Citation Nr: 0002936 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 95-10 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE 1. Entitlement to an increased rating for residuals of a right wrist injury (major), currently evaluated as 30 percent disabling. 2. Dissatisfaction with the initial 10 percent rating assigned following a grant of service connection for tendonitis of the right elbow secondary to the service- connected right wrist injury. REPRESENTATION Appellant represented by: Maine Division of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from November 1962 to November 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision by the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA) which confirmed and continued the veteran's 30 percent rating for his residuals of a right (major) wrist injury, and which granted entitlement to service connection for right (major) elbow tendonitis with a 10 percent evaluation assigned to that disability. The veteran timely appealed that decision and testified before a hearing officer at the RO in September 1995. In April 1997, the Board remanded the case back to the RO for a subsequent VA examination to determine the current nature and extent of the veteran's service-connected disabilities. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The residuals of a fracture of the right wrist are manifested by post-traumatic arthritis, and marked pain which is severely aggravated with dampness and rain; Wrist flexion on the right is 50 degrees and extension is 40 degrees. The veteran experiences weakened movement and excess fatigability with strenuous and prolonged activity involving the right wrist. There is no nonunion, malunion, fixed pronation or supination, ankylosis or bony fusion of the right wrist. 3. The veteran's service-connected right elbow tendonitis is productive of normal flexion and extension, supination diminished by 10 degrees, and pronation possible to 50 degrees only. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals of a right wrist (major) injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.31, 4.40, 4.45. 4.59 and 4.71a, Codes 5010, 5212, 5213, 5214, 5215 (1999). 2. The criteria for a schedular rating of 20 percent for the veteran's service-connected tendonitis of the right elbow but not more, has been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.40, 4.45, 4.59, and 4.71a, Codes 5024- 5206, 5207, 5208, 5213 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims as to these issues are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). When there is a question as to which of two evaluations should be applied, 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). The rating schedule provides that when an unlisted disability is encountered, it will be 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. 38 C.F.R. § 4.20 (1999). In evaluating increased rating claims, the Board will also consider the provisions of 38 C.F.R. §§ 4.40, 4.45. Under 38 C.F.R. § 4.40, functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), 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") expounded on the necessary evidence required for a full evaluation of orthopedic disabilities. In this case, the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. It was also held that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Right Wrist At the outset, the Board notes that where entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. Further, although a review of the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all medical evidence of record, the Board will focus primarily on the most recent medical findings regarding the current level of the veteran's service-connected disability. Historically, the Board notes that the veteran suffered a crush-type injury during service and submitted a claim for service connection upon separation from service in November 1968. The veteran was originally granted service connection for residuals of a right wrist injury, with a 10 percent evaluation assigned in May 1969. In October 1969, the RO increased the veteran's evaluation for his service-connected right wrist disability to 20 percent effective from the date of service connection. Thereafter, in February 1974, the RO again increased the veteran's evaluation for his service- connected right wrist disability to 30 percent, effective from the date of his May 1973 increased rating claim. In November 1993, the veteran submitted a claim for a rating in excess of 30 percent for his service-connected residuals of a right wrist injury. The Board notes that the 30 percent evaluation for the veteran's service connected right wrist disorder has been in effect for more than 20 years and is therefore protected. See 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951(b) (1999). The veteran was afforded VA examinations in September 1994, October 1995 and October 1996 to determine the severity of the veteran's service-connected residuals of a right wrist injury. Objective medical findings from the September 1994 examination show marked degree of loss of range of motion of the right wrist. Flexion was limited to 45 degrees and extension was limited to 35 degrees. Radial and ulnar deviation were essentially normal. The veteran's entire right hand appeared swollen and hand grasp strength was fair. Objective evidence from the veteran's October 1995 examination revealed essentially fairly normal right wrist in conformity, comparable to the left. On the right, palmar flexion was 40 degrees, compared to 45 degrees on the left, and dorsiflexion/extension was 44 degrees, compared to 60 degrees on the left. Diagnosis was status-post right wrist injury, partial resection of the distal ulna, subsequent radial syloidectomy, subsequent development of radial carpal degenerative changes. Objective medical evidence from the October 1996 VA examination indicated flexion of the right wrist was limited to 45 degrees and extension was limited to 35 degrees. Ulnar deviation was limited to 40 degrees and radial deviation was limited to 15 degrees. The veteran had excellent hand grasp strength. Impression was residuals of non-union fracture of the right ulnar styloid. In April 1997, the Board remanded the case back to the RO for further development. Specifically, the Board found that none of the three latest VA examinations (September 1994, October 1995, and October 1996) reflected clinical findings responsive to the RO's request for specific criteria as set forth in DeLuca. As such, the Board determined that another, more comprehensive examination was necessary to adequately assess the severity of the veteran's service-connected disabilities. A review of the medical evidence added since the Board's April 1997 remand indicates that the veteran was afforded VA examinations in September 1997 and August 1998. Subjective complaints at the September 1997 examination included pain, with aching in the right wrist during changes in the whether. The veteran also reported occasional swelling of the right wrist. Upon physical examination of the upper extremities, no deficits were noted. Wrist flexion and extension on the right were 35 degrees. Ulnar deviation was 20 degrees. X- rays of the right wrist revealed sclerosis and degenerative joint disease in the radial-ulnar articulation distally. There were very mild changes in the radial-carpal articulation. The remainder of the wrist and hand were within normal limits. Impression was status post dislocation of the distal end of the right ulna; status post surgical reduction in length of the distal ulna by resection of a bone collar distally; bone grafting of the right distal ulna with resection of the radial styloid; post-traumatic arthritis of the radial-ulnar articulation and the radial-carpal joint. The examiner further noted that the radial-carpal articulation had not shown any progressive deterioration, but the radial-ulnar articulation has, which was reflected in the increased loss of pronation in the right forearm. There was weakened movement and excess fatigability with strenuous and prolonged activity involving the right hand, wrist and forearm. There was no loss of coordination. The veteran was afforded another VA examination in August 1998. At that time, the veteran complained of marked pain in his right wrist, with a decrease in strength of 50 percent. The veteran indicated that dampness and rain severely aggravate the pain in the wrist. Upon physical examination, grossly, there were no external signs of upper extremity deficits. Wrist flexion on the right was 50 degrees and extension was 40 degrees, compared to wrist flexion of 75 degrees and extension of 75 degrees on the left. Radial deviation on the right was 10 degrees, compared to 15 degrees on the left. Ulnar deviation was normal bilaterally. X-rays of the right wrist showed sclerosis and degenerative joint disease in the radioulnar articulation distally. There were minimal changes in the radiocarpal articulation. The remainder of the wrist was within normal limits. The examiner's impression was status-post dislocation of the distal end of the right ulna; status-post surgical reduction of a bone collar distally; status-post bone grafting of the right distal ulna with resection of the radiostyloid; and post-traumatic arthritis of the radioulnar articulation and the radiocarpal joint. The examiner noted that there was some mild increase in the arthritic changes affecting the radioulnar articulation. There was weakened movement and excess fatigability with strenuous and prolonged activity involving the right wrist. There was no loss of coordination. Currently, the veteran contends that his service-connected right wrist disability is more disabling than represented by the assigned 30 percent rating. The Board has considered all relevant diagnostic codes in the VA's Schedule for Rating Disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5212, 5214, 5215. Diagnostic Code 5212 governing ratings for impairment of the radius. Under Diagnostic Code 5212, impairment of the radius, the major extremity, nonunion in the lower half, with false movement, a 40 percent evaluation will be assigned where there is loss of bone substance (1 inch or more) and more marked deformity. A 30 percent evaluation will be assigned where there is no loss of bone substance or deformity. Under Diagnostic code 5214, which provides ratings for ankylosis of the wrist, a 30 percent rating is warranted for favorable ankylosis of the major wrist in 20 degrees to 30 degrees dorsiflexion. A 40 percent rating is assigned where there is unfavorable ankylosis of the major wrist, unless the ankylosis is unfavorable in any degree of palmar flexion, or with ulnar or radial deviation, in which case a 50 percent evaluation would be warranted. In addition, extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125. In this case, the medical evidence shows that in September 1997, right wrist flexion was 35 degrees, compared to wrist flexion of 50 degrees in August 1998. In September 1997, right wrist extension was 35 degrees compared to right wrist extension of 40 degrees in August 1998. Additionally, radial deviation of the right wrist was 20 degrees in September 1997, compared to 10 degrees in August 1998. Ulnar deviation on the right in September 1997 was 35 degrees, compared to normal ulnar deviation in August 1998. The examiner in August 1998 noted some mild increase in the arthritic changes affecting the radioulnar articulation. There was weakened movement and excess fatigability with strenuous and prolonged activity involving the right wrist, although no loss of coordination was noted. The objective evidence does not therefore demonstrate findings which are suggestive of nonunion of the radius or the ulna, or ankylosis in the right upper extremity. In addition the five examination reports of record indicate that the veteran's motion of the right wrist has varied slightly over the years, but was most limited at 35 degrees of extension (dorsiflexion) and 35 degrees of palmar flexion in September 1997. Moreover, a 10 evaluation is the only rating provided for limitation of motion of the wrist under Diagnostic Code 5215, and the veteran already has assigned a 30 percent evaluation for his service-connected right wrist disability. In this regard, the 30 percent rating assigned has been in effect for over 20 years, and therefore is protected. Finally, the veteran cannot receive a rating in excess of 30 percent based on arthritis of the wrist because the arthritis is rated based on the aforementioned limitation of motion of the wrist. Likewise, the veteran cannot appropriately be rated under Diagnostic Code 5214, as the evidence has not objectively shown the right wrist to be ankylosed. In sum, the various VA examinations fail to show that the veteran meets the criteria for a rating in excess of 30 percent for service-connected residuals of a right wrist injury. In addition, the medical evidence does not establish that there is false movement or nonunion of the radius or ulna. In addition, the medical evidence does not establish that the hand is fixed in supination or hyperpronation, or that the wrist is ankylosed in an unfavorable angle or degree. The veteran's current rating of 30 percent does take into account the pain, and limitation of function in the right upper extremity. DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). The Board has also considered these factors in determining whether he is entitled to a higher rating for this disability. However, the evidence does not show that these factors would warrant a higher evaluation. Accordingly, the Board concludes that the schedular criteria for a rating in excess of 30 percent for residuals of a right (major) wrist injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.31, 4.40, 4.45. 4.59 and 4.71a, Codes 5010, 5212, 5213, 5214, 5215 (1999). The preponderance of the evidence is against the claim for an increased rating for residuals of a right (major) wrist injury. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Elbow As a preliminary matter, the Board notes that this issue relates to the initial rating following separation from service, and accordingly is potentially subject to graded ratings. See Fenderson v West, 12 Vet. App. 119 (1999). However, after review of this issue, the Board is of the opinion that such graded ratings are not appropriate in the veteran's case. In an October 1994 rating decision, service connection was granted for right elbow tendonitis, secondary to the veteran's residuals of a right wrist injury, and was assigned a 10 percent evaluation, effective November 16, 1993. The veteran appealed the initial 10 percent rating assigned following the grant of service connection. The veteran was afforded VA examinations in September 1994, October 1995 and October 1996 to determine the severity of the veteran's right elbow tendonitis. Objective medical evidence from the September 1994 examination indicated normal range of motion in flexion of the right elbow, but the veteran was unable to extend past 15 degrees. Pronation was limited to 45 degrees and supination was normal. The veteran had an area of point tenderness over the lateral aspect of the right elbow. The veteran was diagnosed with chronic tendonitis of the right elbow. Objective evidence from the veteran's October 1995 examination revealed a normal right elbow in appearance without obvious swelling or deformity. The right elbow motion was from the 10 degree point to the 135 degree point, a 10 degree "flexion contracture" existed. Right elbow pronation was 80 degrees with supination 90 degrees. Diagnosis was early minor degenerative changes of the right elbow. Objective medical evidence from the October 1996 examination showed decreased range of motion of the right elbow. The veteran was unable to fully extend at the right elbow. Range of motion was normal in flexion but was limited to 10 degrees with extension. Pronation and supination were normal. The impression was right elbow tendonitis with inability to completely extend at the elbow. The veteran was afforded a personal hearing at the RO in September 1995. The veteran testified that he has limited motion of the right wrist and elbow. The veteran testified that the pain and limitation of motion is becoming more severe with age. The veteran contended that his employment is limited due to the pain and loss of motion of his right wrist and elbow. In April 1997, the Board remanded the case back to the RO for further development. Specifically, the Board found that none of the three latest VA examinations (September 1994, October 1995, and October 1996) reflected clinical findings responsive to the RO's request for specific criteria as set forth in DeLuca. As such, the Board determined that another, more comprehensive examination was necessary to adequately assess the severity of the veteran's service-connected disabilities. Subsequent to the Board's remand, the veteran was afforded additional VA examinations in September 1997 and August 1998. Subjective complaints during the September 1997 include an inability to fully straighten the right elbow. Upon physical examination, the lateral epicondyle of the right elbow was minimally sensitive. Forearm rotation revealed normal supination, but pronation was possible to 50 degrees only. X-rays of the right elbow were unremarkable. The diagnosis was recurrent tennis elbow, right, mild. Physical examination in August 1998 revealed normal flexion and extension of the right elbow. The epicondyles of the right elbow were not sensitive during the examination. Forearm rotation revealed supination to be diminished by approximately 10 degrees. Pronation was possible to 50 degrees only. X-rays of the right elbow where within normal limits. Currently, the veteran contends that his service-connected right (major) elbow disability has been more disabling since the date of the grant of service connection than has been represented by the 10 percent rating. The veteran has been rated under Diagnostic Code 5024-5206. The Board has considered all relevant diagnostic codes in the VA's Schedule for Rating Disabilities. Diagnostic Code 5024 governs rating for tenosynovitis. Diagnostic Code 5024 provides that tenosynovitis will be rated on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a (1999). Diagnostic Code 5003 provides that 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. When, however, the limitation of motion of the specific joint or joints involved is non-compensable 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, and rated as a single disability under the Diagnostic Code for degenerative or hypertrophic arthritis. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a (1999). Where the elbow joint is involved, Diagnostic Code 5206 provides for a noncompensable evaluation if flexion of the forearm is limited to 110 degrees. A 10 percent evaluation is assignable 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 for a 10 percent evaluation if extension is limited to 45 or 60 degrees. If extension is limited to 75 degrees, a 20 percent evaluation would be assigned. Further, under Diagnostic Code 5208, a 20 percent evaluation is warranted if flexion is limited to 100 degrees and extension is limited to 45 degrees. Supination and pronation of the forearm is evaluated pursuant to Diagnostic Code 5213. A 10 percent rating is warranted for limitation of supination to 30 degrees or less, and a 20 percent rating is warranted for limitation of pronation with motion lost beyond the middle of arc or beyond the last quarter of arc, with the hand not approaching full pronation. See 38 C.F.R. § 4.71 (Plate I), 4.71a (1999). In this case, the medical evidence shows that the veteran has normal flexion and extension of the right elbow. However, forearm rotation revealed supination to be diminished by 10 degrees, and pronation was only possible to 50 degrees. Under Diagnostic Code 5213 (impairment of supination and pronation), the veteran is entitled to a 20 percent rating due to limitation of pronation. Specifically, the medical evidence shows that motion is lost beyond the last quarter of the arc, the hand does not approach full pronation. Alternatively, the medical evidence does not indicate that the veteran's pronation is limited by loss of motion beyond the middle of the arc. In addition, the evidence does not show that the veteran is entitled to a rating in excess of 20 percent under Diagnostic Codes 5205, 5206 and/or 5207. The objective medical evidence does not indicate that the veteran's right elbow is ankylosed. Moreover, the medical evidence indicates that the veteran's flexion and extension of the right elbow are within normal limits. Finally, x-rays of the veteran's right elbow were unremarkable. As such, the veteran is entitled to a 20 percent rating, but not more, for tendonitis of the right elbow secondary to service-connected residuals of a right elbow injury. The 20 percent rating takes into account the pain, and limitation of function in the right upper extremity. DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). The Board has also considered these factors in determining whether he is entitled to a higher rating, in excess of 20 percent, for this disability. However, the evidence does not show that these factors would warrant a higher evaluation. In light of the medical evidence and the veteran's contentions indicating that he has suffered from the same symptoms since service, the Board finds that the level of severity of the veteran's service-connected disability has been 20 percent disabling since the effective date of service connection. As such, the 20 percent disability rating should be assigned effective from the same effective date as that in effect for service connection. A rating in excess of 20 percent is not warranted for the reasons and bases previously set forth as there is no additional evidence for review. Accordingly, a schedular rating of 20 percent connection for the veteran's service-connected tendonitis of the right elbow but not more, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.40, 4.45, 4.59, and 4.71a, Codes 5024- 5206, 5207, 5208, 5213 (1999). ORDER Entitlement to a rating in excess of 30 percent for residuals of a right wrist injury is denied. A schedular rating of 20 percent but not more, is warranted for the veteran's service-connected right elbow tendonitis, subject to the controlling laws and regulations governing monetary disbursements. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals