Citation Nr: 21024186 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-58 337 DATE: April 22, 2021 ORDER Service connection for residuals of a low back injury, diagnosed as degenerative arthritis, is granted. A 10 percent rating, but not higher, for a healed left proximal radial head fracture prior to March 10, 2020, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for a healed left proximal radial head fracture beginning March 10, 2020, is denied. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran has residuals of a low back injury diagnosed as degenerative arthritis, that are related to service. 2. The Veteran’s healed left proximal radial head fracture was characterized by noncompensable limitation of motion with painful motion for the entire period on appeal. 3. The evidence of record does not show the Veteran’s left proximal radial head fracture manifested with limitation of pronation or loss of bone fusion for any period on appeal. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for residuals of a low back injury, diagnosed as degenerative arthritis, have been met. 38 U.S.C. § 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2019). 2. The criteria for a 10 percent evaluation, but not higher, for service-connected healed left proximal radial head fracture prior to March 10, 2020, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213 (2019). 3. The criteria for a 10 percent evaluation for service-connected healed left proximal radial head fracture beginning March 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5213 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1994 to April 1995. This case comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This claim was previously before the Board in February 2020, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for residuals of a low back injury The Veteran’s service treatment records reflect complaints of low back pain that caused difficulty with exercising and walking. See October 1994 Screening Note of Acute Medical Care. Chiropractor R. G. submitted a private medical opinion in October 2017 documenting the Veteran’s care for his injuries related to a roll-over accident that occurred during active duty. The Veteran first presented to his office in April 2003 for complaints of neck and back pain, and examinations revealed that the Veteran most likely had lumbar disc herniation. At the January 2020 Board hearing, the Veteran testified that he first injured his back in 1994 during basic training when he was on a foot march with full gear, slipped in the mud, and fell on his back while wearing his ruck sack. The Veteran then went to sick call but later had another accident where he was knocked into a drainage ditch that was below ground level. Following basic training, he worked as a mechanic during service and did a lot of heavy lifting of wheels, tires, and starters and he “also broke down five-ton wheels.” Most of the time, he did not have help during work. Following service, the Veteran worked as a print shop manager and did not do much heavy lifting. The Veteran did not offer any testimony regarding the rollover incident mentioned by Pursuant to the February 2020 Board remand, the Veteran received a VA examination in March 2020 and was diagnosed with degenerative arthritis of the spine. He indicated that the condition began in 1995 when he was injured in basic training and again injured in Advanced Individual Training (AIT). Based on the results of the examination, the examiner concluded that the condition was less likely than not related to service. The examiner found lapses in treatment and unexplained long periods of time between medical care that did not support the contention that the condition was directly related to service. There was no evidence of chronicity of care, and therefore, the condition was less likely than not caused by the claimed in-service injury. Upon careful consideration of this evidence, the Board finds the March 2020 VA examination to be of nominal probative value. The examiner hinges his opinion on the lack of medical records showing continuous treatment and found that there was no evidence of chronicity of care. However, a lack of contemporaneous medical records does not serve as an “absolute bar” to a service connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). On the other hand, the Veteran has credibly testified to two incidents in service that caused his lower back pain, and contemporaneous medical records reflect that the Veteran was seen at that time for these complaints. Furthermore, there is no evidence that the Veteran experienced any injuries to his low back following military service; he testified that he worked as store manager and did almost no heavy lifting in this capacity. Therefore, in light of the Veteran’s contentions and the fact that the Veteran has credibly testified to continuing symptoms since service related to the chronic disorder of degenerative arthritis of the lumbar spine, the Board finds that the evidence is at least in relative equipoise with respect to the cause of the Veteran’s condition. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for residuals of a low back injury, diagnosed as degenerative arthritis, is warranted. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or the illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Healed Left Proximal Radial Head Fracture In November 2016, the RO granted service connection for a healed left proximal radial head fracture at an initial noncompensable rating under Diagnostic Code 5213 beginning May 31, 2016, the date of the Veteran’s claim. In August 2020, the RO granted a 10 percent evaluation, effective March 10, 2020, under Diagnostic Code 5010-5230. Because the claim is an initial claim, the Board will consider evidence of symptomatology from May 31, 2016. 38 C.F.R. § 3.400 (o). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). Diagnostic Code 5010 pertains to arthritis, whereas Diagnostic Code 5213 pertains to impairment of supination and pronation. 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 considered to be contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court 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, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with 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. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Significantly, regulations pertaining to musculoskeletal disabilities were recently amended and new criteria for rating musculoskeletal disabilities became effective on February 7, 2021. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the veteran will apply. Prior to February 7, 2021 Traumatic arthritis was rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating 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 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5206 provides compensation for forearm limitation of flexion. 38 C.F.R. § 4.71a. Where flexion is limited to 110 degrees, a 0 percent rating is provided for the major limb and the minor limb. Id. Where flexion is limited to 100 degrees, a 10 percent rating is provided for the major limb and the minor limb. Id. Where flexion is limited to 90 degrees, a 20 percent rating is provided for the major limb and the minor limb. Id. Where flexion is limited to 70 degrees, a 30 percent rating is provided for the major limb and a 20 percent rating is provided for the minor limb. Id. Where flexion is limited to 55 degrees, a 40 percent rating is provided for the major limb and a 30 percent rating is provided for the minor limb. Id. Where flexion is limited to 45 degrees, a 50 percent rating is provided for the major limb and a 40 percent rating is provided for the minor limb. Id. Diagnostic Code 5207 provides compensation for forearm limitation of extension. 38 C.F.R. § 4.71a. Where extension is limited to 45 degrees, a 10 percent rating is provided for the major limb and the minor limb. Id. Where extension is limited to 60 degrees, a 10 percent rating is provided for the major limb and the minor limb. Id. Where extension is limited to 75 degrees, a 20 percent rating is provided for the major limb and the minor limb. Id. Where extension is limited to 90 degrees, a 30 percent rating is provided for the major limb and a 20 percent rating is provided for the minor limb. Id. Where extension is limited to 100 degrees, a 40 percent rating is provided for the major limb and a 30 percent rating is provided for the minor limb. Id. Where extension is limited to 110 degrees, a 50 percent rating is provided for the major limb and a 40 percent rating is provided for the minor limb. Id. Diagnostic Code 5208 provides a 20 percent rating for both limbs where forearm flexion is limited to 100 degrees and forearm extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5213 provides compensation for impairment of supination and pronation. 38 C.F.R. § 4.71a. For loss of supination and pronation (bone fusion) with loss of bone substance (1 inch (2.5 cm) or more) and marked deformity, a 40 percent rating is provided for a major limb and a 30 percent rating for a minor limb. Id. For loss of supination and pronation (bone fusion) without loss of bone of bone substance or deformity, a 30 percent rating is provided for a major limb and a 20 percent rating for a minor limb. Id. For loss of supination and pronation (bone fusion) with nonunion in upper half, a 20 percent rating is provided for both limbs. Id. For loss of supination and pronation (bone fusion) with malunion (bad alignment), a 10 percent rating is provided for both limbs. Also under Diagnostic Code 5213, for limitation of pronation with motion lost beyond middle of arc, a 30 percent rating is provided for a major limb and a 20 percent rating for a minor limb. 38 C.F.R. § 4.71a. For limitation of pronation with motion lost beyond last quarter of arc (i.e., the hand does not approach full pronation), a 20 percent rating is provided for both limbs. Id. Also under Diagnostic Code 5213, for limitation of supination to 30 degrees or less, a 10 percent rating is provided for both limbs. 38 C.F.R. § 4.71a. Beginning February 7, 2021 As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. There were, however, no changes to Diagnostic Code 5213. There were changes to Diagnostic Code 5010, effective February 7, 2021. The name title of the code changed, indicating that the criteria applies to posttraumatic arthritis. The new criteria also specify that the evaluator is to rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Entitlement to a compensable rating for a healed left proximal radial head fracture prior to March 10, 2020, and a rating in excess of 10 percent thereafter The Veteran received a VA examination in October 2016 and indicated that he was right-hand dominant. He had a diagnosis of a healed left proximal radial head fracture but did not report any flare-ups. Range of motion testing revealed left elbow flexion was from 3 to 140 degrees, extension was from 140 to 3 degrees, and forearm supination and pronation were from 0 to 80 degrees. Pain limited functional ability with repeated use over a period of time, but the examiner was unable to describe in terms of range of motion. Muscle strength testing was normal and there was no muscle atrophy or ankylosis. The Veteran also did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. Imaging studies had been completed but did not reveal any degenerative or traumatic arthritis. On his January 2017 notice of disagreement, the Veteran stated that he informed his October 2016 examiner that he had painful motion of his left elbow. He also stated that the examiner failed to account for him exercising his right to manage his pain with over-the-counter medications. The Veteran later testified at his January 2020 Board hearing that his left elbow symptoms had increased significantly since his October 2016 VA examination. Pursuant to the February 2020 Board remand, the Veteran received a VA examination in March 2020 and the examiner noted a diagnosis of left elbow degenerative arthritis. The Veteran reported daily flare-ups that he described as “severe.” They lasted all day and were precipitated by ay use. The left elbow flare-ups were also alleviated by not using the elbow. Range of motion testing was normal, and there was pain noted on examination in flexion, extension, forearm supination and forearm pronation, but it did not result in functional loss. The examination was being conducted during a flare-up, and the examiner noted that pain significantly limited functional ability with flare-ups. Flexion and extension were limited to 140 degrees, and forearm supination and forearm pronation were limited to 80 degrees. Muscle strength testing was normal and there was no muscle atrophy or ankylosis. The Veteran also did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. Because the Veteran is right-handed, the minor code provisions apply to his left elbow disorder. The Board will resolve reasonable doubt in the Veteran’s favor and find that a 10 percent evaluation is warranted prior to March 10, 2020, for painful motion of the left elbow. Since there has been consistent evidence of pain with some limitation of motion for this period, combined with the credible statements from the January 2017 notice of disagreement, the minimal compensable rating for the joint is warranted, which is 10 percent. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213; DeLuca v. Brown, 8 Vet. App. 202 (1995); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); Burton v. Shinseki, 25 Vet. App. 1 (2011). Given this evidence and applicable law, and affording the Veteran any benefit of the doubt, the Board finds that his left elbow disability more closely approximates the 10 percent rating under Diagnostic Code 5213 for the period prior to March 10, 2020. The Board notes that the Veteran was assigned a disability rating of 10 percent under Diagnostic Code 5010-5213 based on functional loss due to painful motion and x-ray evidence of arthritis. The Board finds that the Veteran is not entitled to an increased rating under DeLuca. There is no additional non-compensated motion that can form the basis of an increased rating and no limitation of motion for which the Veteran is not already receiving compensation. To compensate the Veteran for the same painful motion under 38 C.F.R. § 4.59 and DeLuca would constitute the prohibited practice of pyramiding. See 38 C.F.R. § 4.14. Likewise, prohibitions regarding pyramiding preclude compensation for painful motion under Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia, 28 Vet. App. at 169-70; 38 C.F.R. § 4.59. However, as was noted previously, the Veteran is already being compensated for his painful noncompensable motion and there is no uncompensated limitation of motion that can provide a basis for an increased rating under Correia or on any other basis. The Board has also considered whether the Veteran may be entitled to additional benefits under any other applicable diagnostic code. The record does not reflect that the Veteran suffers from ankylosis of the left elbow, limitation of left forearm flexion to 100 degrees and limitation of left forearm extension to 45 degrees, impairment of flail joint, or nonunion of the radius and ulna. As such, separate ratings are not warranted under Diagnostic Codes 5205, 5208, 5209, or 5210-12. See 38 C.F.R. § 4.71a. Finally, as the Veteran does not have compensable limitation of motion, dislocation, or other specified instability, the revisions implemented to the musculoskeletal rating criteria, effective February 7, 2021, do not offer an option for an increased rating. Based on all of the foregoing, the Board finds that a rating in excess of 10 percent for any period on appeal is not warranted for limitation of motion and arthritis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.