Citation Nr: 1242243	
Decision Date: 12/11/12    Archive Date: 12/20/12

DOCKET NO.  10-05 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial rating higher than 10 percent for degenerative arthritis of the right elbow.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Grabia, Counsel









INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1994 to March 1997. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran has raised the claims of service connection for right ulnar neuropathy, carpal tunnel syndrome, and surgical scars due to the service-connected right elbow disability, which are referred to the RO for appropriate action.


FINDINGS OF FACT

1.  Before March 27, 2012, degenerative arthritis of the right elbow was manifested by X-ray evidence of degenerative arthritis and satisfactory evidence of painful motion with noncompensable limitation of flexion, extension, pronation, and supination. 

2.  From March 27, 2012, degenerative arthritis of the right elbow has been manifested by limitation of pronation with motion lost beyond the last quarter of the arc and the hand does not approach full pronation and limitation of supination to 30 degrees or less.   








CONCLUSION OF LAW

Before March 27, 2012, the criteria for an initial rating higher than 10 for degenerative arthritis of the right elbow under Diagnostic Code 5010 on the basis of limitation of motion were not met; from March 27, 2012, the criteria for a separate rating of 20 rating for degenerative arthritis of the right elbow on the basis of limitation of pronation have been met; from March 27, 2012, the criteria for a separate rating of 10 rating for degenerative arthritis of the right elbow on the basis of limitation of supination have been met, which is in lieu of the 10 percent rating under Diagnostic Code 5010.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5206, 5207, 5213 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

On initial rating claims, under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 







Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19  Vet. App. 473, 484-86 (2006). 

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).  

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre-adjudication VCAA notice by letter, dated in March 2009, on the underlying claim of service connection.  Where, as here, the claim has been granted and the initial rating assigned, the claim has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose of the notice has been fulfilled.  

Once a claim has been substantiated, the filing of a notice of disagreement with the RO's decision as to the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Dingess, at 19 Vet. App. 473.  







Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records, VA records, and private medical records.  The file also contains medical literature and treatises submitted in support of the Veteran's claim.

The Veteran was afforded VA examinations in August 2009, in March 2011, and in March 2012.  As the reports of the VA examinations include a review of the medical history and describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, the VA examinations are adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim are required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Rating Principles

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.



VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

Rating Criteria for the Elbow

Degenerative arthritis of the right elbow is currently rated 10 percent under Diagnostic Codes 5010 and 5206. 

Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under the Diagnostic Code 5003. 

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved.  When however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 rating is assigned for a major joint affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 




For rating limitation of motion of the elbow, the applicable Diagnostic Codes are Diagnostic Codes 5206, 5207, and 5213. 

Under Diagnostic Code 5206, limitation of flexion of the forearm to 100 degrees is 10 percent disabling.  Limitation of flexion of the forearm to 90 degrees is 20 percent disabling. 

Under Diagnostic Code 5207, limitation of extension of the forearm to 45 degrees is 10 percent disabling.  Extension limited to 75 degrees is 20 percent disabling. 

Under Diagnostic Code 5213, for impairment of supination or pronation, limitation of supination to 30 degrees or less warrants a 10 percent rating and limitation of pronation with motion lost beyond the last quarter arch where the hand does not approach full pronation warrants a 20 percent rating.

The normal range of motion for the elbow is flexion to 145 degrees and extension to zero degrees.  Normal pronation is from zero to 80 degrees and normal supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. 

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 






With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07.

Also with arthritis or periarticular pathology, painful motion is a factor to be considered.  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. 

Facts

On VA examination in August 2009, the Veteran complained of right elbow pain, stiffness, crepitus, swelling, and tenderness.    

On physical examination, the VA examiner noted that the Veteran was right handed.  Range of motion of the right elbow was flexion from 13 to 130 degrees and extension from 130 to 13 degrees with pain at the end points.  

There was no change with repetitive movement.  There was no right elbow deformity, weakness, locking, incoordination, giving way, instability, subluxation, or dislocation.   X-rays showed degenerative changes in the joint.  

On VA examination in March 2011, range of motion of the right elbow was flexion from 15 to 130 degrees and extension from 15 to 130 degrees.  Pronation was from 0 to 80 degrees and supination from 0 to 85 degrees.  






On VA examination on March 27, 2012, the Veteran complained of right elbow swelling and increased pain every 2 months.  On physical examination, range of motion of the right elbow was flexion to 120 degrees with pain and extension to 0 degrees with no objective evidence of pain.  There was no change with repetitive movement and no functional loss or impairment.  There was no ankylosis, flail joint, or evidence of joint fracture.  Supination was limited to 30 degrees or less and pronation was limited with motion lost beyond the last quarter of the arc and the hand does not approach full pronation.  

The Veteran stated that he missed work and he difficulty performing some of his duties as a fireman that require the use of right hand such as lifting and handling hose nozzle.  

VA records through August 2012 show ongoing treatment for degenerative arthritis of the right elbow and no greater degree of disability than shown on VA examination in March 27, 2012. 

Analysis

Before March 27, 2012, right elbow flexion was from 13 to 130 degrees and from 15 to 130 degrees on VA examinations.  Under Diagnostic Code 5206, the criterion for a 10 percent rating is flexion limited to 100 degrees.  As flexion to 130 degrees does not more nearly approximate or equate to flexion limited to 100 degrees, considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, the criterion for a 10 percent rating for limitation of flexion under Diagnostic Code 5206 were not been met. 

Before March 27, 2012, right elbow extension was from 130 to 13 degrees and from 15 to 130 degrees with pain at the end points.  Under Diagnostic Code 5207, the criterion for a 10 percent rating is extension limited to 45 degrees.  





As extension to either 13 or to 15 degrees does not more nearly approximate or equate to extension limited to 45 degrees, considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, the criterion for a rating for a 10 percent rating for limitation of extension under Diagnostic Code 5207 were not met. 

Before March 27, 2012, right elbow pronation was from 0 to 80 degrees and supination from 0 to 85 degrees.  Under Diagnostic Code 5213, the criteria for a compensable rating, 20 percent, are pronation with motion lost beyond the last quarter of the arc and the hand does not approach full pronation.  Pronation to 80 degrees is normal, which does not more nearly approximate or equate to pronation with motion lost beyond the last quarter of the arc and the hand does not approach full pronation, considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, and the criteria for a compensable rating for limitation of pronation under Diagnostic Code 5213 were not met.

Before March 27, 2012, right elbow supination was from 0 to 85 degrees.  Under Diagnostic Code 5213, the criterion for a compensable rating, 10 percent, is supination limited to 30 degrees or less.  

Supination to 85 degrees is normal, which does not more nearly approximate or equate to supination to 30 degrees or less considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, and the criterion for a compensable rating for limitation of supination under Diagnostic Code 5213 were not met. 

Although the Veteran asserted that some of the findings on the VA examination in March 2011 were inaccurate, he did not identify the findings for flexion, extension, pronation, or supination as inaccurate.  







On VA examination on March 27, 2012, right elbow flexion was to 120 degrees. 
As flexion to 120 degrees does not more nearly approximate or equate to flexion limited to 100 degrees, considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, the criterion for a 10 percent rating for limitation of flexion under Diagnostic Code 5206 were not been met.

On VA examination on March 27, 2012, right elbow extension was to 0 degrees or the neutral.  As extension to the neutral position does not more nearly approximate or equate to extension limited to 45 degrees, considering 38 C.F.R. §§ 4.40 , 4.45, and DeLuca, the criterion for a 10 percent rating for limitation of extension under Diagnostic Code 5207 are not been met.

On VA examination on March 27, 2012, supination was limited to 30 degrees or less, which meets the criterion for a 10 percent rating under Diagnostic Code 5213.  There is no higher rating for limitation of supination under Diagnostic Code 5213.  

Before March 27, 2012, the right elbow was rated 10 percent under Diagnostic Codes 5010 and 52006 as limitation of motion of the elbow was noncompensable under Diagnostic Codes 5206, 5207, and 5213 as already explained.  The assigned 10 percent rating was the minimum compensable rating for an elbow disability.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 requires the minimum rating for the joint). 

From March 27, 2012, the 10 rating for limitation of supination under Diagnostic Code 5213 is in lieu of the rating under Diagnostic Codes 5010 and 5206 as a rating under both Diagnostic Codes 5010 and 5213 is not permissible and would violate the rule against pyramiding under 38 C.F.R. § 4.14. 

On VA examination on March 27, 2012, pronation was limited with motion lost beyond the last quarter of the arc and the hand did not approach full pronation.  


Under Diagnostic Code 5213 a rating of 20 percent is warranted for limitation of pronation from March 27, 2012. As pronation was not lost beyond the middle of the arc, the criterion for the next higher rating had not been met. 

For the above reasons, the Board has assigned staged ratings as described.  And preponderance of the evidence is against any higher ratings during this period of the appeal. 

Extraschedular Consideration

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 













Here, the rating criteria under Diagnostic Codes 5010, 5003, 5206, 5207, and 5213 reasonably describe the disability levels and the Veteran's symptomatology, including pain and limitation of motion.  In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.  
Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b) (1). 


Total Disability Rating for Compensation based on Individual Unemployability

The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record as of the last VA examination the Veteran was employed.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).



      (The Order follows on the next page.).












ORDER

Before March 27, 2012, an initial rating higher than 10 for degenerative arthritis of the right elbow under Diagnostic Codes 5010 and 5206 is denied.  

From March 27, 2012, a separate rating of 20 percent for degenerative arthritis of the right elbow with limited pronation under Diagnostic Code 5213 is granted, subject to the law and regulations, governing the award of monetary benefits. 

From March 27, 2012, a separate rating of 10 percent for degenerative arthritis of the right elbow with limited supination under Diagnostic Code 5213 is granted, subject to the law and regulations, governing the award of monetary benefits.  

The 10 percent rating under Diagnostic Coder 5213 is in lieu of the 10 percent rating under Diagnostic Codes 5010 and 5206. 



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs