BVA9507131 DOCKET NO. 93-08 773 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased evaluation for a left elbow disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bobbiretta E. Jordan, Associate Counsel INTRODUCTION The veteran had active military service from November 1949 to November 1953. This appeal to the Board of Veterans' Appeals (Board) arises from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied an increased evaluation for residuals of a left elbow disability. Entitlement to service connection for residuals of injuries to the head, face, left shoulder, wrists, back and pelvic area was denied by the Board in a decision dated in October 1972. In August 1989, the Board found that a new factual basis had not been presented to reopen the claim for service connection for these disabilities. In the veteran's Substantive Appeal, received in February 1993, he apparently again raises the issue of entitlement to service connection for residuals of injuries allegedly sustained in a fall in service, including residuals of a right arm disability. However, this matter has not been developed for appellate consideration and is referred to the RO for any appropriate action. CONTENTIONS The veteran contends, in essence, that he is entitled to an increased evaluation for his left elbow disability. It is maintained that the veteran continues to experience pain, weakness and discomfort in the left elbow and that his disability is more severely disabling than currently evaluated. It is further asserted that the veteran cannot carry things in his left hand and has difficulty driving unless the vehicle has good steering. 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 of entitlement to an increased evaluation for a left elbow disability. FINDINGS OF FACT 1. All the relevant evidence necessary for an equitable disposition of the veteran's appeal regarding a left elbow disability has been obtained. 2. The veteran's left elbow disability is currently manifested by complaints of pain on flexion, traumatic arthritis visualized on X-rays, and by flexion of the left elbow to 105 degrees and extension of the elbow to 30 degrees; weakness or false motion of the elbow is not shown. 3. No exceptional or unusual disability factors have been presented. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for a left elbow disability have not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Codes 5003, 5206, 5207, 5208, 5010 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. The veteran seeks an evaluation in excess of 10 percent for his left elbow disability. Service medical records show that the veteran dislocated his left elbow as a result of a wrestling match in the barracks. By a rating decision in March 1971, service connection was granted for residuals of dislocation of the left elbow. Following a VA examination, hypertrophic changes were associated with the service-connected left elbow disability, and a 10 percent evaluation was assigned by a rating decision dated in September 1971. The 10 percent evaluation was upheld on appeal in October 1972, and has remained unchanged ever since. In August 1989, the Board again denied the veteran's claim for an evaluation in excess of 10 percent for the service-connected left elbow disability. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service connected left elbow disability and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet.App. 55 (1994) (where an increase in a disability rating is at issue, the current level of disability is of primary concern). In September 1991, the veteran was seen by a private physician and he complained of pain in the left elbow. The veteran indicated that, for two days, he had been in pain, which began when he started to open a car door. He also related that his elbow hurt with any type of exertion. The examiner indicated that the left elbow "locked in 160 degrees." A September 1991 CT scan of the left elbow, associated with the examination, was obtained with a partial flexion of the elbow secondary to the patient's inability to completely straighten out the elbow. The radiologist's impression was osteochondromatosis with secondary degenerative change with large osteophytes seen extending into the joint space from the radial head and ulna olecranon. A January 1992 VA examination showed that the veteran complained of pain in his left elbow on flexion. The veteran reported that he dropped things carried in the left hand, that he could not drive a car unless it had good steering, and that he could not completely extend the left elbow. The examiner found that there were no gross deformities of either upper extremity and both were movable. Grossly, there did not appear to be any swelling. On examination, the veteran had flexion of the left elbow to 105 degrees with pain and extension to 30 degrees. The veteran was diagnosed as having a history of dislocation of the left elbow, and degenerative arthritis of the left elbow was also found. X- rays studies associated with the examination visualized several small ossific densities in close proximity with the joint surfaces of the left elbow joint, compatible with previous traumatic arthritic change. 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. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10. Traumatic arthritis substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, but where the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by the limitation of motion. 38 C.F.R. 4.71a, Code 5003. The veteran's left elbow disability may be evaluated under 38 C.F.R. § 4.71a, Codes 5206, 5207, and 5208. Limitation of flexion of the forearm to 90 degrees warrants a 20 percent disability rating, and limitation of flexion to 100 degrees is ratable at 10 percent under Diagnostic Code 5206. Limitation of extension of the forearm to 75 degrees warrants a 20 percent disability rating, and limitation of extension of forearm to 60 degrees is ratable at 10 percent under Diagnostic Code 5207. These ratings are unaffected by whether the left arm is the veteran's dominant upper extremity. Diagnostic Code 5208 provides for a 20 percent disability rating for flexion limited to 100 degrees and extension limited to 45 degrees. As indicated above, the medical evidence shows that the veteran developed arthritis in the left elbow as a result of his disability; however, the January 1992 VA examination shows that the veteran' exhibited left elbow flexion to 105 degrees and extension to 30 degrees. It is thus apparent that the veteran is not entitled to an evaluation greater than the currently assigned 10 percent because the range of motion of his left elbow does not equal or more nearly approximate the criteria necessary for the next higher evaluation for that joint. 38 C.F.R. § 4.7 (1994). The veteran's disability was evaluated initially under Code 5003 because noncompensable limitation of motion of the affected joint was shown, together with X-ray evidence of hypertrophic changes in the joint. However, there is no evidence to show that the service-connected disability warrants a higher evaluation under Code 5003. In evaluating a service-connected musculoskeletal disorder, the Board considers functional loss due to damage or pain. Although the veteran has complaints of pain associated with his left elbow disability, pain is contemplated in the rating currently assigned. No false motion or weakness of the left elbow was shown on recent examination, nor was any shortening of the left upper extremity found. Despite the veteran's complaints, there is no showing that the rating does not adequately compensate him for the functional loss that his disability actually produces. 38 C.F.R. § 4.40 (1994). Moreover, the evidence of left elbow disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not required frequent periods of hospitalization for the disability, nor does the evidence show that the disability has resulted in marked interference with employment. In light of these factors, the preponderance of the evidence is against an increased evaluation for the service-connected left elbow disability. ORDER An increased evaluation for a left elbow disability is denied. J. J. SCHULE 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. (CONTINUED ON NEXT PAGE) 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.