently evaluated as noncompensable prior to May 13, 2011, and 10 percent disabling thereafter under Diagnostic Code 5099-5024. The Veteran’s left elbow condition is currently evaluated under 10 percent disabling under Diagnostic Code 5099-5024. See 38 C.F.R. § 4.71a. The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic Code 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71, 38 C.F.R. §§ 4.20, 4.27 (2019). Diagnostic Code 5024 in turn calls for the disability to be rated on limitation of motion, as arthritis, degenerative. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Codes 5206 through 5208 provide the rating criteria for limitation of motion of the elbow. The evidence of record establishes that the Veteran is right-handed. Therefore, for rating purposes, his right arm is considered his major or dominant extremity. 38 C.F.R. § 4.69. Under Diagnostic Code 5206, limitation of flexion of the major forearm to 45 degrees is assigned a 50 percent rating; limitation of flexion to 55 degrees is assigned a 40 percent rating; limitation of flexion to 70 degrees is assigned a 30 percent rating; limitation of flexion to 90 degrees is assigned a 20 percent rating; limitation of flexion to 100 degrees is assigned a 10 percent rating; and limitation of flexion to 110 degrees is assigned a noncompensable rating. Limitation of flexion of the minor forearm to 45 degrees is assigned a 40 percent rating; limitation of flexion to 55 degrees is assigned a 40 percent rating; limitation of flexion to 70 degrees is assigned a 20 percent rating; limitation of flexion to 90 degrees is assigned a 20 percent rating; limitation of flexion to 100 degrees is assigned a 10 percent rating; and limitation of rating to 110 degrees is assigned a noncompensable rating. Under Diagnostic Code 5207, limitation of extension of the major forearm to 110 degrees is assigned a 50 percent rating; limitation of extension to 100 degrees is assigned a 40 percent rating; limitation of extension to 90 degrees is assigned a 30 percent rating; limitation of extension to 75 degrees is assigned a 20 percent rating; limitation of extension to 60 degrees and 45 degrees are assigned a 10 percent rating. Limitation of extension of the minor forearm to 110 degrees is assigned a 40 percent rating; limitation of extension to 100 degrees is assigned a 30 percent rating; limitation of extension to 90 degrees is assigned a 20 percent rating; limitation of extension to 75 degrees is assigned a 20 percent rating; limitation of extension to 60 degrees and 45 degrees are assigned a 10 percent rating. Under Diagnostic Code 5208, a 20 percent rating is assigned for both major and minor forearm where flexion is limited to 100 degrees and extension to 45 degrees. Also, under Diagnostic Code 5213, a 10 percent rating requires impairment of supination to 30 degrees or less for either the major or minor forearm and a 20 percent rating for limitation of pronation, when pronation is lost beyond the middle or last quarter of the arc in either major or minor forearm. Normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion and normal pronation of the forearm is to 80 degrees of pronation and 85 degrees of supination. 38 C.F.R. § 4.71a, Plate I. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation will be assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 U.S.C. § 4.71 a, Diagnostic Code 5003 (2018). After a full review of the record, and as discussed below, the Board concludes that a 10 percent rating, but no higher, prior to May 13, 2011, for the right elbow condition is warranted. However, a rating in excess of 10 percent from May 13, 2011, for the right elbow condition is not warranted. Additionally, a rating in excess of 10 percent for the left elbow is not warranted. Prior to May 13, 2011 In an August 2001 VA examination, there was flexion to 145 degrees in the right and left elbow, and extension to 0 degrees in both elbows. There was pronation 90 degrees right and left, and supination 85 degrees right and left. There was tenderness to the right lateral epicondyle. The examiner diagnosed right and left lateral epicondylitis. In a July 2002 VA treatment record, the Veteran complained of pain in his right elbow and right shoulder. He denied any problems with swelling, redness, or numbness. Upon examination, there was good extension and flexion and strength of the biceps. There was no erythema. There was no edema of the shoulder or elbow region. There was also no discomfort on palpation, and the physician noted full range of motion. There was no palpated crepitus or numbness. Arthralgia of the right elbow was diagnosed. In a December 2005 VA treatment record, bilateral elbow flexion and extension was noted to be 5/5. From May 13, 2011 In a May 2011 statement, the Veteran said that his left arm condition had worsened. In a separate May 2011 statement, the Veteran said that he developed a right arm condition and had suffered problems to date. In another May 2011 statement, the Veteran reported bilateral elbow/arm pain while driving or doing work around the house. In a September 2011 VA examination, the Veteran said his left elbow condition was worse. If he applied pressure to it then that caused pain, rated as a 4 out of 10. Turning a doorknob, pulling or pushing, or diving aggravated his elbow and resting alleviated the pain. The Veteran did not report any flare ups. Upon examination, range of motion was the following: right elbow flexion to 130 degrees with no objective evidence of painful motion, and extension to 0 degrees with no objective evidence of painful motion; left elbow flexion to 125 degrees with objective evidence of painful motion to 90 degrees, and extension to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions with additional loss of range of motion. Right elbow range of motion was flexion to 120 degrees and extension to 0 degrees; left elbow flexion to 110 degrees and extension to 0 degrees. The Veteran reported functional loss. Specifically, there was no functional loss for the right upper extremity; however, there was weakened movement in the left upper extremity. There was tenderness or pain on palpation in the left elbow. There was no ankylosis, flail joint, joint fracture and/or impairment of supination or pronation, or joint replacement. The Veteran said that when he tried to grip something he had difficulty doing so because of the pain. He was self-employed and built lawn furniture, and when he was building things and using a sander, he had trouble gripping the sander due to his pain. In a September 2013 VA examination, the Veteran reported “a little soreness in both” elbows. The pain was intermittent. There were no precipitating factors for the pain; the soreness would last 2 to 3 hours and then went away on its own when he was at rest. The Veteran said he had a hobby shop and did some light wood working, which occasionally caused elbow pain. However, this did not stop him from what he was doing. The Veteran did not report flare ups. Upon examination, range of motion was the following: right elbow flexion to 120 degrees with no objective evidence of painful motion, and extension to 0 degrees with no objective evidence of painful motion; left elbow flexion to 120 degrees with no objective evidence of painful motion, and extension to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions without additional limitation in range of motion. The Veteran had functional loss described as less movement than normal in both elbows. There was localized tenderness or pain on palpation in both elbows. There was no ankylosis, flail joint, joint fracture and/or impairment of supination or pronation, or joint replacement or other surgical procedure. In a June 2016 VA treatment record, the Veteran complained of left elbow pain mostly in the mornings for the past 3 weeks. The Veteran was told to ice his left elbow 2 to 3 times per day. The physician also discussed with him what aggravating motion to avoid and suggested a tennis elbow band. At the February 2017 Board hearing, the Veteran testified that with his right elbow pain occurred if he moved it in a certain way. He was unable to full extend and flex his elbow, and he had pain when doing activities around the house and yard. He also testified that his left elbow had worsened, and he was unable to extend it as much as he used to. The Veteran also experienced pain when he performed certain activities. He said he did not take any medication for his elbows. In a December 2020 VA examination, the Veteran said that he had pain with any elbow movement. The Veteran reported flare ups and said his elbows would get worse at times and make it difficult to perform simple tasks. The Veteran also reported functional loss and described this as difficulty with moving elbows due to pain. He also said he had difficulty sitting with elbows resting on arms of chair because any pressure caused pain. Upon examination, right and left elbow range of motion was normal. Pain was noted on exam at forearm supination but did not result in/cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Regarding the right elbow, the Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain and weakness significantly limited functional ability with repeated use over a period of time. Range of motion was still normal. Regarding the left elbow, the Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time; however, then stated that pain and weakness caused functional loss. Nonetheless, range of motion was normal. For both elbows, the examination was not conducted during a flare up and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain significantly limited functional ability with flare up; however, range of motion was still normal. There were no additional factors contributing to disability. There was no muscle atrophy, ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture or impairment of supination or pronation, or surgical procedures. The Veteran did not use any assistive devices. The Veteran reported functional impact of difficulty driving and sitting due to pain in elbows. The examiner noted that there was no objective evidence of pain on non-weight bearing. Passive range of motion was the same as active range of motion. Objective evidence of pain was present on passive range of motion; however, the findings were the same as with active range of motion. Additional post-service treatment records are silent for any evidence that would show increased ratings for right elbow condition from May 13, 2011, and left elbow condition. Overall, the Board finds that a 10 percent rating is warranted prior to May 13, 2011, for the Veteran’s right elbow condition based on objective evidence of painful motion. The August 2001 VA examiner noted that there was tenderness to the right lateral epicondyle. The Board acknowledges that the July 2002 VA physician did not find discomfort on palpation. However, the record shows that the Veteran complained of pain in his right elbow, which giving the Veteran the benefit of the doubt, occurred on motion as well. However, from May 13, 2011, the evidence is against the finding of a rating in excess of 10 percent for the right elbow condition. The evidence is also against the finding of a rating in excess of 10 percent for the left elbow condition. The Veteran’s 10 percent ratings have been awarded on the basis of the objective evidence of painful motions. 38 C.F.R. § 4.59 (providing that VA policy is to grant at least the minimum compensable rating where there is actually painful motion of a joint); see Burton v. Shinseki, 25 Vet. App. 1 (2011). The record contains no evidence of additional limitation of motion that meets or approximates the criteria for a higher rating. Specifically, the September 2011 VA examination showed the Veteran’s right elbow flexion to be, at worst, 120 degrees, and left elbow flexion to be, at worst, 110 degrees, after 3 repetitions. The September 2013 VA examination showed flexion to 120 degrees in both elbows, and the December 2020 VA examination showed normal range of motion for both elbows. Extension was normal throughout the record. The Veteran has contended that a higher rating is warranted on the basis of pain; but pain without additional limitation of function cannot provide a basis for an increased rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered the Veteran’s statements of record that a higher disability rating is warranted for his bilateral elbow conditions. The Veteran is competent to report symptomatology relating to his right elbow disability because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 469, 470 (1994). Additionally, the examination findings show that the Veteran does not have any of the deformities or limitations that would warrant increased ratings under Diagnostic Codes 5205 or 5208 through 5213. The right and left elbow conditions have never been manifested by ankylosis, flail joint, joint fracture, nonunion of the radius and ulna, impairment of the ulna, impairment of the radius, limitation of pronation beyond the last quarter of the arc, or limitation of supination to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5208, 5209, 5210, 5211, 5212, 5213. Accordingly, ratings in excess of 10 percent due to additional impairment under these diagnostic codes is not warranted. The Board finds that giving the Veteran the benefit of the doubt, a 10 percent rating, but no higher, is warranted for the Veteran’s right elbow condition prior to May 13, 2011. However, from May 13, 2011, for the right elbow, and for the left elbow, the preponderance of the evidence is against the Veteran’s claim for increased ratings. Therefore, the claim, in part, is denied. 38 U.S.C. § 5107; Massey v. Brown, 7 Vet. App. 204 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Total Disability Rating Based on Individual Unemployability (TDIU) Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirements in 38 C.F.R. § 3.155 (a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id. A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F. 3d 1106 (Fed. Cir. 2009). The Veteran has not submitted evidence of unemployability and has never raised a claim for TDIU. He has thus not raised the question of entitlement to a TDIU and the Board need not consider such a claim. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.