Citation Nr: 21040473 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-04 663 DATE: July 3, 2021 ORDER A rating higher than 10 percent for right elbow chondromalacia, prior to January 17, 2020, is denied. A rating higher than 20 percent for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020, is denied. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to January 17, 2020, the Veteran's right elbow (major extremity) disability did not limit flexion of the forearm to 90 degrees or less; it did not limit extension to 75 degrees or more; and it did not limit flexion to 100 degrees and extension to 45 degrees. 2. Prior to January 17, 2020, the Veteran's right hand was not fixed in full pronation, supination or hyperpronation, and forearm motion was not lost beyond the middle of the arc on pronation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right elbow chondromalacia, prior to January 17, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5206-5208. 2. The criteria for a rating higher than 20 percent for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to October 1998. In January 2021, the Board of Veterans' Appeals (Board) denied increased ratings for right elbow chondromalacia for the period since January 17, 2020. The Board then remanded the increased rating claim, for the period prior to January 17, 2020, to the agency of original jurisdiction (AOJ). The AOJ substantially complied with the Board's remand instructions, and the claim is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider 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). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. A rating higher than 10 percent for right elbow chondromalacia, prior to January 17, 2020 The Veteran's right elbow disability is rated at 10 percent, based on painful motion, for the period prior to January 17, 2020. This is the minimum compensable rating available of the elbow joint, as provided by 38 C.F.R. § 4.59. See October 2018 supplemental statement of the case. After careful review, the Board finds that an increased rating is not warranted. Diagnostic Codes 5205 through 5213 address disabilities of the elbow and forearm. 38 C.F.R. § 4.71a. The record does not show that the Veteran had ankylosis of the elbow, a flail joint, joint fracture, or nonunion of the radius and/or ulna, prior to January 17, 2020. He does not argue otherwise. Thus, Diagnostic Codes 5205 and 5209-5212 do not apply in this case. The relevant diagnostic codes here are 5206, 5207, and 5208, which provide ratings based on limitation of flexion and/or extension of the forearm. Because the Veteran is right-handed, the rating criteria for the major extremity apply. Under Diagnostic Code 5206, a 10 percent rating is assigned where flexion of the forearm is limited to 100 degrees. A 20 percent rating is assigned where flexion is limited to 90 degrees. A 30 percent rating is assigned where flexion is limited to 70 degrees in the major extremity. A 40 percent rating is assigned where flexion is limited to 55 degrees in the major extremity. A maximum 50 percent rating is assigned where flexion is limited to 45 degrees in the major extremity. Id. Under Diagnostic Code 5207, a 10 percent rating is assigned where extension of the forearm is limited to 45 or 60 degrees. A 20 percent rating is assigned where extension is limited to 75 degrees. A 30 percent rating is assigned where extension is limited to 90 degrees in the major extremity. A 40 percent rating is assigned where extension is limited to 100 degrees in the major extremity. A maximum 50 percent rating is assigned where extension is limited to 110 degrees in the major extremity. Id. Alternatively, a 20 percent rating is available under Diagnostic Code 5208 where forearm flexion is limited to 100 degrees and extension is limited to 45 degrees. Id. In January 2021, the Board found the May 2013, March 2016, and August 2018 VA examinations inadequate because they did not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board remanded for a retrospective medical opinion on the severity of the Veteran's disability, including due to flare-ups and repetitive use, prior to January 17, 2020. A VA examiner reviewed the claims file and provided a retrospective opinion in March 2021. The 2021 examiner used the Veteran's 2003 examination to establish a baseline. In 2003, the Veteran reported 6/10 daily pain. The examination revealed full range of motion without pain. The 2021 examiner found no evidence of pain on active, passive, weight-bearing, or non-weight-bearing motion. Overall, the 2021 examiner indicated it is less likely than not that he experienced measurable loss of range of motion during flare-ups or with repetitive use at that time. The 2021 examiner noted that the Veteran denied flare-ups and had normal range of motion without pain, including on observed repetitive use, during the 2013 examination. The 2021 examiner indicated there would have been no pain, and range of motion would have been equivalent, on passive, active, weight-bearing, and non-weight-bearing motion. The 2021 examiner also indicated there would have been no additional loss of range of motion during flare-ups or with repetitive use over time. The 2021 examiner noted that the Veteran's initial range of motion was 130 degrees on flexion and 0 degrees on extension at the 2016 examination. On observed repetitive use, flexion was 110 degrees and extension remained 0 degrees. There was no evidence of pain on weight-bearing. The 2021 examiner indicated that range of motion would have also been 110 degrees on flexion and 0 degrees on extension during flare-ups and with repeated use over time. The 2021 examiner also noted that initial range of motion was "near-normal" at 140 degrees on flexion and 0 degrees on extension during the 2018 examination. There was no change on observed repetitive use. The 2021 examiner found that pain likely occurred at the limits of motion on active, passive, weight-bearing, and non-weight-bearing motion. Overall, the examiner indicated it is at least as likely as not that the Veteran experienced a 0-5 degree loss of motion across all planes with flare-ups and repetitive use over time. In other words, the 2021 examiner found that pain did not significantly limit range of motion before January 2020, even during flare-ups or with repeated use over time. The retrospective opinion is based on objective clinical findings, as well as the Veteran's own lay statements. The Board finds it highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). The opinion is also consistent with other evidence of record, including non-VA medical records from 2019. These records reflect that there was no restriction of range of motion on examination. Accordingly, the preponderance of evidence is against finding that the Veteran's disability limited flexion to 90 degrees or extension to 75 degrees during the period on appeal. It is also against finding that the disability limited flexion to 100 degrees and extension to 45 degrees. This is the case even when considering functional loss due to flare-ups and with repeated use. There is no reasonable doubt to resolve in the Veteran's favor in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A rating higher than 10 percent, prior to January 17, 2020, is denied. 2. A rating higher than 20 percent for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020 The Veteran is assigned a separate 20 percent rating for limitation of pronation due to right elbow chondromalacia, prior to January 17, 2020. The Board finds that an increased rating is not warranted for the period on appeal. Under Diagnostic Code 5213, a 20 percent rating is assigned where the hand is fixed near the middle of the arc or in moderate pronation, or where motion is lost beyond the last quarter of the arc and the hand does not approach full pronation. A 30 percent rating is assigned for the major extremity where the hand is fixed in full pronation, or where motion is lost beyond the middle of the arc. A maximum 40 percent rating is assigned for the major extremity where the hand is fixed in supination or hyperpronation. 38 C.F.R. § 4.71a. The 2021 retrospective opinion addresses impairment of pronation and supination. The 2021 examiner explained that pronation and supination were not noted on the 2003 or 2013 examinations, but would presumably be consistent with flexion and extension. As discussed above, the 2021 examiner indicated there was no loss in flexion or extension, even with flare-ups or repetitive use, during the same timeframe. The 2021 examiner noted that the Veteran's initial range of motion was 80 degrees on supination and 80 degrees on pronation at the 2016 examination. On observed repetitive use, supination stayed the same but pronation was 65 degrees. The 2021 examiner estimated that range of motion would have also been 80 degrees on supination and 65 degrees on pronation during flare-ups and with repeated use over time. The 2021 examiner found that range of motion would be the same on active, passive, weight-bearing, and non-weight-bearing motion. The 2021 examiner noted that initial range of motion was 80 degrees on supination and 80 degrees on pronation at the 2018 examination as well. There was no change on observed repetitive use. The 2021 examiner found that pain likely occurred at the limits of motion on active, passive, weight-bearing, and non-weight-bearing motion. Overall, the examiner indicated it is at least as likely as not that the Veteran experienced a 0-5 degree loss of motion across all planes with flare-ups and repetitive use over time. The Board finds the retrospective opinion highly probative with respect to pronation and supination, as it is based on objective clinical findings and the Veteran's lay statements. Nieves-Rodriguez, 22 Vet. App. at 304. This opinion establishes that his right hand was not fixed in full pronation, supination or hyperpronation, and that forearm motion was not lost beyond the middle of the arc on pronation, even during flare-ups and with repetitive use over time. The Board finds no evidence to the contrary in the record. In sum, the preponderance of evidence is against an increased rating based on limitation of pronation for the period on appeal. As such, there is no reasonable doubt to resolve in the Veteran's favor. Gilbert, 1 Vet. App. at 53. A rating higher than 20 percent, prior to January 17, 2020, is denied. REASONS FOR REMAND In a July 2013 statement, the Veteran wrote that he was unable to work due to service-connected right and left elbow disabilities. In February 2021, he requested a TDIU based on these disabilities, stating that he has not worked in several years because he cannot type. The AOJ denied a TDIU in an April 2021 rating decision. The Board has jurisdiction over the TDIU issue as it is "part and parcel" of the right elbow increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Remand for additional development is warranted. The Veteran indicated in February 2021 that the Social Security Administration (SSA) determined he was disabled five years ago. A preliminary SSA report from 2021 confirms that he received disability benefits during the period on appeal. On remand, the AOJ should obtain a complete set of the Veteran's federal records from the SSA. Additionally, the AOJ should again ask the Veteran to complete and return a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board notes that VA's duty to assist is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is thus expected to participate in the development of his claim by providing the necessary information about his employment history. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete and return a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 3. Readjudicate the TDIU issue. If a TDIU remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.