Citation Nr: 21041033 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-32 442 DATE: July 8, 2021 ORDER Entitlement to a rating greater than 20 percent rating for right lateral and medial epicondylitis is denied. Entitlement to an effective date earlier than August 2, 2016, for a 20 percent rating for right lateral and medial epicondylitis is denied. REMANDED Entitlement to an effective date earlier than August 2, 2016 for a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. Entitlement to an effective date earlier than August 2, 2016 for Dependents' Educational Assistance (DEA) under Chapter 35 is remanded. FINDINGS OF FACT 1. The impairment of supination and/or pronation of the right forearm is not manifested by limitation of pronation with motion lost beyond middle of arc or the hand fixed in full pronation, supination or hyperpronation; right forearm flexion and extension is full on examination and without pain. 2. On May 2, 2016, the RO received a formal claim for a TDIU which the AOJ construed as a formal claim for an increased rating for his service-connected right elbow disability; prior to this date there is no evidence that the Veteran filed a claim for an increased rating claim for this disability, nor was there a factually ascertainable increase in severity within one year prior to this date. 3. The Veteran is first shown to have satisfied the criteria under VA's Rating Schedule for a higher 20 percent rating for his right elbow disability on the date of his December 2016 VA examination. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for right medial and lateral epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (Codes) 5206-5207, 5213. 2. The criteria for an effective date earlier than May 2, 2016, for the award of a 20 percent rating for right medial and lateral epicondylitis have not been met. 38 U.S.C.S. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to March 2001, January 2002 to February 2003, July 2006 to August 2007, September 2007 to June 2010 and September 2011 to June 2013. His primary military specialty was vehicle maintenance. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2016 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In February 2021, the Veteran withdrew his earlier request to testify at a Board hearing. I. Rating Greater than 20 Percent for Right Medial and Lateral Epicondylitis In the January 2017 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for his right elbow disability from 10 to 20 percent disabling, effective August 2016. The Veteran appeals for a higher rating. The Rating Schedule distinguishes between the major/dominant extremity and the minor/non-dominant extremity for rating purposes. 38 C.F.R. § 4.69. In this case, the record shows that the Veteran is right-handed. Thus, his service-connected right elbow disability affects his major extremity. It should also be noted that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. However, these changes do not affect the pertinent diagnostic codes discussed below regarding the elbow and forearm. As a starting point, there has been no suggestion of ankylosis of the right elbow and in fact the Veteran was found to not have ankylosis of the right elbow at the December 2016 VA examination. Consequently, Code 5205 pertaining to ankylosis is not applicable. Moreover, Code 5208, which is based on limitation of flexion and extension, does not provide for a rating greater than 20 percent and is therefore not applicable. Further, the Board finds that Codes 5209 to 5212 are not relevant to the instant analysis because there has been no objective medical finding of impairment of the flail joint, ulna, or radius. Limitation of flexion of the forearm (elbow) is rated 20 percent when limited to 90 degrees, 30 percent when limited to 70 degrees, 40 percent disabling when limited to 55 degrees, and a maximum of 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5206. Limitation of extension of the forearm is rated 20 percent when limited to 75 degrees, 30 percent when limited to 90 degrees, 40 percent when limited to 100 degrees and 50 percent when limited to 110 degrees. Under Code 5213 for impairment of supination and pronation of the major extremity, a maximum 30 percent rating is warranted for limitation of pronation with motion lost beyond middle of arc. For loss of (bone fusion), a 30 percent rating is warranted when the hand fixed in full pronation, and a maximum 40 percent rating is warranted when the hand fixed in supination or hyperpronation. 38 C.F.R. § 4.71a, Code 5213. 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. 38C.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, 25Vet. 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 38C.F.R. §4.71a; 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 criteria."). For purposes of this decision, the normal motion of an elbow includes 0 degrees of extension, 145 degrees of flexion, 80 degrees of forearm pronation, and 85 degrees of forearm supination. 38 C.F.R. § 4.71, Plate I. The Veteran was found at a December 2016 VA examination to have flexion to 145 degrees, extension to 0 degrees, pronation to 70 degrees and supination to 60 degrees. Pain was noted with right forearm supination and pronation. In consideration of the finding of limited pronation to 70 degrees, the AOJ assessed the Veteran as satisfying the criteria for a 20 percent rating for limitation of pronation and motion lost beyond last quarter of arc, the hand does not approach full pronation for the major extremity. 38 C.F.R. § 4.71a, Code 5213. While this finding supports the current 20 percent rating, it does not satisfy the next higher rating of 30 percent since the hand is not lost beyond middle of arc. See 4.71a, Plate I. Moreover, the Veteran did not have a bone fusion and has not been found to have his hand in a fixed position, either in full pronation or supination or hyperpronation. In addition, the Veteran's demonstrated flexion to 145 degrees and extension to 0 degrees reflects normal range of motion. Id. Regarding consideration of a higher rating based on functional loss due to such factors as pain, weakness, fatigue and incoordination, the VA examiner in December 2016 reported that there was pain with supination and pronation. He did not note pain with flexion and extension. He also reported that the Veteran demonstrated muscle strength of 5/5 for right elbow flexion and extension which is normal. As for decreased range of motion due to pain on movement on supination and pronation, the examiner reported that that there was no additional functional loss or range of motion after three repetitions, and he was unable to say without resorting to speculation whether factors such as pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. In addition, he assessed the Veteran's right elbow disability as having a mild effect on employment due to decreased range of motion with chronic pain and difficulty doing repetitive tasks involving the right arm due to increased pain. In consideration of these findings, the Board finds that the Veteran's functional limitation due to pain does not rise to the level of limitation of motion sufficient to meet the requirements of the next higher disability under Code 5213 and/or separate compensable ratings under Codes 5206 or 5207. See Thompson, 815 F.3d at 785. Moreover, there is no medical evidence pertinent to the rating period that is contrary to the findings above. Notably, while findings from an earlier VA examination report in July 2013 (prior to the appeal period) show right elbow extension to 110 degrees which would warrant the maximum 50 percent rating for the major extremity under Code 5207, the VA examiner clarified in January 2014 that this was a typographical error and that the Veteran's extension ended at 0 degrees. The Veteran's belief that he is entitled to a higher rating for his right elbow disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report that were recorded following physical examination of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning an effective date before that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56. II. Earlier Effective Date for a 20 Percent Rating for Right Medial and Lateral Epicondylitis Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for increased ratings, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period. Id.; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. By way of background, the Veteran filed an initial claim for service connection for a right elbow disability in January 2013 which the AOJ granted in January 2014, assigning a 10 percent rating for right medial and lateral elbow epicondylitis effective July 1, 2013. The Veteran did not appeal this determination after receiving proper notice and it is final. 38 C.F.R. § 20.1103. On May 2, 2016, the Veteran filed a claim for a total disability based on individual unemployability due to service connected disability (TDIU) which the AOJ construed as a formal claim for an increased rating claim for his right elbow disability. There is no earlier evidence of record that he filed an increased rating claim during the period from January 2014 to May 2, 2016. Accordingly, May 2, 2016 is the proper date of claim. Regarding the date that entitlement arose, the Veteran was found to meet the criteria for a 20 percent rating under Code 5213 based on VA examination findings in December 2016. As noted, these findings show that the he had decreased pronation in the right upper extremity to 70 degrees and decreased supination to 80 degrees with pain. There is no evidence prior to this examination report that supports a 20 percent rating under VA's Rating Schedule. 38 C.F.R. § 4.71a, Code 5213. Thus, considering that the currently assigned effective date of claim of May 2, 2016, is earlier than the date that entitlement arose in December 2016, there is simply no basis to award the Veteran a date any earlier than the date of claim. 38 C.F.R. § 3.400(o). For these reasons, the claim for an effective date earlier than May 2, 2016, is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND The record shows that the Veteran failed to report to VA psychiatric examinations scheduled in May 2016 and May 2018. In regard to the May 2018 examination, the evidence shows that the Veteran reported to the examination and began filling out the paperwork, but that due to the stress of the long drive to the examination and his heightened anxiety he left before being examined. His representative contends that the present evidence is sufficient to grant the claim and that another examination is not required. While the present evidence, including disability records for the Social Security Administration and treatment records, reflect diagnoses of PTSD and relate the diagnosis to the Veteran's "military service", no attempt has been made to verify his military stressors. In this regard, the Veteran asserted at a December 2016 private psychological assessment that his stressors include an attempted abduction by terrorists while he was serving in Iraq which he did not report. He also asserted that his base was subjected to mortar attacks and that he saw body parts and carnage in a bombed vehicle. He further asserted stress from feeling alienated by his peers. Regarding the mortar attacks, the Veteran should be asked to submit additional detail regarding the date and place of these attacks and the unit he was assigned to at the time so that VA can make attempt(s) to corroborate this stressor. In addition, the Board agrees with the Veteran's representative that the Veteran's service personnel file, to include his DA-20, should be obtained and associated with his claims file. Also, since the Veteran's reported stressor of feeling alienated by others is not related to combat and does not involve fear of hostile military or terrorist activity, he should be advised that there must be credible supporting evidence that the stressor actually occurred and be given the opportunity to provide such evidence. 38 C.F.R. § 3.304(f). Although the Veteran did not report the stressor regarding the attempted abduction in service, he should be given the opportunity to present corroborating evidence such as letter he may have written to a family member telling them about the incident or statement from someone he told of the incident. Moreover, since this stressor is related to fear of hostile military or terrorist activity, an opinion is required by a VA psychiatrist or psychologist or one with whom VA contracts with, confirming that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors. 38 C.F.R. § 3.304(f)(3). In addition, a PTSD diagnosis for VA compensation benefits purposes must conform to the DSM V criteria and there is presently no indication of this in the record. 38 C.F.R. § 3.304(f). For these reasons, the Veteran must be afforded a new examination. As noted, the Veteran failed to report to two prior scheduled PTSD examinations. However, it appears from his representative that the reason he was unable to go through with the last scheduled exam is because of the anxiety he had related to the length of the drive to the examination and his unfamiliarity with the area. Accordingly, the AOJ should schedule the Veteran for a psychiatric exam at a medical facility closer to his residence, if possible. As a decision with respect to the Veteran's February 2016 claim for service connection for PTSD may affect the Veteran's claims for an effective date earlier than August 2, 2016 for TDIU and DEA benefits, the Board finds that the claims for TDIU and DEA are inextricably intertwined with the PTSD claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the TDIU and DEA claims are deferred pending resolution of the PTSD claim. The matters are REMANDED for the following action: 1. The AOJ should obtain the Veteran's service personnel file, to include his DA-20, and associate these records with his claims file 2. Request that the Veteran provide any further details that are not currently of record concerning the alleged in-service stressors. The Veteran should be asked to identify the names of people who were involved in the incidents, the place where the incidents occurred, his assigned unit, and more specific dates or time frames for the incidents if possible. 3. The AOJ should review any response from the Veteran regarding the PTSD claim and prepare a complete summary of all claimed stressors based upon review of all pertinent evidence. The AOJ should make attempts to verify the stressors by contacting the appropriate sources. If the stressors cannot be verified, the AOJ should prepare a formal finding stating why verification could not be completed, and listing the steps taken in the attempt to verify the stressors. 4. After completion of the above development, schedule the Veteran for a VA psychiatric examination at a facility closest to his residence. The examiner should review the claims file and address the following: a) Identify all psychiatric disorders present, to include whether the Veteran has PTSD and/or depressive disorder. b) Regarding PTSD, the examiner must explain how the diagnostic criteria of the DSM-5 are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of the previous diagnoses of PTSD of record. c) For each psychiatric diagnosis provided other than PTSD, to specifically include depressive disorder, the examiner should opine as to whether it is at least as likely as not related to service or any incident in service. If a diagnosis of depressive disorder is not deemed appropriate, the examiner must specifically explain this finding in consideration of the previous diagnoses of record. d) The examiner should also opine whether it is at least as likely as not that the Veteran's diagnosed psychiatric disability(ies), to include PTSD and/or depressive disorder, are proximately due to or the result of a service-connected disability. (Continued on the next page) 5. Then, readjudicate the claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.