BVA9502909 DOCKET NO. 93-28 302 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for residuals of a fracture of the right elbow, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for chronic rhinitis, currently rated as 10 percent disabling. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from January 1967 to November 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A hearing was held at the RO in March 1993, and the hearing officer's decision was entered in May 1993. Another hearing was held before a member of the Board at the RO in December 1993. The appeal was received and docketed at the Board in December 1993. At his March 1993 personal hearing, the veteran asserted entitlement to secondary service connection for disabilities of the left shoulder and neck. This claim is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL With respect to his claim for an increased rating for residuals of a fracture of the right elbow, the veteran contends that he has experienced a significant loss of strength in his right arm and that he experiences aching in his right elbow on extended use. He states that he lacks some motion in his right elbow, and that he experiences occasional muscle spasms in his right arm. Concerning his claim for an increased rating for chronic rhinitis, he contends that such condition is bothersome during all seasons of the year but especially when the pollen count is high, at which time his sinuses stuff up and drain down into his throat. He states that he uses a humidifier on a year-round basis in order to sleep. 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 appeal for an increased rating for residuals of a fracture of the right elbow as well as his appeal for an increased rating for chronic rhinitis. FINDINGS OF FACT 1. Current manifestations of the veteran's service-connected residuals of a fracture of the right elbow, of which joint there is X-ray evidence of post-traumatic arthritis, include an ability to flex and extend the elbow to 120 and 20 degrees, respectively. 2. The veteran's chronic rhinitis is currently manifested by a mucus-obstructed left nasal airway, without evidence of nasal discharge, crusting or atrophy involving the paranasal sinuses. 3. No exceptional or unusual disability factors have been identified. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a fracture of the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Codes 5003, 5010, 5206, 5207, 5208 (1993). 2. The criteria for a rating in excess of 10 percent for chronic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 6501 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that these claims are plausible. The Board is also satisfied, with respect to each claim, that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). 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 (1993). 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; 38 C.F.R. §§ 4.1, 4.10 (1993). Service connection is in effect for residuals of chip fracture of the right elbow with limitation of motion and post-traumatic sclerosis of the cortical margins and osteophyte in the olecranon fossa, for which the RO has assigned a 10 percent rating under the provisions of Diagnostic Code 5010 of the Rating Schedule; and for chronic rhinitis, evaluated as 10 percent disabling under Diagnostic Code 6501. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of each disability for which entitlement to an increased rating is asserted. The Board has found nothing in the historical record which would lead it to conclude 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 which would warrant an exposition of the remote clinical histories and findings pertaining to either disability for which entitlement to an increased rating is currently asserted on appeal. I. Residuals of Fracture of Right Elbow Under the schedular criteria, the evaluation of the veteran's service-connected residuals of a fracture of the right elbow turns on the degree to which motion in the elbow is limited. 38 C.F.R. Part 4, Diagnostic Codes 5010, 5003. Under Diagnostic Code 5206, a 10 percent evaluation is warranted when flexion of the forearm of the major upper extremity is limited to 100 degrees; a 20 percent evaluation requires that flexion be limited to 90 degrees. Under Diagnostic Code 5207, a 10 percent evaluation is warranted when extension of the forearm of the major upper extremity is limited to 45 degrees; a 20 percent evaluation requires that extension be limited to 75 degrees. Under Diagnostic Code 5208, a 20 percent evaluation is warranted when flexion of the forearm of either upper extremity is limited to 100 degrees and extension of the forearm of the same upper extremity is limited to 45 degrees. The veteran complains of loss of strength in his right arm and diminished motion in the right elbow. In this regard, when the veteran, who is right-handed, was examined by VA in September 1992, findings included right elbow flexion to 140 degrees, with full range of motion on supination and pronation. Findings on X-ray examination of the right elbow included probable avulsive traumatic changes involving both the medial and lateral epicondyles of the distal humerus. The pertinent examination diagnosis was residual of injury to the right elbow, chip fracture with decreased grip in the right hand. When most recently examined by VA, in March 1993, the veteran complained of an inability to fully straighten out the elbow. Findings on examination included right elbow extension and flexion to 20 and 120 degrees, respectively, with normal pronation and supination. The examination diagnosis, following pertinent X-ray examination, was osteoarthritis of the right elbow with some restriction of range of motion as noted. In considering the veteran's claim for an increased rating, the Board acknowledges his current contention relative to restricted motion in the right elbow, which loss of motion is substantiated in the findings on his March 1993 VA examination. Notwithstanding the foregoing consideration, however, the Board is of the opinion that an increased rating for the veteran's service-connected right elbow disability is not in order. In reaching the foregoing conclusion, the Board would emphasize that the finding on VA examination in March 1993 of an ability to flex the right elbow to 120 degrees, though representing a loss of 20 degrees of flexion from the corresponding finding on VA examination in September 1992, is nevertheless indicative of insufficient restriction in right elbow flexion to warrant entitlement to a 20 percent rating under Diagnostic Code 5206. Similarly, the finding on VA examination in March 1993 of an ability to extend the right elbow to 20 degrees is indicative of insufficient restriction in right elbow extension to warrant entitlement to a 20 percent rating under Diagnostic Code 5207. Finally, given the veteran's current ability to flex and extend his arthritic right elbow to 120 and 20 degrees, respectively, entitlement to a 20 percent rating under the criteria of Diagnostic Code 5208, set forth above, is also not in order. The Board would additionally point out that, in the absence of X-ray evidence of deformity of the elbow joint or ununited fracture of the head of the radius, entitlement to an increased rating under Diagnostic Code 5209 is precluded; and that, in the absence of any indication of limitation of right hand pronation or supination, entitlement to an increased rating under Diagnostic Code 5213 is also precluded. In light of the foregoing observations, the Board is of the opinion that the preponderance of the evidence is against the veteran's claim for an increased rating for his service-connected residuals of a fracture of the right elbow. In reaching the foregoing determination, the Board has given due consideration to the provisions of 38 C.F.R. § 4.7, which provide that where 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. However, the record does not show that the actual manifestations of this disability more closely approximate those required for a 20 percent rating than they do the disability rating currently assigned. Finally, while the veteran indicated at his December 1993 hearing that he had recently discontinued employment as an elevator installer owing to considerations related by the veteran including weakness of the right upper extremity which he associated with his service- connected right elbow disability, it is noted that the veteran subsequently obtained a position involving primarily driving and the Board is otherwise unable to identify any exceptional or unusual circumstances warranting a higher rating on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Accordingly, the Board is unable to identify a reasonable basis for a grant of this benefit on appeal. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Codes 5003, 5010, 5206, 5207, 5208. II. Chronic Rhinitis Under the schedular criteria, a 10 percent evaluation is warranted for chronic atrophic rhinitis with definite atrophy of the intranasal structure and moderate secretion; a 30 percent evaluation requires moderate crusting, ozena, and atrophic changes. On VA examination in September 1992, the veteran's sinuses were clear on pertinent X-ray examination; on physical examination, slight tenderness to palpation over the sinus areas was noted. At his hearing in April 1993, the veteran indicated that he used over-the-counter medications and occasionally used a hot towel to alleviate congestion in his sinuses during periods when the pollen count is high. When examined by VA in March 1993, the veteran elaborated that, during the pollen season, his eyes swell and his nose becomes runny and he suffers from sneezing. On physical examination, the veteran's left nasal airway was noted to be obstructed by edematous mucosa, though the right airway was clear and breathing could be facilitated through that nostril. The veteran's paranasal sinuses transilluminated well, and he was free of post nasal discharge. On pertinent X-ray examination, the veteran's sinuses were noted to be well aerated, without evidence of abnormal mucosal thickening or air fluid level. The pertinent examination diagnosis was allergic rhinitis, history of, presently symptomatic. In considering the veteran's claim for an increased rating for chronic rhinitis, the Board has no reason to dispute the veteran's essential contention that such condition is particularly troublesome during periods when the pollen count is high. Notwithstanding the foregoing consideration, however, the Board is of the opinion that an increased rating for the veteran's service-connected chronic rhinitis is not in order. In reaching the foregoing conclusion, the Board would emphasize that, except for an obstruction of the veteran's left nasal airway due to edematous mucosa, his examination by VA in March 1993 was essentially normal. In this latter regard, the Board would specifically point out that there was no indication of atrophy involving the paranasal sinuses on the recent VA X-ray examination. Further, the veteran was specifically noted to be free of post nasal discharge, and there was no indication of the requisite mucosal crusting required for the assignment of a 30 percent evaluation under Diagnostic Code 6501. Given the foregoing observations, and in the absence of any indication of currently ascertainable secretion or mucopurulent discharge, the Board is of the opinion, even after considering 38 C.F.R. §§ 4.7 and 3.321(b)(1), that the preponderance of the evidence is against the veteran's appeal for an increased rating for chronic rhinitis. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 6501. ORDER An increased rating for residuals of a fracture of the right elbow is denied. An increased rating for chronic rhinitis is denied. ROBERT E. SULLIVAN 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.