Citation Nr: 21025919 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-37 357 DATE: April 29, 2021 ORDER Prior to April 8, 2014, an initial 10 percent rating, but not higher, for right elbow tendonitis, is granted. For the entire initial rating period on appeal, a rating higher than 10 percent for right elbow tendonitis, is denied. FINDING OF FACT For the entire initial rating period on appeal, the service-connected right elbow tendonitis manifested by chronic pain with noncompensable limitation of motion and x-ray evidence of arthritis. CONCLUSIONS OF LAW 1. Prior to April 8, 2014, the criteria for an initial 10 percent rating, but not higher, for right elbow tendonitis are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5206. 2. For the entire initial rating period on appeal, the criteria for a rating higher than 10 percent for right elbow tendonitis are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5206. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1990 to December 1993, with additional service in the Army National Guard and Army Reserves. This appeal stems from a July 2013 rating decision that granted service connection for right elbow tendonitis and assigned a noncompensable rating. Thereafter, in a July 2015 rating decision, the RO increased the Veteran’s disability rating to 10 percent, effective April 8, 2014. In March 2019, the Board remanded the claim for further development. In an August 2020 rating decision, the RO granted a separate 30 percent rating for supination and pronation of the right elbow effective December 10, 2019. Increased Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Right Elbow – Rating Criteria The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are Diagnostic Codes 5206 and 5207, applicable to limitation of flexion and extension of the elbow, respectively. The Veteran’s right elbow condition is rated as noncompensable and as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5206. Under Diagnostic Code 5206, a 10 percent rating is warranted for the major elbow where there is forearm limitation of flexion to 100 degrees. Under Diagnostic Code 5207, extension of the major forearm limited to 45 degrees or to 60 degrees warrants a 10 percent rating; extension limited to 75 degrees warrants a 20 percent rating; extension limited to 90 degrees warrants a 30 percent rating; extension limited to 100 degrees warrants a 40 percent rating; and, extension limited to 110 degrees warrants a 50 percent rating. Under DC 5208, a 20 percent rating contemplates a combination of flexion limited to 100 degrees and extension to 45 degrees. Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71 Plate I. Under Code 5213, a 10 percent rating is warranted for limitation of supination to 30 degrees or less. A 30 percent rating is warranted for limitation of pronation with motion lost beyond the last quarter of the arc and the hand not approaching full pronation. 38 C.F.R. § 4.71a. Prior to February 7, 2021, Diagnostic Code 5010 assigned evaluations for arthritis, due to trauma, substantiated by X-ray findings, and provided that the condition was rated as arthritis, degenerative. The rating criteria for degenerative arthritis provided that when the limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent was applicable 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. A 20 percent evaluation was assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Since February 7, 2021, Diagnostic Code 5010 is post-traumatic arthritis, rated 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. Rating Analysis In March 2013, the Veteran underwent a VA elbow and forearm conditions examination, at which time the examiner rendered a diagnosis of right elbow tendonitis. The Veteran reported having flare-ups “every now and then,” at which time he took Motrin. He had persistent pain in the previous two years but denied receiving treatment other than self-treatment with over-the-counter medications. The examiner noted that the Veteran was right-hand dominant. The examiner indicated that the Veteran did not report that flare-ups impacted the function of the elbow. Upon physical examination, range of motion of the right elbow revealed normal flexion to 145 degrees or greater and normal extension to 0 degrees with no objective evidence of pain. There was no additional limitation after repetitive use testing. There was no functional loss/impairment of the right elbow. Muscle strength testing was normal (5/5) throughout. Grip strength was 5/5 with no redness, erythema, swelling, or deformity noted. There was no ankylosis. There was no evidence of flail joint, joint fracture, and/or impairment of supination or pronation. X-rays showed no acute osseous abnormality. The examiner indicated that the right elbow condition did not impact the Veteran’s ability to work. In the January 2014 notice of disagreement, the Veteran indicated that he had pain in the right elbow that increased since the initial injury. In February 2015, the Veteran underwent an additional VA elbow and forearm conditions examination, at which time the examiner confirmed a diagnosis of right elbow tendonitis. The Veteran reported that he continued to have elbow pain especially when lifting. He reported flare-ups that were described as increased pain. Functional loss/impairment was described as difficulty lifting heavy objects. Upon physical examination, range of motion of the right elbow was all normal with flexion to 145 degrees, extension to 0 degrees, forearm supination to 85 degrees, and forearm pronation to 80 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. There was objective evidence of mild localized tenderness upon palpation of the medial aspect of the joint. There was no additional functional loss or range of motion after repetitive use testing. The examiner noted that the Veteran was examined immediately after repetitive use over time and estimated no change in the initial range of motion. Regarding flare-ups, the examiner noted that those occurred twice a month, were moderate in severity, and lasted for two days. The examiner stated that the examination was neither supported nor contradicted the Veteran’s statements describing functional loss during flare-ups. Pain and lack of endurance significantly limited functional ability with flare-ups and resulted in difficulty lifting heavy objects. However, the examiner indicated that it was not possible to describe any additional loss in terms of range of motion. Muscle strength testing was normal throughout with no evidence of reduction in muscle strength or muscle atrophy. There was no evidence of flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. In December 2019, the Veteran underwent an additional elbow and forearm compensation examination, at which time the examiner confirmed diagnoses of right elbow arthritis and right elbow tendonitis. The Veteran reported that his condition worsened. He indicated that he had weakened strength, pain, and painful flare-ups with loss of range of motion. He took Diclofenac twice daily and used a relieving cream. Flare-ups were described as occurring monthly and can last for a week at a time. The flare-ups were usually moderate, but he also had severe flare-ups. Functional loss/impairment was described as difficulty gripping, holding and moving items, and uncertainty with holding objects during flare-ups. Upon physical examination, range of motion of the right elbow revealed flexion to 135 degrees, extension to 0 degrees, forearm supination to 80 degrees, and forearm pronation to 40 degrees. Range of motion itself contributed to functional loss. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. There was mild pain on palpation over the lateral elbow distal to epicondyle. After repetitive use testing, range of motion revealed flexion to 130 degrees, extension to 0 degrees, forearm supination to 75 degrees, and forearm pronation to 40 degrees. The examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss after repeated use over time/during flare-ups; however, concluded that such could not be described in terms of range of motion. The examiner explained that the Veteran reported moderate to severe flare ups that occurred monthly and lasted from days to weeks. Nevertheless, the Veteran could not reliably determine and demonstrate range of motion loss during a flare up or after repetitive use. In addition, the medical records did not identify previous flare ups or any reports after repetitive use where there was a loss of range of motion. Additional factors contributing to the disability included less movement than normal and weakened movement. Muscle strength testing revealed active movement against some resistance (4/5) with no evidence of muscle atrophy. The examiner noted that the slight reduction was due to the diagnosed condition. There was no ankylosis. There was no evidence of flail joint, joint fracture, and/or impairment of supination or pronation. The Veteran used no assistive devices. Upon review of all the evidence, lay and medical, the Board finds that a 10 percent rating, but not higher is warranted for the entire initial rating period on appeal. Notably, throughout the pendency of the appeal, range of motion of the right elbow was at worse limited to 135 degrees flexion, which warrants a noncompensable rating pursuant to DC 5206. Here, the Board assigns a 10 percent rating for the entire rating period on appeal due to pain with noncompensable limitation of motion. In any event, the highest possible rating under DC 5206 is 10 percent, and a rating higher than 10 percent is not warranted. Next, the Board finds that a rating higher than 10 percent is also not warranted pursuant to DC 5207. Notably, extension was normal throughout the pendency of the appeal and did not meet the compensable rating to warrant even a 10 percent rating. Specifically, even considering the Veteran’s reported flare-ups and/or functional loss after repeated use over time, the record did not otherwise show that these reported symptoms over repeated use or during a flareup were so significant as to meet or approximate the criteria for the next-higher rating. Moreover, a compensable rating under Diagnostic Code 5208 is not warranted as the Veteran’s right forearm flexion is not limited to 100 degrees and right forearm extension is not limited to 45 degrees. In this regard, the Board notes that the subsequent to the most recent remand, in an August 2020 rating decision, the RO granted a separate 30 percent rating for right elbow supination and pronation, effective December 10, 2019, the first time such limitation was noted. Prior to December 10, 2019 (the date of the most recent examination) a compensable rating under Diagnostic Code 5213 is not warranted, as there is no evidence of limitation of supination of the right elbow to 30 degrees or less. 38 C.F.R. § 4.71a. Supination of the right elbow has been regarded as normal during the relevant VA examinations prior to the December 2019 examination. Nonetheless, as discussed above, painful motion of a joint due to arthritis equates to limited motion under DC 5010 and is entitled to at least a compensable rating for the entire initial rating period on appeal. However, a rating higher than 10 percent is not warranted because the Veteran has not exhibited traumatic arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Here, just one major joint is involved. To sum, the Board grants a 10 percent rating for the entire initial rating period on appeal and denies a rating higher than 10 percent. In addition, the Board does not disturb the recently assigned separate 30 percent rating pursuant to DC 5213; however, as discussed above, such rating is not warranted prior to December 10, 2019, and the evidence does not support the assignment of higher ratings. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Associate 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.