Citation Nr: 0003944 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-10 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of a right elbow dislocation. 2. Entitlement to an evaluation in excess of 30 percent for a gastrointestinal disorder, variously characterized as enteritis, amebiasis, Crohn's disease, and small bowel obstruction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's daughter ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from August 1941 to November 1944. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions from the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), which denied entitlement to an increased evaluation for residuals of a right elbow dislocation and for a gastrointestinal disorder, variously characterized as enteritis, amebiasis, Crohn's disease, and small bowel obstruction Following a hearing before a member of the Board in November 1999, the veteran submitted additional evidence consisting of medical statements and treatment reports regarding the severity of his gastrointestinal disorder. The veteran waived RO consideration of this additional evidence. Accordingly, the evidence has been considered by the Board in this decision. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The weight of the probative and competent evidence shows forearm flexion from zero to 45 degrees in the dominant extremity. 3. The weight of the probative and competent evidence shows that the veteran's gastrointestinal disability is manifested by chronic diarrhea with profound anemia, cramping, weakness, leakage, and a material weight loss. CONCLUSIONS OF LAW 1. A 50 percent evaluation is warranted for residuals of a right elbow dislocation. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5206 (1999). 2. A 60 percent evaluation is warranted for a gastrointestinal disorder, variously characterized as enteritis, amebiasis, Crohn's disease, and small bowel obstruction. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7328 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). When there is a question as to which of two evaluations should be applied to a disability, the higher evaluation 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 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). I. Right Elbow Claim In a March 1999 rating decision, the RO continued a 10 percent disability evaluation for residuals of a right elbow dislocation. Entitlement to service connection was originally granted in an April 1945 rating decision and evaluated as 10 percent disabling. The veteran filed this claim for an increased evaluation of his right elbow disability in July 1998. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little-used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. See 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 (1999) contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. See 38 C.F.R. §§ 4.45 and 4.59. The veteran's right elbow disability is not specifically contemplated by the rating criteria. Pursuant to 38 C.F.R. § 4.20 (1999), when a disability is not found within the rating schedule, it is permissible to rate under a closely related disease or injury in which not only the functions affected but also the anatomical localization and symptomatology are closely analogous. The Board notes that the veteran's right elbow disability is currently rated pursuant to the criteria established for traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999) applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. Limitation of flexion in the forearm is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5206 (1999). Where forearm flexion is limited to 90 degrees, a 20 percent disability rating is warranted for both the major and minor arm. Flexion limited to 70 degrees contemplates a 30 percent disability rating for the major arm and a 20 percent rating for the minor arm. A 40 percent disability rating is warranted for flexion limited to 55 degrees in the major arm, and a 30 percent rating is warranted for the minor arm. Flexion limited to 45 degrees contemplates a 50 percent rating for the major arm and a 40 percent rating for the minor arm. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant or major. A December 1949 VA examination noted the veteran as right-handed. Thus, his disability involves his major extremity. See 38 C.F.R. § 4.69 (1999). The most recent and therefore most probative evidence of the veteran's right elbow disability is the October 1998 VA examination of the elbow. Upon examination, the veteran reported four prior surgeries on his elbow and continued difficulty performing his usual activities of daily living as a result of pain, weakness, and stiffness in the right elbow. The veteran also reported flare-ups on a constant basis. The veteran stated that he was unable to do anything that required heavy lifting or twisting of his elbow. Physical examination of the right elbow revealed asymmetry compared to the left with evidence of protrusion of the elbow. A seven- centimeter scar on the posterior portion of the elbow was also noted. Range of motion in the right elbow was noted as zero to 45 degrees flexion with no pain and no ankylosis; zero to 60 degrees supination with no pain and no ankylosis; and zero to 60 degrees pronation with no pain and not ankylosis. The examiner noted there appeared to be no significant decrease in the range of motion. X-ray examination of the right elbow revealed no abnormalities. A diagnosis of residuals of a right elbow dislocation with chronic pain was noted. Additionally, the veteran and his daughter testified at his November 1999 hearing before a member of the Board. The veteran stated that he felt pain in his right elbow when lifting heavy articles. (Transcript, pages 5-6). The veteran also reported pain and discomfort when writing and buttoning his shirts. (Transcript, pages 7-8). The veteran's daughter testified that she had observed the veteran experiencing difficulty holding a fork several weeks earlier and she did not think he could carry a ten to fifteen pound bag with his right arm. (Transcript, page 13). In light of the aforementioned evidence, the Board concludes that the veteran's right elbow disorder more nearly approximates to a 50 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5206. Although the examiner opined there was no significant decrease in limitation of motion, flexion of the right elbow was noted as zero to 45 degrees. The undersigned recognizes that a measure of incompatibility pervades the examiner's findings. The report, however, is not inherently implausible as it stands. I am not permitted to superimpose my judgment upon the medical data. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, I conclude that at least at the time concerned the veteran's right elbow flexion probably did not exceed 45 degrees. As the veteran is right-handed, a 50 percent evaluation is warranted for that degree of limitation of motion. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that when a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1998) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. §§ 4.40 and 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Id. The October 1998 VA examiner noted no pain on range of motion testing, but did note a diagnosis of chronic pain. The Board considered the veteran's testimony as to weakness and pain in awarding the aforementioned 50 percent evaluation and finds that an additional evaluation due to pain is not warranted. II. Gastrointestinal Claim In an October 1996 decision, the Board granted entitlement to service connection for a gastrointestinal disability, currently diagnosed as Crohn's disease. In a December 1996 rating decision, the RO implemented that decision and awarded a 30 percent disability rating for a gastrointestinal disability, effective June 4, 1993. The veteran filed a notice of disagreement as to the 30 percent disability rating and a substantive appeal was perfected in July 1998. In cases where a veteran is awarded service connection for a disability and subsequently appeals the initial assessment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). As previously noted, when a disability is not found with the rating schedule, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20 (1999). The veteran's gastrointestinal disability is currently rated as analogous to irritable colon syndrome and has been evaluated as 30 percent disabling. A 30 percent disability rating is warranted for irritable colon syndrome with severe diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319 (1999). A 30 percent evaluation is the highest disability rating available under that diagnostic code. The veteran's disability may also be rated as analogous to resection of the small intestine. A 40 percent disability rating is warranted for resection of the small intestine with definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. Resection of the small intestine with marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss warrants a 60 percent evaluation. See 38 C.F.R. § 4.114, Diagnostic Code 7328. The veteran's gastrointestinal problems are well documented throughout his voluminous claims file. A May 1997 VA treatment record reflects a history of a small bowel obstruction with an ileal resection and appendectomy in 1959. It was also noted that chronic diarrhea since the surgery, six times per day, had been the norm. The veteran was admitted to the hospital and treated for bleeding ulcers and profound anemia. It was noted that the veteran continued to experience chronic diarrhea during his hospital admission. Upon VA examination dated in July 1997, the examiner noted a five to six pound weight loss in the past year and severe diarrhea. A diagnosis of protracted diarrhea secondary to extensive intestinal surgery for Crohn's colitis and malnutrition/anemia was noted. Additionally, VA treatment records dated from 1997 to 1998 reflect continued treatment for chronic diarrhea and anemia. A September 1998 record noted that the veteran had been drinking a nutrition supplement for the past year without a successful weight gain. The records consistently noted that the veteran experienced approximately six bowel movements a day. At his November 1999 hearing before a member of the Board, the veteran testified that he had an average of six to seven bowel movements per day, and as many as ten when it was severe. The veteran also reported having to run to the bathroom after each meal and sometimes not making it in time. The veteran testified that he was unable to reach a bathroom quickly enough as often as once a week. He stated that he wore undergarments to keep from soiling his clothes. The veteran described his stools as loose and watery. He also reported cramps and pain with the diarrhea. (Transcript, page 10). The veteran testified that he experienced some leakage also. Additionally, the veteran reported a 25 to 28 pound weight loss since January 1999. The veteran stated that a supplement he had been taking caused additional diarrhea and he was currently trying different medications to control it. (Transcript, page 11). The veteran testified that he received B12 shots once a week for his anemia and that he was very weak and chronically tired. (Transcript, page 13). The veteran's daughter testified that she had observed significant weight loss and suffering by her father throughout the past year. (Transcript, page 15). Additional evidence submitted at the veteran's November 1999 hearing consists of private medical opinions and treatment reports dated in 1999. The records reflect that the veteran's weight had decreased from 128 pounds in January 1999 to 103 pounds in October 1999. It was noted that his medical condition had recently worsened. Marked anemia was also noted as well as continuous treatment with medication. The records also reflect that the veteran was admitted to a private hospital for treatment of an upper gastrointestinal bleed in September 1999. In light of the aforementioned evidence demonstrating chronic diarrhea with profound anemia, cramping, weakness, leakage, and a continued inability to gain weight, the Board concludes that the veteran's gastrointestinal disability more nearly approximates to a 60 percent disability rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7328 in that it demonstrates marked interference with absorption and nutrition manifested by severe impairment of health objectively supported by examination findings including material weight loss. As the Board has herein assigned one increase in regard to the veteran's gastrointestinal disorder, without specifying effective dates or differentiating between multiple periods, the question of staged ratings has not been decided as prejudicial to the veteran; rather, in this case the Board has determined that none of the evidence of record supports an evaluation higher than that assigned, at any point within the appeal. Accordingly, no prejudice has resulted herein. Bernard v. Brown, 4 Vet. App. 392-394 (1993). Finally, the Board notes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1 (1999) specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." In the present case, the record is silent for evidence demonstrating frequent periods of hospitalization due to the veteran's service-connected disabilities. The records demonstrate two hospitalizations related to his service-connected disabilities since 1997. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in the absence of an exceptional or unusual disability picture. ORDER A 50 percent evaluation for residuals of a right elbow dislocation is granted, subject to controlling regulations affecting the payment of monetary awards. A 60 percent evaluation for a gastrointestinal disorder, variously characterized as enteritis, amebiasis, Crohn's disease, and small bowel obstruction, is granted, subject to controlling regulations affecting the payment of monetary awards. John E. Ormond, Jr. Member, Board of Veterans' Appeals