Citation Nr: 22018301 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-42 825 DATE: March 28, 2022 ORDER For the entire increased rating period on appeal from April 19, 2012, an increased disability rating in excess of 10 percent for residuals of a right elbow fracture (right elbow disability) is denied. REMANDED Entitlement to service connection for a skin disorder, to include as due to hazardous environmental exposure during the Persian Gulf War, is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the entire increased rating period on appeal from April 19, 2012, the service-connected right elbow disability, which is the dominant extremity, manifested as limitation of flexion to 110 degrees when accounting for limitations due to pain, to include painful flare-ups; it did not manifest as limitation of extension, ankylosis, impairment of the flail joint, non-union of the radius and ulna with false flail joint, non-union or malunion of the ulna, impairment of the radius, limitation of pronation, or supination limited to 30 degrees or less. CONCLUSION OF LAW For the entire increased rating period on appeal from April 19, 2012, the criteria for an increased disability rating in excess of 10 percent for the service-connected right elbow disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.123, 4.71a, Diagnostic Codes 5205-5213. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 2000 to July 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in September 2021, where the service connection and rating issues on appeal were remanded for additional development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the instant decision must once again remand the service connection issues on appeal, the Board need not further discuss remand compliance as to those issues. Concerning the right elbow rating issue, the record reflects that the directed development was adequately completed on remand. As such, the right elbow rating issue is ripe for adjudication. In the August 2012 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) denied an increased (compensable) disability rating for the service-connected right elbow disability. While on remand, in a December 2021 rating decision, the AOJ granted an increased disability rating of 10 percent for the right elbow from April 19, 2012, the date of claim for increased rating; however, the AOJ purported to grant the increase based upon a finding of "clear and unmistakable error" in the August 2012 rating decision. As the August 2012 rating decision had not become final, and is the rating decision currently on appeal, the Board finds that there was no need for the AOJ to apply the clear and unmistakable evidence standard, which has a much higher evidentiary burden and only applies to final decisions. See 38 C.F.R. § 3.105. As such, the actual issue on appeal is entitlement to an increased disability rating in excess of 10 percent for the service-connected right elbow disability, which is a more favorable legal standard for the Veteran. For this reason, the Board will make no further reference to the question of whether there was clear and unmistakable error in the August 2012 RO rating decision as to the question of the right elbow rating. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the service connection and TDIU issues, no further discussion of the duties to notify and assist is necessary as to those issues. As to the right elbow rating issue, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained adequate VA elbow examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. An Increased Disability Rating for Right Elbow Disability is Denied Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Under Diagnostic Code 5206, limitation of flexion of the major forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of the major forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major forearm to 70 degrees warrants a 30 percent rating; limitation of flexion of the major forearm to 55 degrees warrants a 40 percent rating; and limitation of flexion of the major forearm to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5206. The standard range of motion for the elbow is flexion from 0 to 145 degrees, forearm pronation from 0 to 80 degrees, and forearm supination from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I. Per Diagnostic Code 5207, limitation of extension of the major forearm to 45 degrees warrants a 10 percent rating; limitation of extension of the major forearm to 60 degrees warrants a 10 percent rating; limitation of extension of the major forearm to 75 degrees warrants a 20 percent rating; limitation of extension of the major forearm to 90 degrees warrants a 30 percent rating; limitation of extension of the major forearm to 100 degrees warrants a 40 percent rating; limitation of extension of the major forearm to 110 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5205, ankylosis of the elbow, favorable ankylosis of the major elbow at an angle between 90 degrees and 70 degrees warrants a 40 percent rating. Intermediate ankylosis of the major elbow at an angle ot more than 90 degrees or between 70 degrees and 50 degrees warrants a 50 percent rating. Unfavorable ankylosis of the major elbow at an angle of less than 50 degrees or with complete loss of supination and pronation warrants a 60 percent rating. Id. Under Diagnostic Code 5208, when flexion of the major elbow is limited to 100 degrees and extension is limited to 45 degrees, a 20 percent rating is warranted. Id. Under Diagnostic Code 5209, joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius warrants a 20 percent rating. Other impairment of the major elbow, flail joint, warrants a 60 percent rating. Id. Under Diagnostic Code 5210, nonunion of the major radius and ulna with a flail false joint warrants a 50 percent rating. Id. Under Diagnostic Code 5211, impairment of the ulna, nonunion of the ulna in the upper half, with false movement, with malunion of the major ulna with bad alignment warrants a 10 percent rating. Nonunion of the major ulna in lower half warrants a 20 percent rating. Impairment of the major ulna without loss of bone substance or deformity warrants a 30 percent rating. Impairment of the major ulna with loss of bone substance (1 inch (2.5 centimeters) or more) and marked deformity warrants a 40 percent rating. Id. Under Diagnostic Code 5212, impairment of the radius, nonunion of the radius in the lower half, with false movement, with malunion of the major radius with bad alignment warrants a 10 percent rating. Nonunion in the upper half of the major radius warrants a 20 percent rating. Impairment without loss of bone substance or deformity warrants a 30 percent rating. Impairment of the major radius with loss of bone substance (1 inch (2.5 centimeters) or more) and marked deformity warrants a 40 percent rating. Id. Under Diagnostic Code 5213, impairment of supination and pronation, with limitation of supination of the major joint to 30 degrees or less warrants a 10 percent rating. Motion of the major joint lost beyond last quarter of arc, where the hand does not approach full pronation warrants a 20 percent rating. Motion lost beyond the middle of arc for limitation of pronation warrants a 30 percent rating. The hand fixed near the middle of the arc or moderate pronation warrants a 20 percent rating. The hand fixed in full pronation warrants a 30 percent rating. The hand fixed in supination or hyperpronation warrants a 40 percent rating. Id. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The Board has considered whether these changes could result in an increased disability rating from the effective date of the regulation changes; however, the Board does not find the February 7, 2021, amendments to be relevant to the instant decision. Specifically, the February 2021 amendments did not change Diagnostic Codes 5205 through 5213, which are the codes at issue in the instant decision. 38 C.F.R. § 4.71a (2021). The Veteran seeks an increased disability rating in excess of 10 percent for the service-connected right elbow disability. Per the report from an October 2021 VA elbow examination, the right arm is the major extremity. The right elbow is currently rated as 10 percent disabling under Diagnostic Code 5206 for painful limitation of flexion. As discussed in the introduction, in a December 2021 rating decision, the AOJ granted an increased disability rating of 10 percent, effective April 19, 2012, the date of claim for increase. The Board has considered whether the increased 10 percent disability rating was warranted at any point during the one-year lookback period from April 19, 2011 to April 19, 2012; however, nothing in the evidence of record supports that the Veteran first became entitled to an increased disability rating during the period from April 19, 2011 to April 19, 2012. As such, in the instant decision the Board need only consider whether an increased disability rating in excess of 10 percent is warranted from April 19, 2011, the date of claim for an increased disability rating. The Veteran received a VA elbow examination in August 2012. Per the examination report, the Veteran reported that he had experienced flare-ups of pain. Initial range of motion testing showed full range of motion in both flexion and extension. Following repetitive use testing, there was still full extension, with flexion reduced to 140 degrees. Upon examination there was no ankylosis, impairment of flail joint, non-union of the radius and ulna with false flail joint, non-union or malunion of the ulna, impairment of the radius, or impairment of supination or pronation. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. A new VA elbow examination was performed in October 2021. This examination was performed during a painful flare-up in the right elbow, so captured the additional limitations and functional impairments during flareups. Range of motion testing during this flare-up of pain showed flexion limited to 110 degrees. Extension was recorded as being limited to 100 degrees; however, this was a typographical error. In a subsequent December 2021 addendum opinion, the VA examiner explained that the October 2021 VA examination report should have recorded full extension at 0 degrees, and that the 100 degree notation was incorrect. The Board finds full extension to be consistent with the other evidence of record. Range of motion testing at the time of the October 2021 VA elbow examination also showed full pronation, but a 15-degree loss of supination to 70 degrees. Upon examination in October 2021, there was no ankylosis, impairment of flail joint, non-union of the radius and ulna with false flail joint, non-union or malunion of the ulna, or impairment of the radius. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. After a review of all the evidence, lay and medical, the Board finds that, during the entire increased rating period on appeal, from April 19, 2012, the service connected right elbow disability, which is the dominant extremity, manifested as limitation of flexion to 110 degrees when accounting for limitations due to pain, to include painful flare-ups. The lay and medical evidence of record does not reflect any right elbow limitation of motion or other symptoms beyond those discussed above. The right elbow disability did not manifest as limitation of extension, ankylosis, impairment of the flail joint, non-union of the radius and ulna with false flail joint, non-union or malunion of the ulna, impairment of the radius, limitation of pronation, or supination limited to 30 degrees or less. As discussed above, a disability rating in excess of 10 percent would only be warranted if flexion was limited to 90 degrees or less; therefore, an increased rating is not warranted under Diagnostic Code 5206. As there was no limitation of extension, even during a flare-up of pain, an increased or separate compensable rating is not warranted under Diagnostic Code 5207 or 5208. Absent impairment of the flail joint, non-union of the radius and ulna with false flail joint, non-union or malunion of the ulna, impairment of the radius, increased or separate compensable ratings are also not warranted under Diagnostic Codes 5209 through 5212. While there was some limitation of supination, as it was not limited to 30 degrees or less, and as there was no limitation of pronation, an increased or separate compensable rating under Diagnostic Code 5213 is also not warranted. For these reasons, the Board finds the evidence is persuasively against an increased disability rating in excess of 10 percent for the service connected right elbow disability from April 19, 2012, and an increased disability rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5205-13. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. Service Connection for a Skin Disorder is Remanded 3. Service Connection for a Bilateral Knee Disorder is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In its September 2021 decision, the Board remanded the issue of service connection for a skin disorder to schedule a VA skin examination. The VA examiner was to opine as to whether any currently diagnosed skin disorder was related to either the in-service skin treatment and/or hazardous environmental exposure while serving in Southwest Asia during the Persian Gulf War. The Veteran received a VA skin examination in October 2021. At that time, the VA examiner found no currently diagnosed skin disorder. Per a July 2020 VA podiatry consultation report, however, shows a diagnosis of bilateral hyperhidrosis (abnormally excessive sweating) of the feet. Hyperhidrosis has been recognized as a skin disorder by some medical professionals. As such, the Board finds warranted a remand for an addendum opinion on the question of whether the currently diagnosed hyperhidrosis of the feet is related to service. As to the question of service connection for a bilateral knee disorder, per the report from an October 2021 VA knee examination, the diagnosis was bilateral knee strain. Per the examination report, the Veteran reported that the knee pain began in service on or about 2003 and attributed the pain to wear and tear from carrying heavy equipment. The Board notes that, per the DD Form 214, the Veteran served as a rifleman and earned the Combat Action Ribbon based on his service in Iraq. Wear and tear on the knees from carrying heavy equipment is consistent with the Veteran's duties and combat experiences during service. In the October 2021 negative nexus opinion, the VA examiner did not specifically address whether the currently diagnosed bilateral knee disorder was related to the in-service wear and tear due to carrying heavy equipment in a combat zone. As such, the Board finds remand for an addendum opinion to be warranted. 4. TDIU is remanded. During the course of this appeal, VA received a February 2022 VA Form 21 8940, Veteran's Application for Increased Compensation Based on Unemployability. Per the Form 21-8940, the Veteran alleged being unemployable due to multiple service-connected disabilities, to include the right elbow. As such, the Board finds that the issue of entitlement to a TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to a TDIU has not previously been adjudicated by the AOJ, and as the record reflects that the AOJ is currently developing the issue, the Board remands the issue to the AOJ for initial adjudication. The aforementioned matters are REMANDED for the following action: 1. Return the October 2021 VA skin and knee examination and opinion reports to the VA examiner who rendered the opinions for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinions. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: Skin Disorder Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed hyperhidrosis of the feet is related to the in service skin treatment, was caused by hazardous environmental exposures while serving in Southwest Asia during the Persian Gulf War, or is otherwise etiologically related to active service? Bilateral Knee Disorder (Continued on the next page) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed bilateral knee strain is due to wear and tear caused by carrying heavy equipment during service while performing combat operations in Iraq? 2. After any additional notification and/or development deemed warranted, adjudicate the issue of entitlement to a TDIU, and readjudicate the other remanded issues. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.