Citation Nr: 22014641 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-53 098A DATE: March 14, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for a left elbow disability for the period prior to December 27, 2021, is denied. Entitlement to a 20 percent disability rating for a left elbow disability for the period beginning on December 27, 2021, is granted. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. Prior to December 27, 2021, the Veteran's left elbow has manifested with pain, aches, and throbbing, but not flexion limited to 90 degrees, or extension limited to 45 degrees, supination limited to 30 degrees or less, compensable limitation of supination, impairment of the flail joint, ulna or radius, or ankylosis or its equivalent. 3. For the period beginning on December 27, 2021, the Veteran's left elbow has not demonstrated flexion limited to 90 degrees, or extension limited to 45 degrees, supination limited to 30 degrees or less, compensable limitation of supination, impairment of the flail joint, ulna or radius, or ankylosis or its equivalent; however, he has reported functional loss, including difficulty driving, dressing, sleeping, and doing chores around the house during flare-ups and with repetitive use. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the period prior to December 27, 2021 for a left elbow disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. 2. The criteria for a 20 percent rating for the period beginning on December 27, 2021, for a left elbow disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from February 1970 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for left elbow olecranon bursitis and assigned a 10 percent rating, effective September 28, 2008. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2021. A transcript of that proceeding is associated with the claims file. In November 2021, the Board remanded the matter for further development. Specifically, the Board requested that the RO obtain any outstanding VA treatment records and to schedule the Veteran for a VA examination to determine the current severity of his left elbow disability. In accordance with the Remand directives, the Veteran was afforded an Elbow and Forearm Disability Benefits Questionnaire (DBQ) in December 2021. The Board finds that the examination is adequate. Thus, as there has been substantial compliance with the Board's November 2021 Remand directives, further remand is not required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran seeks a higher initial rating for his service-connected left elbow disability. The applicable rating period is from September 28, 2008, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the 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. The Veteran's left elbow disability is currently rated as 10 percent disabling on the basis of limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5206. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, the use of Diagnostic Code 5003-5206 reflects that the Veteran's service-connected left elbow disability has been rated under Diagnostic Code 5003 for arthritis with reference to Diagnostic Code 5206, for limitation of flexion of the forearm. See 38 C.F.R. § 4.20. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45. Diagnostic Codes 5206 provides a different rating depending on whether the affected arm is the major or minor arm. In this case, the record indicates that the Veteran is right-hand dominant. Therefore, the Board will rate the Veteran's left elbow disability as affecting the minor arm. Under Diagnostic Code 5206, limitation of flexion of the minor arm to 110 degrees warrants a noncompensable rating. Limitation to 100 degrees warrants a 10 percent rating. Limitation to 90 degrees warrants a 20 percent rating. Limitation to 70 degrees also warrants a 20 percent rating. Limitation to 55 degrees warrants a 30 percent rating. Limitation to 45 degrees warrants a 40 percent rating. 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; 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In a November 2009 joints examination, the Veteran did not have complaints regarding the left elbow. He claimed that he could fully extend and flex the elbow. Upon examination, there was no evidence of deformity of the left elbow. Elbow flexion was full, from 0 to 145 degrees, with full extension to 0 degrees. The Veteran was able to pronate and supine from 0 to 80 degrees and 0 to 85 degrees. After three repetitions, there was no reduction of joint excursion, weakness, pain, fatigability, or loss of coordination. There were no disabling features or significant limitation or functional impairment noted. In a January 2009 VA Form 9, the Veteran stated that he suffers from daily elbow pain, limited motion, limited flexibility, and weakness at the elbow joint. He also expressed disagreement with the November 2009 examination, noting that while he was able to bend his elbow, he did so slowly and closely to his body due to the pain. In a June 2009 private treatment record, Dr. J.J. stated that an olecranon spur was palpated in the left elbow. Dr. J.J. also reported that the Veteran's left elbow revealed 0 to 130 degrees of flexion with full supination and pronation. In a February 2010 private treatment record, Dr. J.J. again noted that the Veteran's left elbow showed 0 to 130 degrees of flexion with full supination nad proration noted. Impressions revealed an olecranon spur and mild degenerative joint disease was seen at the ulnohumeral articulation. In a February 2016 Elbow and Forearm Conditions DBQ, the examiner noted a diagnosis of left olecranon bursitis. The examiner noted that the Veteran was right-hand dominant. The Veteran did not report flare-ups of the elbow or forearm. Range of motion testing revealed left elbow flexion to 145 degrees, extension to 0 degrees, forearm supination to 85 degrees, and forearm pronation to 80 degrees. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, without additional functional loss or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time, but it did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal, and there was no reduction in muscle strength. The Veteran did not have muscle atrophy. The Veteran did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to any conditions. The Veteran did not use any assistive devices. Imaging studies were performed, but there was no degenerative or traumatic arthritis documented. Other significant diagnostic test findings or results included an olecranon spur. The Veteran's condition did not impact his or her ability to perform any type of occupational task. In May 2016, the Veteran expressed disagreement with the 10 percent evaluation assigned for his left elbow. He stated that he now has arthritis in the elbow and that his pain increased since his last examination. The Veteran also stated that he drives a truck for a living and that he experiences severe pain in his left hand, which requires him to put his arm in his lap. During the October 2021 virtual hearing, the Veteran testified that he lost some range of motion in his left elbow. He also testified that he lost a little strength, noting that his left hand "is freezing all the time" from his elbow. He reported that his left elbow was worse than what is contemplated by the current rating assigned. Specifically, he stated that he cannot drive long distances without laying his arm on the armrest and that any kind of pressure on the joint causes him pain. The Veteran underwent an Elbow and Forearm Conditions DBQ in December 2021, at which time the examiner noted diagnoses of left elbow olecranon bursitis and left olecranon spur. At the examination, the Veteran reported that his left hand always feels cold to freezing. He also noted that he experiences constant aching and throbbing in his left forearm and elbow. He also reported that sometimes he has to use his right hand to hold his left hand to pick up a coffee cup due to the pain. The Veteran stated that he discontinued use of over-the-counter medication and opiates. He denied a history of physical or occupational therapy and stated that ice and heat were ineffective for pain relief. The Veteran reported nighttime flare-ups of the left elbow or forearm that disrupted his sleep. He stated when they arise, he has to change his sleeping position. He stated that such flare-ups happen on a nightly basis; last all night; and are characterized by severe aching, throbbing, and coldness in the left hand. Precipitating factors included using his left arm during the day, as well as activities of daily living and occasional driving. Alleviating factors included changing position. The Veteran also reported having functional loss or functional impairment due to his left arm disability. In this regard, the Veteran stated that he cannot start his lawn mower or edger, and that painful motion interferes with dressing and doing things around the house. The Veteran also complained of painful motion on flexion and/or extension, related to the Veteran's left elbow disability, which included tightness on flexion and light pain on extension. The Veteran additionally complained of pain with pronation and tightness with supination. Active range of motion testing of the left elbow showed flexion to 120 degrees; extension to 20 degrees; forearm supination to 85 degrees; and forearm pronation to 80 degrees. The Veteran exhibited pain in all planes. Passive range of motion testing of the left elbow showed flexion to 140 degrees; extension to 30 degrees; forearm supination to 85 degrees; and forearm pronation to 80 degrees. The Veteran again exhibited pain in all planes. There was also evidence of pain on active motion, passive movement, on rest/non-movement, and it caused functional loss causing the Veteran to stop action due to pain. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions. Movements caused pain in which the Veteran observably breathed fast and winced. The Veteran did not repeat testing on active or passive range of motion due to pain. The Veteran was not examined immediately after repetitive use over time. There was procured evidence which suggested that pain significantly limited functional ability with repeated use over time. After repeated use testing, range of motion was estimated to include flexion to 100 degrees; extension to 35 degrees; forearm supination to 75 degrees; and forearm pronation to 70 degrees. The examination was not being conducted during a flare-up. There was procured evidence which suggested pain significantly limited functional ability with flare-ups. Range of motion testing during flare-ups was estimated to include flexion to 110 degrees; extension to 30 degrees; forearm supination to 70 degrees; and forearm pronation to 70 degrees. The examiner acknowledged the Veteran's reports that his hands were cold all of the time, but labs were unable to draw blood from his left arm as his veins rolled excessively and his veins were hard to find. The examiner also noted that the Veteran was undergoing IV chemotherapy cancer treatment. There were no other significant diagnostic test findings or results related to the claimed diagnosis. The examiner also noted that the Veteran's elbow disability impacted his ability to perform any type of occupational task. Specifically, the examiner noted that the Veteran was a truck driver and that he lost two to four weeks of time in the last twelve months. The examiner also noted that ever since his accident, he has had to steer his truck with his left hand and use his right hand for gear shifting, though his left elbow becomes too painful to drive. The examiner also noted that the Veteran was able to compensate for a number of years before pain became too severe. The Board finds that the most persuasive evidence of record is against an initial rating higher than the 10 percent previously awarded for the period prior to December 27, 2021. The evidence for this period does not demonstrate compensable limitation of flexion, extension, supination or pronation, nor is there any evidence of ankylosis or its equivalent. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5206, 5207, 5208, 5209, 5210, 5211, 5212, and 5213. Further, as to funcitonal loss, during this period the Veteran primarily complained of painful motion, and this is adequately compensated in the 10 percent rating assigned. For the period beginning on December 27, 2021, the Veteran still does not meet the criteria for a compensable rating for flexion, extension, supination or pronation, nor is there any evidence of ankylosis or its equivalent, a flail joint impairment or impairment of the ulna or radius. However, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakened movement in his left elbow causing difficulty sleeping, having to use his right hand to support his left hand, and functional loss in the inability to hold the steering wheel or start certain hand tools. While the functional loss was not determined manifest in compensable limitation of flexion, extension, pronation or supination, the Board finds that the severity of the symptoms during flare-ups and on repetitive use warrant additional compensation for this period. Accordingly, a 20 percent rating, but no higher, is assigned effective December 27, 2021, based on functional loss. Additional compensation based on the Veteran's reports of neurological symptoms is not warranted, as the Board notes that there were no documented findings of neurological impairment. Neither the Veteran nor his representative has raised any other issues with regard to the initial rating for the service-connected left elbow disability, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In view of the foregoing, the Board finds that the evidence is against an initial rating greater than 10 percent for the Veteran's service-connected left elbow disability for the period prior to December 27, 2021, but that the evidence supports a 20 percent rating for the left elbow beginning on that date. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.