Citation Nr: 0006478 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 97-08 723 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of fracture of the right radial head, currently rated as 10 percent disabling. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active service from November 1972 to October 1975 and from September 1980 to January 1983. This appeal arises from a January 1996 rating decision which denied claims for increased ratings for residuals of right radial head fracture and for bilateral hearing loss. In his February 1997 Notice of Disagreement as well as in a statement of September 1997, the veteran requested a hearing before an RO hearing officer. By letter of November 1997, the RO scheduled a hearing for the veteran at the RO for a date in December. A December 1997 notation in the record by an RO official is to the effect that the hearing was canceled after a conference with the veteran's representative. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeals has been obtained by the RO. 2. The veteran's residuals of a fracture of the right (major) radial head are manifested by complaints of elbow pain at the limits of motion, with objective findings including full elbow flexion and pronation, extension limited to 5 degrees, supination to 80 degrees, tenderness at the elbow and in the radial, median, and ulnar nerve distribution, and 4/5 arm strength, and are no more than minimally disabling according to competent medical opinion. 3. The veteran's right ear average pure tone threshold is 36 decibels, with 88 percent speech recognition ability that corresponds to acuity level II; the left ear average pure tone threshold is 44 decibels, with 74 percent speech recognition ability that corresponds to acuity level IV. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for residuals of a fracture of the right radial head are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5003, 5010, 5212 (1999). 2. The schedular criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (effective prior to and on and after June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board of Veterans Appeals (Board) finds that the veteran's claims for increased ratings are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board also finds that all relevant evidence for equitable disposition of the claims has been obtained to the extent possible. I. Factual Background The veteran's service medical records (SMRs) reflect that in April 1975 he sustained a fracture of the radial head of the right arm in a slip-and-fall accident. The SMRs also noted bilateral high frequency sensorineural hearing loss in 1981. In an August 1983 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating. The veteran requested increased ratings from time to time, but VA audiometry tests failed to show the requisite level of hearing loss disability. During an August 1991 VA examination, the veteran reported his in-service fracture of the right radial head. He reported intermittent swelling and pain in the right elbow with strenuous activity. The examiner found a normal right elbow with full range of motion and no deformity, swelling, tenderness, or painful movement. X-rays showed a tiny olecranon spur and minimum deformity of the capitellum, consistent with old trauma. The impression given by the radiologist was tiny olecranon spur, and no acute fracture or evidence of osteoarthritis. The VA medical examiner noted that X-rays showed very mild degenerative changes. The diagnosis was status post right elbow fracture resulting in early post-traumatic arthritis of the elbow joint. In a September 1991 rating decision, the RO granted service connection for residuals of fracture of the right radial head and assigned a noncompensable evaluation based on the lack of evidence of arthritis or limitation of motion. The veteran appealed the noncompensable rating. In February 1992, the veteran testified at an RO hearing that he could not fully extend the right arm at the elbow. He reported that he could fully flex the elbow as long as he did not do any work with that arm. He reported that any kind of work caused swelling that noticeably restricted range of motion at the elbow, and he also noticed decreased flexion at the wrist. He testified that he took Ibuprofen for arm pain. By rating action of November 1992, the RO implemented a hearing officer's decision the same month which assigned a 10 percent rating for the residuals of fracture of the right radial head from April 1991. The veteran requested an increased rating for hearing loss in August 1993. He reported that he wore hearing aids in both ears. VA audiometric testing in October 1993 did not indicate that a compensable rating was warranted, and the RO denied a compensable rating by rating action of May 1994. A private clinical report from Perviz Heyat, M.D., dated in July 1995 indicated that the veteran had to stop using his hearing aids because they caused bilateral otitis externa. Dr. Heyat also reported that the veteran had to quit certain exercises (curling weights) because of elbow pain. He felt that the veteran had developed probable tendon strain of the elbow while exercising. Dr. Heyat recommended periodic icing of the elbow, and felt that there was no elbow bone deformity or arthritis. Later in July 1995, the veteran reported to the RO that he had chronic tendinitis of the right arm. In September 1995, VA X-rays of the right elbow showed an olecranon spur with some eburnation compatible with olecranon bursitis. A September 1995 VA examination report noted that the veteran could not fully extend the right arm. Flexion was to 125 degrees, and extension to zero degrees was not possible. There was no neurological deficit, false motion, or shortening. There was some evidence of angulation of the right elbow joint, as well as pain on movement of the joint. The examiner commented that the original elbow injury might have caused damage to the tendon which, in turn, resulted in slight flexion deformity. On VA audiometric evaluation in September 1995, pure tone thresholds, in decibels, were as follows (ANSI): HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 50 60 LEFT 15 10 15 65 75 Average pure tone thresholds were 36 in the right ear and 41 in the left ear. Speech recognition ability was 96 percent bilaterally. During the examination, the veteran reported constant high-pitched ringing. Moderate bilateral sensorineural impairment was noted. By rating action of January 1996, the RO continued a noncompensable rating for bilateral hearing loss under Diagnostic Code 6100. A 10 percent rating for residuals of a right radial head fracture was also continued under Diagnostic Code 5212. An August 1996 private X-ray reports indicated minimal degenerative changes at the right radial head which the radiologist felt could be due to old trauma, a probable old surgical defect in the ulna, and a small olecranon spur. The right wrist was negative. Subsequently in August, G. P. Naum III, D.O., reported that X-rays revealed osteoarthritis of the right proximal radial head which was secondary to previous injury and a bone spur of the olecranon, and that the veteran's wrist problem was suggestive of tendinitis. In May 1997, the veteran reported that his hearing loss was more disabling than currently evaluated because he could not wear hearing aids due to the otitis media that they caused. He stated that he had never lifted heavy weights, and felt that Dr. Heyat had misunderstood that to be the cause of his right elbow problem. He also submitted statements from lay witnesses in support of his claims of worsening hearing and inability to lift with his right arm. On VA examination of December 1997, the veteran reported activity-related right elbow pain for which he took Naprosyn. He was noted to be right-handed, and stated that he was not currently working. He denied subluxation, instability or significant swelling. The examiner noted that no effusion was present. Active and passive range of motion of the right elbow was from 5 to 145 degrees, with pain at the extremes. He had active supination and pronation from 0 to 80 degrees. Range of motion of the right wrist was full. There was mild tenderness over the medial epicondyle. There was minimal to no tenderness over the radiocapitellar joint, and no tenderness to palpation of that area on forearm pronation or supination. The wrist extensors were non-tender. There was no varus or valgus instability of the elbow. There was no tenderness over the olecranon and triceps insertion. Elbow flexion and extension strength were 4/5. There was mild pain with maximum exertion. Finger strength was 5/5, with tenderness in the radial, median, and ulnar nerve distributions. There was a palpable pulse at the fingers, and the shoulder had full, painless range of motion. X-rays showed degenerative changes at the wrist and shoulder; the elbow joint showed no evidence of joint space narrowing or osteophyte formation. The diagnosis was moderate right elbow pain, which the examiner felt was probably related to the inservice radial head fracture. Noting the minimal findings on the current examination, the examiner opined that the degree of disability related to the veteran's right elbow pain appeared to be minimal. On VA examination of the ears in February 1998, audiological evaluation showed pure tone thresholds, in decibels, as follows (ANSI): HERTZ 500 1000 2000 3000 4000 RIGHT X 15 15 55 60 LEFT X 15 20 55 85 The average pure tone thresholds were 36 in the right ear and 44 in the left ear. Speech recognition ability was 88 percent in the right ear and 74 percent in the left ear. On examination, the veteran complained of periodic episodes of vertigo, which the examiner felt might represent Meniere's disease. Further testing for Meniere's disease was suggested, but the veteran was taking medication at that time for a non-service-connected disability which precluded testing for that disorder. A private physician recommended that the medication not be discontinued, as a result of which testing for Meniere's disease was not conducted. A May 1999 private clinical report noted right otitis externa, and right elbow pain, assessed to be possible right elbow tendinitis. In June 1999, the veteran reported that he could not play ball or use hand tools and that the range of motion of his right elbow had become more restricted. II. Legal Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations, and the Board must consider all regulations that could reasonably apply. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592-594 (1995). 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. The regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. An Increased Rating for Residuals of Fracture of the Right Radial Head Under the laws administered by VA, disabilities of the elbow and forearm are rated under 38 C.F.R. Part 4, Diagnostic Codes 5205 through 5213. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes, and only one hand is to be considered major. 38 C.F.R. § 4.69. All discussion of the appellant's disability in this case relates to his right (major) extremity. Degenerative arthritis (hypertrophic or osteoarthritis), when 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 (Diagnostic Code 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints and two or more minor joint groups and there is occasional incapacitating exacerbation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. The U.S. Court of Appeals for Veterans Claims (Court) has emphasized that, when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. Under the applicable criteria, a noncompensable rating is warranted when flexion of the major forearm is limited to 110 degrees or more. A 10 percent rating requires that flexion be limited to 100 degrees. A 20 percent rating requires that flexion be limited to 90 degrees. 38 C.F.R. Part 4, Diagnostic Code 5206 (1999). A 10 percent rating is warranted when extension of the major forearm is limited to 45 degrees. A 20 percent rating requires that extension be limited to 75 degrees. 38 C.F.R. Part 4, Diagnostic Code 5207 (1999). A 20 percent rating is warranted for residuals of fracture of either elbow joint when there is marked cubitus varus or cubitus valgus deformity, or when there is an ununited fracture of the head of the radius. 38 C.F.R. Part 4, Diagnostic Code 5209 (1999). Nonunion of the radius and ulna, with a false flail joint, warrants a 50 percent rating when the major upper extremity is involved. 38 C.F.R. § 4.71a, Diagnostic Code 5210 (1999). Under Diagnostic Code 5211 for the major upper extremity, a 10 percent rating is warranted for malunion of the ulna with bad alignment. A 20 percent rating is warranted for nonunion of the ulna in the lower half. 38 C.F.R. § 4.71a, Diagnostic Code 5211 (1999). Under Diagnostic Code 5212 for the major upper extremity, a 10 percent rating is warranted for malunion of the radius with bad alignment. A 20 percent rating is warranted for nonunion of the radius in the upper half 38 C.F.R. § 4.71a, Diagnostic Code 5212. Under Diagnostic Code 5213 for the major upper extremity, limitation of supination of the forearm to 30 degrees or less warrants a 10 percent rating. Limitation of pronation of the forearm warrants a 20 percent rating if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation. Bone fusion with loss of supination and pronation of the forearm warrants a 20 percent rating if the hand is fixed near the middle of the arc or in moderate pronation. 38 C.F.R. §§ 4.71a, Diagnostic Code 5213 (1999). In this case, the veteran's residuals of a fracture of the right radial head have been rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5212, for the entire appeal period. Hence the Board's review will be limited to determining whether the symptoms warrant a rating greater than 10 percent under any applicable Diagnostic Code. The clinical evidence reflects that there is full flexion of the right elbow (i.e., to 145 degrees), and that extension is limited to 5 degrees. There is pain at the limits of motion. Supination and pronation of the forearm are to 80 degrees. Arm strength is 4/5. There is tenderness at the elbow and in the radial, median, and ulnar nerve distributions. The medical evidence further indicates that the veteran is right- handed and that lifting with the right arm causes him additional pain. X-ray evidence of osteoarthritis at the radial head has been medically linked to the service- connected injury. Comparing the above symptoms and clinical findings with the provisions of the rating schedule under Diagnostic Codes 5206 through 5213, the Board finds that a rating in excess of 10 percent is not warranted. Malunion or non-union of the radius is not shown, there is no significant limitation of motion of any affected joint, and there is no flail joint or evidence of bad alignment. Inasmuch as Diagnostic Code 5010 authorizes a minimum 10 percent rating for osteoarthritis confirmed by X-rays, and such is shown here, the Board finds that a 10 percent rating is warranted in this case. The Board notes that there is objective evidence of pain on use that appears to limit the veteran's ability to lift with his right arm. There is also some weakness, as evidenced by the examiner's finding of 4/5 strength. In considering entitlement to a higher rating based on additional functional impairment caused by such symptoms, a question for resolution is whether such additional functional limitation causes the disability to more nearly approximate the next higher rating. In this case, the Board finds that any such additional functional impairment does not warrant increasing the veteran's disability rating to 20 percent under any applicable Diagnostic Code, in light of the December 1997 VA examiner's notation of only minimal findings on examination and his opinion that the residuals of the elbow injury resulted in only minimal disability. With consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and the Court's holding in DeLuca, the Board finds that the criteria for a rating in excess of 10 percent have not been met. As the preponderance of the evidence is against the claim for a rating in excess of the 10 percent currently assigned the residuals of fracture of the right radial head, the appeal is denied. Because the preponderance of the evidence is against the claim, the reasonable doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. A Compensable Rating for Bilateral Hearing Loss The schedule for rating hearing loss disability found at 38 C.F.R. Part 4 was revised effective June 10, 1999. See 64 Fed. Reg. 25208-09 (May 11, 1999). Where, as here, the applicable regulations are changed during the course of an appeal, the veteran is entitled to resolution of his claim under the criteria that are to his advantage. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO issued a Supplemental Statement of the Case in July 1999 that appears to contain only the former criteria for rating hearing loss disabilities. The RO has not considered the veteran's claim for a higher rating for bilateral hearing loss under the revised criteria, and then compared the results to determine whether any advantage to the veteran resulted. Such action is normally necessary in the first instance to avoid any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). However, the Board notes that the revised regulation in this case reorganized the prefatory information, clarified that hearing tests are to be conducted without the use of hearing aids, and provided additional rating criteria for exceptional hearing impairment not shown in this case. The criteria applicable to the instant case are essentially identical under both the old and the new regulations. Therefore, the Board finds that no prejudice to the appellant shall result from the Board's consideration of the issue on appeal at this time. In this case, service connection is in effect for bilateral hearing loss. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110 (effective prior to and on and after June 10, 1999). The Court has held that the assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board has considered the veteran's contentions that his hearing impairment is more severe than the objective medical findings show. However, the February 1998 VA audiometric evaluation has produced findings that are accurate assessments of the veteran's hearing acuity. That testing shows a right ear average pure tone threshold of 36 decibels, with 88 percent speech recognition ability that corresponds to acuity level II; the left ear average pure tone threshold is 44 decibels, with 74 percent speech recognition ability that corresponds to level IV. See 38 C.F.R. § 4.85, Table VI (effective prior to and on and after June 10, 1999). The Board finds that level II hearing, when combined with level IV hearing, warrants a noncompensable rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Table VII (effective prior to and on and after June 10, 1999). To be assigned a compensable schedular rating, the average pure tone thresholds and/or speech recognition scores would have to reflect significantly greater hearing loss than is evident in this case. Because the preponderance of the evidence is against the claim for a compensable rating, the reasonable doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. As a compensable rating for bilateral hearing loss is not warranted, the appeal is denied. ORDER A rating in excess of 10 percent for residuals of fracture of the right radial head is denied. A compensable rating for bilateral hearing loss is denied. THOMAS A. PLUTA Member, Board of Veterans' Appeals