BVA9503981 DOCKET NO. 93-10 753 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for traumatic arthritis of the left elbow. 2. Entitlement to an increased (compensable) rating for residuals, dislocation of the left elbow. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from August 1968 to October 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision of the Jackson Department of Veterans Affairs (VA) Regional Office (RO). An additional issue, entitlement to a compensable rating for hemorrhoidectomy, was denied by the October 1991 rating decision, and subsequently developed for appellate review. However, a 10 percent rating for this disability was granted by rating decision in September 1992 from the date of claim. The veteran was so informed by letter from the RO dated later in September 1992. He did not indicate his desire to continue the appeal with respect to this issue. CONTENTIONS OF APPELLANT ON APPEAL It is argued that the VA examiner who saw the veteran in April 1991 diagnosed traumatic arthritis of the left elbow. It is also argued that the noncompensable rating for the elbow disability fails to take into account all of the factors of disability set forth in 38 C.F.R. §§ 4.40, 4.45. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for traumatic arthritis of the left elbow; and that the preponderance of the evidence supports a 10 percent rating for residuals of the dislocation of the left elbow. FINDINGS OF FACT 1. Traumatic arthritis of the left elbow has not been medically established by X-ray findings. 2. Residuals of dislocation of the left elbow are manifested principally by crepitance, tenderness over the medial epicondyle and pain on resisted motion. 3. This case does not present an exceptional or unusual disability picture. CONCLUSION OF LAW 1. The veteran does not have traumatic arthritis of the left elbow which was incurred or aggravated in service or is proximately due to or the result of service connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.310 (1994). 2. The criteria for a 10 percent rating for residuals of left elbow dislocation are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, Part 4, Diagnostic Codes 5206, 5207 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION We consider that both claims are well grounded because they are both plausible. We also consider that all relevant evidence is associated with the claims file, and, therefore, VA has fulfilled its duty to assist the veteran in developing the relevant facts. 1. Service Connection for Traumatic Arthritis of the Left Elbow VA shall grant service connection for disability resulting from personal injury suffered or disease contracted in active service, 38 U.S.C.A. §§ 1110,1131, or for disability proximately due to or the result of service connected disability, 38 C.F.R. § 3.310 (a). According to 38 C.F.R. § 4.71a, only traumatic arthritis which is established by X-ray findings will be rated under the applicable criteria. In this case, there are no X-ray findings of arthritis of the left elbow during or subsequent to service. In this regard, we note the diagnostic impression of traumatic arthritis of the elbow recorded on VA examination in April 1991. However, review of the reports of X-ray examination on this occasion, and on VA examination in July 1992, shows that there were no radiographic abnormalities. We conclude that the veteran does not have traumatic arthritis of the left elbow established by X-ray findings, and, accordingly, the claim for service connection must be denied. 2. Increased (Compensable) Rating for Residuals of Dislocation of the Left Elbow, Minor Extremity Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Where flexion of the forearm is limited to 110 degrees, a noncompensable rating is warranted; where flexion is limited to 100 degrees, a 10 percent rating is warranted; where flexion is limited to 90 degrees, a 20 percent rating is warranted. Diagnostic Code 5206. Where extension of the forearm is limited to 45 and to 60 degrees, a 10 percent rating is warranted; where extension is limited to 75 degrees, a 20 percent rating is warranted. Diagnostic Code 5207. 38 C.F.R. § 4.40 states, in part, that 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. 38 C.F.R. § 4.45 states, in part, with respect to the joints, that considerations will include less or more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. In this case, the evidence shows that the veteran dislocated the left elbow in 1971 when he slipped and fell. On the initial VA examination in 1976, his symptoms were described as mild and without interference with function. There was a prominent, but nontender, deformity of the lateral humeral condyle, A noncompensable rating has been in effect since 1975. VA outpatient treatment records in 1990 show that the veteran complained of left elbow pain. Findings were of tenderness over the medial malleolus of the elbow. On VA orthopedic examination in April 1991, he complained of recurrent elbow pain with episodes of swelling aggravated primarily by increased use of the left upper extremity. He worked in construction. Examination of the left elbow showed 5 degrees of hyperextension and 145 degrees of flexion. There was crepitance on range of motion. There was a prominence on the medial aspect of the elbow with tenderness to palpation over the area of the medial epicondyle. There was no instability. He was able to make a good fist with the left hand. He could oppose the thumb and remaining fingers satisfactorily. The impression was residuals of dislocation with traumatic arthritis. In a November 1991 statement from the veteran, he reported that he experienced pain and suffering with respect to the elbow after working each day as a carpenter. On VA orthopedic examination in July 1992, the veteran reported that he worked in a lumbar yard and had increased discomfort in the elbow whenever he did hard labor. He pointed to the lateral epicondyle as the location of the pain. Examination showed 0 to 145 degrees range of motion of the elbow without any redness, heat or swelling. There was tenderness to palpation over the area of the lateral epicondyle. There was increased pain over the lateral epicondyle region when dorsiflexion of the left wrist was resisted. X-rays of the elbow were negative. The impression was history of left elbow dislocation-lateral epicondylitis (tennis elbow). The medical evidence clearly shows that the elbow has become increasingly symptomatic. That is, the veteran complains of increased discomfort particularly when doing hard labor. Clinically, current findings, not previously observed, have included tenderness over the lateral epicondyle, crepitance and pain which accompanies resisted motion. While noting the increased signs and symptoms, it must also be emphasized that current manifestations do not more nearly meet the criteria for a compensable rating under Diagnostic Codes 5206 or 5207 because any limited motion of the elbow currently shown is not of the requisite degree. At the same time, the cited regulations pertaining to the rating of musculoskeletal disabilities require that factors such as pain on movement and deformity must be taken into consideration. In this case, the disability involves the minor extremity. No radiographic abnormalities are shown. Limitation of motion of the elbow is not clinically confirmed. Neither is any associated instability, weakness, swelling or excess fatigability. On the other hand, there a slight deformity in the form of a prominence over the medial elbow, tenderness over the elbow and documented pain on resisted motion. In addition, the veteran reports that his work involves heavy labor, which is when the elbow is symptomatic. It is the Board's judgment that under the facts of this case, the signs and symptoms of the left elbow disability are equivalent to the case where there is loss of forearm flexion to 100 degrees. Accordingly, we find that a 10 percent rating is warranted. It is also the Board's judgment that the 10 percent schedular evaluations is adequate to rate the elbow disability under the facts of this case. According to 38 C.F.R. § 3.321(b), an extraschedular rating may be awarded where the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. We do not find disability causing marked interference with employment or frequent periods of hospitalization in this case. The evidence preponderates in favor of the claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for traumatic arthritis of the left elbow is denied. A 10 percent rating for residuals, left elbow dislocation, is granted, subject to the criteria which govern the award of monetary benefits. NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.