Citation Nr: 21031183 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-30 284 DATE: May 20, 2021 ORDER A rating in excess of 10 percent, for the period from March 26, 2013 to August 4, 2019, for a right medial epicondylitis characterized as elbow strain is denied. A rating in excess of 30 percent, effective August 5, 2019, for a right medial epicondylitis characterized as elbow strain is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. During the period from March 26, 2013 to August 4, 2019, the Veteran's right medial epicondylitis ("right elbow disability") characterized as elbow strain has been characterized by no more than range of motion measurements including flexion to 140 degrees, normal extension, pronation from 0 to 80 degrees, supination from 0 to 85 degrees, and functional loss including pain on palpation on movement and localized tenderness. 2. During the period effective August 5, 2019, the Veteran's right elbow disability has been characterized by no more than range of motion measurements including flexion from 0 to 145, extension from 145 to 0, supination from 0 to 85, and pronation from 80 to 0 degrees. Additional functional limitation during flare-ups include pain, fatigue, weakness, and lack of endurance with no evidence that the hand was fixed in supination or hyperpronation. 3. The Veteran's service-connected disorders make him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, for the period from March 26, 2013 to August 4, 2019, for a right elbow disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213 (2020). 2. The criteria for a rating in excess of 30 percent, effective August 5, 2019, for a right elbow disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213 (2020). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1976 to October 1979. Entitlement to a rating in excess of 10 percent for the period from March 26, 2013 to August 4, 2019 and in excess of 30 percent effective August 5, 2019 for a right elbow disability Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Diagnostic Code 5213 applies to impairment of supination and pronation. 38 C.F.R. § 4.71a. Under Diagnostic Code 5213, a 40 percent rating is assigned when the hand is fixed in supination or hyperpronation with respect to the major extremity. A 30 percent rating is assigned for the major extremity when the hand is fixed in full pronation or when there is loss of pronation from beyond the middle of the arc for the major extremity. A 20 percent rating is assigned where the hand is fixed near the middle of the arc or moderate pronation, or motion lost beyond the last quarter of the arc, where the hand does not approach full pronation with respect to the major extremity. Limitation of supination to 30 degrees or less is assigned a 10 percent rating for both arms. Id. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. In June 2014, the Veteran was afforded a VA examination. The Veteran's range of motion included flexion from 0 to 140 degrees and no limitation of extension. The examiner also noted that the Veteran's elbow pronation was from 0 to 80 degrees with supination from 0 to 85 degrees. The examiner indicated that flare-ups effect the Veteran's ability to use his elbow for several minutes. The examiner also noted functional loss including pain on palpation and movement and localized tenderness. In a January 2015 treatment note, the Veteran reported increased elbow pain and agreed to physical therapy to improve range of motion. In a July 2015 treatment note, the Veteran reported pain and stiffness in his elbow with activity. The clinician noted that an April 2014 X-Ray study indicated no bone abnormalities. In a May 2015 lay statement, the Veteran noted that his right elbow lacks strength and his disability makes it difficult for him to keep his job as a manager at an oil change shop. In the Veteran's October 2016 hearing testimony, he reported that his elbow condition had worsened. The Veteran also indicated that he could no longer work at the oil change shop as a mechanic or as a service writer because both jobs required the extensive use of his elbow. The Veteran was wearing a brace at his October 2016 hearing. In August 2019, the Veteran was afforded a VA examination. The examiner noted a diagnosis for medial epicondylitis. The examiner also noted that the Veteran was right-hand dominant. The examiner noted that the Veteran's range of motion measurements included flexion from 0 to 145, extension from 145 to 0, supination from 0 to 85, and pronation from 80 to 0 degrees. These range of motion measurements were consistent after observed repetitive use, repeated use over time, and during flareups. The examiner also noted that the Veteran's passive and active range of motion were the same and no pain was noted during active or passive ROM. In addition, the examiner noted no pain on weight bearing. The examiner noted additional functional limitation during flare-ups including pain, fatigue, weakness, and lack of endurance. There was no evidence that the Veteran's hand is fixed in supination or hyperpronation with respect to the major extremity. During the period from March 26, 2013 to August 4, 2019, the Veteran's right elbow disability has been characterized by no more than range of motion measurements including flexion to 140 degrees, normal extension, pronation from 0 to 80 degrees, supination from 0 to 85 degrees, and functional loss including pain on palpation and movement, and localized tenderness. The preponderance of the evidence is against the assignment of a rating greater than 10 percent under 38 C.F.R. § 4.59. The Veteran's right elbow sprain could be rated under other Diagnostic Codes including 5213 for limitation of motion. However, the Veteran's limitation of motion was not severe enough to warrant a rating under these alternative Diagnostic Codes during the applicable period. During the period effective August 5, 2019, the Veteran's right elbow disability has been characterized by no more than range of motion measurements including flexion from 0 to 145, extension from 145 to 0, supination from 0 to 85, and pronation from 80 to 0 degrees, including with repetitive use, repeated use over time, and during flareups. Additional functional limitation during flare-ups includes pain, fatigue, weakness, and lack of endurance with no evidence that the hand was fixed in supination or hyperpronation. The preponderance of the evidence is against the assignment of a rating greater than 30 percent under Diagnostic Code 5213. A 40 percent rating is not warranted because the Veteran's hand is not fixed in supination or hyperpronation. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's combined disability rating is 70 percent. The assigned combined evaluation of 70 percent for the Veteran's service-connected disabilities meets the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16 (a). Thus, the Veteran is eligible to receive TDIU benefits. In a May 2015 lay statement, the Veteran noted that his right elbow lacks strength and his disability makes it difficult for him to keep his job as a manager at the oil change store. In a separate May 2015 lay statement, the Veteran noted that he lost his job as the manager due to his service-connected right elbow disabilities and due to his PTSD medication. The Veteran also stated that medication taken for his service-connected disabilities caused him to fail a drug test, which resulted in his termination. In the Veteran's October 2016 hearing testimony, he clarified that he was not terminated from the oil change shop and stated that he left the job because he could no longer perform his duties. In the Veteran's October 2016 hearing testimony, he also noted that he had to leave his job at the oil change shop due to a brain aneurysm caused by his PTSD. Evidence indicates the Veteran stopped working in May 2015. The Veteran also stated that his PTSD made it difficult for him to work with other employees and customers. The Veteran explained that he could no longer work as a mechanic or as a service writer because both jobs required the extensive use of his elbow. The Veteran reported that he is un-hirable in his field as a mechanic and beyond the age at which he could learn a new field. In July 2017, the Veteran's VA psychiatrist wrote that the Veteran's PTSD and depression required continuing treatment. The psychiatrist noted recurrent PTSD flashbacks, nightmares, severe anxiety, and depression. The letter also indicated that the Veteran is unable to work in any capacity due to his PTSD and depressive disorder. In September 2017, the Veteran was afforded a VA examination. The clinician noted occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In July 2019, the Veteran was afforded a VA mental examination. The Veteran was noted to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran stated that he is in contact with one of his sons, who lived near him and has four grandchildren. The examiner observed that the Veteran was cooperative and behaved appropriately throughout the examination. The examiner noted that the Veteran's short- and long-term memory appeared to be intact and his judgement and insight were within normal limits. The Veteran stated that he stopped working due to an aneurism in May 2014 and is unable to work as a mechanic due to constant pain in his arms and back. As noted, other evidence indicates the Veteran stopped employment in May 2015. An August 2019 examiner noted that the Veteran's right carpel tunnel syndrome is his most disabling condition, is not related to the Veteran's elbow medial epicondylitis, and is the primary reason the Veteran is unable to work as a mechanic. Although right carpel tunnel syndrome is not a service-connected condition, the examiner also noted that the Veteran's right elbow medial epicondylitis would also impair his ability to use tools with his right hand and forearm. The examiner also noted that the Veteran experiences intermittent right ulnar neuropathy. The examiner concluded that any of the Veteran's right upper extremity conditions would limit his ability to be a mechanic or perform other jobs requiring heavy lifting or carrying with the right hand, such as construction, warehouse work, or painting. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. VA may consider the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The evidence indicates that the Veteran's right elbow disability sprain and PTSD cause occupational impairment. The Veteran's elbow disability has been noted to prevent the Veteran from vigorously using hand tools. The Veteran has testified that he cannot perform his occupational duties as a mechanic because of his physical limitations. The Veteran has also stated that he is unable to work because his PTSD makes it difficult for him to work with other employees and customers. The Veteran's psychiatrist also opined that the Veteran was unable to work in any capacity due to PTSD. The evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Based on the above analysis, the competent, credible, and probative evidence demonstrates that the Veteran's service-connected disabilities render him unemployable. In resolving all doubt in the Veteran's favor, entitlement to a TDIU has been established and his appeal is granted. 38 C.F.R. § 4.16 (2020). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wozniak, 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.