BVA9501119 DOCKET NO. 93-08 140 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for traumatic degenerative joint disease of the right elbow, currently evaluated at 10 percent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. D. Walker, Associate Counsel INTRODUCTION The veteran had active service from October 1981 to July 1985, with approximately three years of prior active service. Statements received from the veteran indicate that he may also be seeking service connection for a left shoulder disorder, as secondary to his service-connected right elbow disorder. This issue has not been adjudicated by the regional office (RO) and is not inextricably intertwined with the issue currently before the Board of Veterans' Appeals (Board). Therefore, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the disorder in his right elbow is progressively getting worse. He states that because of the pain in his right elbow he uses his right arm less and the arm is becoming weaker. He further contends that his right elbow occasionally locks, which is excruciatingly painful, and, when it locks, he has to slowly bend and flex it to straighten it out. 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. 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 veteran's claim for an increased evaluation for traumatic degenerative joint disease of the right elbow. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the Department of Veterans Affairs (VA) RO. 2. Symptoms of traumatic degenerative joint disease of the right elbow are currently manifested by range of motion of 10 degrees on extension and 140 degrees on flexion, and complaints of pain and occasional locking. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for traumatic degenerative joint disease of the right elbow are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.71 (Plate I), 4.71a, Diagnostic Codes 5003, 5010, 5206, 5207, 5208 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The pertinent evidence pertaining to the issue on appeal consists of VA orthopedic examinations in July 1992 and VA treatment records from April 1992 to September 1992. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.1 (1993). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. In determining whether an increased evaluation is proper, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or in equal balance, the claim is allowed. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints, muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (1993). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. According to Diagnostic Code 5010, traumatic arthritis is to be evaluated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis is to be evaluated based on the limitation of motion of the joint, but if the disorder is noncompensable under the applicable diagnostic code due to insufficient limitation in the range of motion, the disorder is evaluated at 10 percent. 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. 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. 38 C.F.R. § 4.59 (1993). Diagnostic Code 5206 provides a noncompensable evaluation if flexion is limited to 110 degrees and a 10 percent evaluation if flexion is limited to 100 degrees. In order to warrant an evaluation of 20 percent, flexion must be limited to 90 degrees. Diagnostic Code 5207 provides a 10 percent evaluation if extension is limited to 45 degrees and Diagnostic Code 5208 provides a 20 percent evaluation if flexion is limited to 100 degrees and extension is limited to 45 degrees. Diagnostic Code 5213 provides a 20 percent evaluation if pronation is limited so that the motion of the hand is lost beyond the last quarter of the arc and a 10 percent evaluation if supination is limited to 30 degrees or less. See 38 C.F.R. §§ 4.71 (Plate I), 4.71a (1993). II. Evaluation of Traumatic Degenerative Joint Disease of the Right Elbow The veteran's service medical records show that in July 1979 he reported having a knot on his right elbow that was painful and growing larger. In May 1984 he reported pain, locking, and clicking in his right elbow. The veteran had full range of motion with no redness, swelling, or tenderness, but with crepitation on rotation. An X-ray taken at that time revealed loose bodies in the olecranon fossa and coronoid fossa and a bony defect at the medial condyle of the right humerus. In an examination in September 1984 the veteran reported that the right elbow used to lock when flexed but that it no longer did. The range of motion in the right elbow was 30 degrees to 125 degrees on extension and flexion and 175 degrees on pronation and supination. The report of a medical review board dated in September 1984 states that on physical examination the veteran's right elbow demonstrated minus five degrees to full extension and minus less than 10 degrees to full flexion, with full pronation and supination. A Physical Evaluation Board, convened in May 1985, determined that the veteran was no longer fit for duty because of the right elbow disorder and recommended that he be discharged with a 10 percent evaluation. A VA examination conducted in December 1985 revealed that the right elbow had mild crepitation, good range of motion, an occasional popping noise with extension, mild tenderness over the lateral aspect but no erythema or swelling. The examiner found these symptoms consistent with degenerative joint disease of the right elbow. In a rating determination issued in January 1986, the veteran was granted service connection for traumatic degenerative joint disease of the right elbow with a 10 percent evaluation under Diagnostic Code 5010 effective in August 1985. A VA examination conducted in April 1988 revealed a loss of the final 10 degrees of flexion and 10 degrees of extension in the right elbow. The right elbow had full range of motion for pronation and supination and no locking factor or crepitation was found. An X-ray taken in conjunction with the examination disclosed some deformity in the lateral condyle of the humerus and small bony densities in the joint space. A small spur was found on the olecranon process of the ulna. An X-ray taken in April 1992 revealed minor arthritic changes and loose bodies in the right elbow joint. The report of a VA orthopedic examination in July 1992 showed that the veteran had range of motion in the right elbow of 10 degrees to 150 degrees on extension and flexion, full range of motion on pronation and supination, and 5/5 strength proximally and distally. There was no objective evidence of pain on movement. The stated impression was mild degenerative joint disease of the right elbow with the functional range of motion intact. A subsequent orthopedic examination in July 1992 revealed a range of motion of 10 degrees to 140 degrees on extension and flexion with no report of pain on movement. An X-ray taken in August 1992 revealed a small olecranon spur, otherwise the right elbow was within normal limits. VA treatment notes from September 1992 showed that the veteran complained of pain and weakness in his right elbow. The stated range of motion found was 20 degrees to 120 degrees on extension and flexion with no gross instability. The preponderance of the evidence shows that an evaluation in excess of 10 percent for degenerative joint disease of the right elbow is not warranted. Under Diagnostic Code 5206 a compensable evaluation requires that flexion be limited to 100 degrees. The orthopedic examinations showed that the veteran has flexion in the right elbow of 140 degrees. Diagnostic Code 5207 requires that extension be limited to 45 degrees for a compensable evaluation. The orthopedic examinations revealed that the veteran can extend the right elbow to 10 degrees. Diagnostic Code 5208 requires that flexion be limited to 100 degrees and extension limited to 45 degrees for a 20 percent rating, which the veteran does not meet. Diagnostic Code 5213 requires that pronation be limited so that the hand cannot be rotated to the last quarter of the arc for a 20 percent evaluation or that supination be limited to 30 degrees or less for a 10 percent evaluation. The orthopedic examinations showed that the veteran has a full range of motion on pronation and supination. The disability also involves complaints of pain and occasional locking. The veteran's complaints of pain are contemplated by the current 10 percent evaluation, See 38 C.F.R. §§ 4.40, 4.59, and Diagnostic Code 5003, and there is no indication in the medical records that the level of pain is above that which is contemplated by the current evaluation. We recognize that the veteran contends that, because of his elbow disability, he must use his left arm, rather than his right arm. The medical evidence of record, however, shows no deformity of the right arm, such as atrophy, to objectively confirm the complaint. Under the applicable schedular criteria, and considering the manifestations of the disability, the current 10 percent evaluation accurately reflects the degree of disability of the veteran's right elbow. The veteran is not entitled to a compensable evaluation based on limitation of the range of motion, therefore the 10 percent evaluation under Diagnostic Code 5003 is appropriate, since he has limitation of motion that is noncompensable under the applicable diagnostic codes for motion of the elbow. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. See 38 C.F.R. § 4.7 (1993). There has been no marked interference with employment or frequent hospitalizations to warrant an extra- schedular rating. See 38 C.F.R. § 3.321(b) (1993). Therefore, the veteran is entitled to a 10 percent evaluation under Diagnostic Code 5003 for having traumatic degenerative joint disease without a compensable limitation in the range of motion and a higher evaluation is not warranted. ORDER The veteran's claim for an increased evaluation for traumatic degenerative joint disease of the right elbow is denied. WILLIAM J. REDDY 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.