Citation Nr: 21023050 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-17 706 DATE: April 20, 2021 ORDER Entitlement to a disability rating higher than 30 percent for fracture of the right radius with traumatic arthritis (right forearm disability) prior to September 24, 2020 is denied. Entitlement to a disability rating higher than 60 percent for fracture of the right radius with traumatic arthritis (right forearm disability) from September 24, 2020 is denied. FINDINGS OF FACT 1. Prior to September 24, 2020, the Veteran’s right forearm disability was not manifested by impairment of the flail joint or limitation of flexion to 55 degrees or limitation of extension to 100 degrees. 2. Since September 24, 2020 the Veteran has been receiving the maximum schedular rating for a right forearm disability under Diagnostic Code 5209. CONCLUSIONS OF LAW 1. Prior to September 24, 2020, the criteria for a disability rating higher than 30 percent for fracture of the right radius with traumatic arthritis (right forearm disability) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. 2. From September 24, 2020, the criteria for a disability rating higher than 60 percent for fracture of the right radius with traumatic arthritis (right forearm disability) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service between February and August 1962. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted by a Veterans Law Judge in July 2019. The judge who conducted the hearing has left employment by the Board. The Veteran was informed that she had the right to another hearing to be conducted by a Veterans Law Judge who would decide the claim. The Veteran indicated that she did not want another hearing. In November 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for fracture, right radius with traumatic arthritis, impairment of supination. Where an appealed service-connection claim is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must be filed to initiate appellate review concerning any "downstream" issue, such as the assigned rating or the effective date of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran has not filed an NOD with respect to the grant of service connection for fracture, right radius with traumatic arthritis, impairment of supination. This appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). Increased rating The Veteran's forearm disability is currently rated 30 percent disabling from February 24, 2003 to September 24, 2020 under Diagnostic Codes (DC) 5010-5207. From September 24, 2020, the Veteran’s forearm disability is rated 60 percent disabling under DCs 5010-5209. The Veteran contends that she is entitled to a higher rating for her right forearm disability. Law and regulations Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, so not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Forearm disorders are rated under DCs 5205-09, and 5213 of 38 C.F.R. § 4.71a. Thereunder, disability ratings are authorized for ankylosis and limitation of motion. The evidence of record demonstrates that the Veteran does not have ankylosis in either elbow. As such, the Veteran's disability will be rated based on limitation of motion. Under the rating schedule, normal forearm (elbow) extension and flexion is from 0 to 145 degrees, respectively. Normal forearm pronation and supination is from 0 to 80 degrees and from 0 to 85 degrees, respectively. 38 C.F.R. § 4.71, Plate I. DC 5206 assigns ratings of 0, 10, 20, 20, 30, and 40 percent where forearm flexion of the minor arm is limited to 110, 100, 90, 70, 55, or 45 degrees, respectively. For the major arm, ratings of 0, 10, 20, 30, 40, and 50 percent are warranted where forearm flexion is limited to 110, 100, 90, 70, 55, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5206. DC 5207 assigns ratings of 10, 10, 20, 20, 30, and 40 percent where forearm extension of the minor arm is limited to 45, 60, 75, 90, 100, and 110 degrees, respectively. For the major arm, ratings of 10, 10, 20, 30, 40, and 50 percent are warranted for forearm extension of the minor arm limited to 45, 60, 75, 90, 100, and 110 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5207. The medical evidence of record demonstrates that the Veteran is right-hand dominant. 38 C.F.R. § 4.69. Under DC 5208, a 20 percent rating is warranted in either arm for both flexion limited to 100 degrees and extension limited to 45 degrees. Under Diagnostic Code 5209 joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, warrants a 20 percent rating for the major and minor arm and other impairment of flail joint warrants a 60 percent rating for the major arm. Under DC 5213, 10 percent ratings are warranted for either extremity with supination limited to 30 degrees or less. Twenty percent ratings are warranted in either extremity with pronation lost beyond the last quarter of the arc, where the hand does not approach full pronation. And where pronation is lost beyond the middle of the arc, a 20 percent rating is warranted for the minor extremity and a 30 percent rating is warranted for the major extremity. Higher ratings are warranted under DC 5213 for bone fixation or fusion. As this type of impairment is not present here, it will not be discussed further. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Evidence and analysis The Veteran’s fracture, right radius with traumatic arthritis was rated at 30 percent disabling from February 24, 2003 by the RO in its September 2, 2003 rating decision. The Veteran's fracture, right radius with traumatic arthritis, flail joint was rated as 60 percent disabling from September 24, 2020 by the RO in its October 2020 rating decision. The question before the Board is whether the Veteran is entitled to a higher rating for her forearm disabilities at any time throughout the appeal period. The Board finds that the evidence of record does not warrant a higher rating for the Veteran's forearm disabilities. The Veteran underwent a VA examination in June 2003. See June 2003 VA Examination. The VA examiner reported the Veteran's complaints of right elbow pain. The examiner indicated that the Veteran did not complain of flare-ups but rather of more chronic pain. The Veteran reported that her elbow hurt when she got up in the morning and throughout the day. The examiner noted 130 degrees flexion and 80 degrees extension in the right elbow, with the Veteran unable to extend to the 0 degree position. The examiner indicated that upon palpation to the elbow, tenderness was noted deep within the joint. Additionally, the examiner found some fine crepitus with range of motion with no-non-union noted. The Veteran next underwent VA examination in July 2013. See July 2013 VA Examination. The VA examiner reported the Veteran's complaints of elbow pain. The VA examiner also found range of motion in the right elbow of 125 degrees flexion and 10 degrees extension. Following repetitive use testing, the examiner found a diminished range of motion in the right elbow of 120 degrees flexion and 10 degrees extension. The examiner reported pain on palpation. The examiner also found 3/5 muscle strength on flexion and extension, no atrophy, no ankylosis, no impairment on supination or pronation, and no flail joint. The Veteran underwent another VA examination in February 2017. See February 2017 VA Examination. The VA examiner noted the Veteran's complaints of increased elbow pain. The examiner found flexion of 135 degrees and extension of 55 degrees in the right elbow, with 80 and 85 degrees pronation and supination. The examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found that pain significantly limit functional ability with repeated use over a period of time; however, the examiner found it would be speculative to describe the range of motion since it was not flared at the time of examination. The examiner reported localized pain on palpation in the Veteran’s elbow, but found normal muscle strength, no muscle atrophy, and no ankylosis or flail joint. The Veteran underwent the most recent VA examination in September 2020. See September 2020 VA Examination. The VA examiner noted the Veteran's complaints of forearm pain, stating that she can’t even raise her arms anymore. The examiner reported painful range of motion in the right elbow 125 degrees flexion and 40 degrees extension, and 5 to 70 degrees pronation and supination. The examiner stated repetitive use testing could not be performed due to fear of pain but did estimate functional impairment due to pain as 40 to 125 degrees flexion and extension, 5 to 70 degree supination and pronation. The examiner reported no objective evidence of localized pain on palpation, with 3/5 muscle strength flexion and extension, muscle atrophy, and no ankylosis. The examiner also found that the Veteran had an elbow fracture with a flail joint upon examination. Prior to September 24, 2020 The Veteran was granted a rating of 30 percent from February 24, 2003 as her right forearm extension was limited to 80 degrees at her June 2003 VA Examination. Since her 2003 evaluation, the examiners have found the Veteran to have an extension of 10 degrees in July 2013 and 55 degrees in February 2017, neither of which make her eligible for a higher rating. During this period, the Veteran was, at worst, found to have a flexion of 120 degrees which does not entitle her to a higher rating. Additionally, none of the evidence indicates flexion limitation of 100 degrees or extension limited to 45 degrees in the right arm. The Veteran consistently had 3/5 muscle strength and full supination and pronation of 85 and 80 degrees, respectively. As such, an increased rating is not warranted for the right forearm during this appeal period. C.F.R. § 4.71a, DCs 5206-08, 5213. In assessing these claims, the Board has considered the Veteran's lay assertions. She is competent to report observable symptoms such as pain and limitation in her forearm. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At her Board Hearing in July 2019, the Veteran reported having pain in her right arm every day, affecting her in daily activities such as brushing her hair and sleeping. See July 2019 Hearing Transcript. However, on the issue of the degree of the Veteran's impairment, the medical evidence is more credible. And this evidence preponderates against the notion that the Veteran experiences limitation that would warrant higher ratings here. As the medical evidence is more credible, it is of more probative value. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing the evidence, the Board finds that this medical evidence preponderates against the Veteran's assertions regarding the severity of her elbow disabilities. Finally, DCs 5209 through 5212 address upper extremity disabilities such as flail joints, non-union, or malunion of the radius and ulna. These DCs were not applied because there is no evidence of record of these disabilities. Since September 24, 2020 The Veteran currently has a 60 percent disability rating for right forearm disability for the period since September 2020 under Diagnostic Codes 5003-5209. The 60 percent rating is the schedular maximum for Diagnostic Code 5209. As such, a higher rating under this DC is not available. The Board has considered the Veteran's complaints of pain and other reported functional impairment due to her right elbow symptoms. The Board finds, however, that there are no objective clinical indications that her symptoms result in functional limitation to a degree that would support a rating in excess of the currently assigned ratings under Diagnostic Code 5209, or any other applicable elbow or arm diagnostic code. Thus, the currently assigned disability rating adequately contemplates any functional loss occasioned by pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). (Continued on the next page) For the foregoing reasons the Board finds unwarranted a rating higher than 30 degrees prior to September 24, 2020 and a rating higher than 60 degrees since then. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.