Citation Nr: 19146220 Decision Date: 06/13/19 Archive Date: 06/13/19 DOCKET NO. 15-40 046 DATE: June 13, 2019 ORDER The Notice of Disagreement (NOD) regarding the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain received March 4, 2013, was not timely and the appeal is denied. An effective date prior to March 4, 2013, for service connection for sleep apnea is denied. An initial rating in excess of 10 percent for right ankle strain is denied. An initial rating in excess of 10 percent for limitation of flexion of the left elbow is denied. An initial rating in excess of 10 percent for limitation of flexion of the right elbow is denied. An initial compensable rating for left elbow medial epicondylitis (limitation of supination and pronation) is denied. An initial compensable rating for right elbow medial epicondylitis (limitation of supination and pronation) is denied. An initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. In a November 2009 rating decision, service connection was granted for pes planus and hypertension, and was denied for hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, and sleep apnea. 2. The Veteran submitted a timely NOD with the November 2009 decision in December 2009 at which time he also submitted a service connection claim for a left shoulder strain. 3. In a January 2010 rating decision, service connection for a left shoulder condition was denied. 4. A Statement of the Case (SOC) was issued in March 2012 regarding the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, and sleep apnea. 5. The SOC was reissued to the Veteran’s updated address in October 2012. 6. The Veteran submitted a document titled NOD received by VA on March 4, 2013, appealing the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain. 7. The NOD submitted in March 2013 was untimely; therefore, the November 2009 rating decision is final. 8. Subsequent to submitting the March 2013 NOD, the Veteran also submitted a new claim for service connection for sleep apnea and private medical records. 9. The correct facts, as they were known at the time of the November 2009 decision, were before the Board, and the statutory or regulatory provisions extant at the time were correctly applied. 10. The Veteran’s right ankle strain has resulted in objective evidence of pain on motion and palpation but no other functional limitation throughout the appeal period. 11. The Veteran’s left and right elbows had normal range of motion but exhibited pain on flexion at the March 2017 VA examination. 12. At no time during the appeal period has supination of the Veteran’s left and right elbows been limited to 30 degrees or less or exhibited pain on that motion. 13. The Veteran’s GERD has resulted in symptoms of pyrosis and regurgitation, worse at night and leading to sleep disturbances, throughout the appeal period. CONCLUSIONS OF LAW 1. The document titled Notice of Disagreement that was received by VA in March 2013 was not timely regarding the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.201, 20.302 (2018). 2. The criteria for an effective date prior to March 4, 2013, for service connection for sleep apnea have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 3. The criteria for an initial rating in excess of 10 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5271 (2018). 4. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the left elbow have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5206 (2018). 5. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the right elbow have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5206. 6. The criteria for an initial compensable rating for left elbow medial epicondylitis (limitation of supination and pronation) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5213 (2018). 7. The criteria for an initial compensable rating for right elbow medial epicondylitis (limitation of supination and pronation) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5213. 8. The criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1986 to July 2009. 1. Timeliness of the NOD Generally, after a decision has been issued by the Agency of Original Jurisdiction (AOJ), an appeal to the Board consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 C.F.R. §§ 20.200, 20.201. An NOD is a written communication filed with the AOJ that, among other things, expresses dissatisfaction or disagreement with an adjudicative determination. 38 C.F.R. § 20.201. An NOD may be filed by the claimant, his fiduciary, or such accredited representative, attorney, or authorized agent as he/she may select. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.301(a). The time limit for the filing of an NOD is governed by 38 C.F.R. § 20.302(a), which provides that a claimant, or his or her representative, must file an NOD with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. See also 38 U.S.C. § 7105. Following the issuance of an SOC, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Here, the Veteran submitted a claim for service connection for pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, and sleep apnea, among other conditions, upon release from active duty. In a November 2009 rating decision, service connection was granted for pes planus and hypertension, and was denied for hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, and sleep apnea, and other conditions. The Veteran submitted a timely NOD in December 2009 at which time he also submitted a service connection claim for a left shoulder strain. Subsequently, in a January 2010 rating decision, service connection for a left shoulder strain was denied. An SOC was issued in March 2012 regarding the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, and sleep apnea, which was sent to the Veteran’s on-file address in Georgia, which was returned to sender as undeliverable. The Veteran contacted VA in October 2012 requesting a copy of the SOC. He provided his new, updated address in Virginia and the SOC was reissued to that provided address on October 10, 2012, with an indication that he had 60 days to respond. This SOC was not returned as undeliverable. The Veteran submitted a document titled NOD received by VA on March 4, 2013, appealing the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain. He stated plainly on the document that he did not receive the SOC until November 2012 due to the incorrect address. The Veteran submitted a similar document in May 2013, as well. The NOD was determined by VA to be untimely as both an NOD and a Substantive Appeal as to the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain. The Veteran appealed. He also submitted new claims for several of the issues listed in the NOD. In a February 2017 statement, the Veteran claimed that the second copy of the SOC mailed in October 2012 was sent to the old, incorrect address, and that he therefore never received it and had to file to have his case reopened. The Board finds that the document received by VA on March 4, 2013, is both an untimely NOD and Substantive Appeal for the issues of pes planus, hypertension, hearing loss, left wrist ganglion cyst, right wrist ganglion cyst, left knee condition, sleep apnea, and left shoulder strain. The issues denied in the November 2009 rating decision (everything listed above except for left shoulder strain) were appealed in a timely NOD, which resulted in the March 2012 SOC. At that point the Veteran had until May 2012 to submit a Substantive Appeal. Because the Veteran had changed addresses, the SOC was reissued to the new, correct address in October 2012 and he was given until December 2012 to perfect his appeal. He did not respond until March 2013, at which time he stated that he received the SOC in November 2012. The original decision was issued in November 2009; thus, the March 2013 NOD was clearly untimely. Further, though titled an NOD, if the document was treated as a Substantive Appeal, it still was untimely as it was received long after the 60-day response window had closed. The Board finds the Veteran’s statement that it was sent to the wrong address and that he never received the second copy of the SOC to be completely unpersuasive, as the correct address was noted at the October 2012 communication, he specifically stated that he had received it in November 2012, and no copy was returned to VA as undeliverable. Thus, the March 2013 NOD was untimely for the issues appealed from the November 2009 rating decision. Regarding the left shoulder strain, it was originally denied in a January 2010 rating decision, thus the one-year period to submit an NOD ended in January 2011. The Veteran did not submit a timely NOD within the one-year period. He included left shoulder strain in his list of appeals in the March 2013 NOD, which was clearly beyond the appeal timeframe. Thus, the March 2013 NOD was untimely for the left shoulder strain claim. 2. Earlier Effective Date The Veteran was granted service connection for sleep apnea in a January 2017 rating decision which found that a previous denial in September 2014 had been clearly and unmistakably erroneous. Service connection was granted effective March 4, 2013. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2018). A “claim” is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). Prior to March 24, 2015, any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Since March 24, 2015, upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; see also Norris v. West, 12 Vet. App. 413, 421 (1999). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). Generally, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). When service connection is awarded on a direct basis, the effective date may not be earlier than the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Generally, a claim which has been denied in an unappealed rating decision is final. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The Veteran submitted a claim for sleep apnea upon his discharge from active duty. The claim was denied in a November 2009 rating decision. The Veteran submitted a timely notice of disagreement in December 2009, and an SOC was issued in March 2012. As noted above, the Veteran did not timely perfect his appeal. As per this decision, the March 2013 document labeled by the Veteran as an NOD was not a timely NOD or Substantive Appeal. As such, the November 2009 rating decision is final. Subsequent to submitting the March 2013 NOD, the Veteran provided another sleep apnea claim and additional medical treatment records. As such, the AOJ construed the March 2013 NOD as a new claim for sleep apnea. Service connection was later awarded effective the date of the March 4, 2013 claim. The Veteran has argued several theories in support of an earlier effective date for the grant of service connection. First, he argued that the March 2013 NOD was timely, and the sleep apnea claim should date back to the original date of claim, which here would be the first date after his release from active duty, August 1, 2009. However, as has been outlined above, the March 2013 NOD was not timely, and the November 2009 decision was final. Therefore, an earlier effective date cannot be awarded on that basis. Second, he stated that medical evidence was of record at the time of the November 2009 decision which should have supported an award of service connection, as it was the same evidence upon which service connection was eventually awarded in the January 2017 rating decision. Essentially, he has argued that a clear and unmistakable error (CUE) was committed in the November 2009 decision. AOJ decisions that are final, and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed and evaluated; or that the statutory or regulatory provisions existing at that time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error. CUE is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 U.S.C. § 5109A; C.F.R. §§ 3.105(a). For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. The law at the time of the November 2009 decision held that generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). The evidence of record at the time of the November 2009 included the Veteran’s service treatment records (STRs) which contained a few reports of frequent trouble sleeping. His April 2009 service separation examination noted that he had shortness of breath at night, sometimes which woke him from sleep, in conjunction with left-sided chest pain. He also experienced morning grogginess, heavy snoring, daytime somnolence, napping during the day, and headaches upon waking. The examiner stated “Likely sleep apnea. Was evaluated via polysomnography.” The STRs did not contain a polysomnography or diagnosis of sleep apnea. Also of record at the time of the decision was an August 2009 VA examination. The Veteran reported to the examiner that he had been diagnosed with sleep apnea in 2006 and then again in 2009. The examiner determined that a precise diagnosis of sleep apnea could not be rendered as there was no objective data to support a definitive diagnosis of the condition. The Board finds that no CUE resulted from the November 2009 rating decision. Although there was an indication of probable sleep apnea in service, there was no objective evidence of an actual diagnosis of the disorder. The Veteran’s lay statements alone are not enough to diagnose a complex medical condition. There was no error made which is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Whether the VA examiner should have ordered a polysomnography is debatable, but a mere failure to fulfill the duty to assist does not constitute CUE. The correct facts that were known at the time of the decision were applied to the current law of the time. Accordingly, no CUE was committed as a result of the November 2009 decision. Therefore, an earlier effective date for the grant of service connection for sleep apnea is not warranted on the basis of a CUE theory. The Veteran has argued that private medical evidence he submitted in March 2013 which detailed the results of a polysomnography conducted in May 2009 and a similar study in July 2009 had been submitted prior to the November 2009 decision. However, there is no indication that the records had been submitted prior to March 2013. The November 2009 decision clearly listed that the STRs and the VA examination were the only medical evidence of record. As private records, they would not automatically have been associated with the claims file. It was not until the Veteran submitted them in March 2013 that VA was aware of a confirmed diagnosis of sleep apnea. It is the burden of the Veteran to provide notice of relevant private treatment records to VA. Woods v. Gober, 14 Vet. App. 214, 224 (2000) (Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim). As such, the Board finds the Veteran’s contention unpersuasive. Based on the foregoing, an effective date for the award of service connection for sleep apnea cannot be awarded earlier than the date of claim to reopen the prior final denial. Here the claim to reopen was received March 4, 2013. Entitlement to an earlier effective date is not warranted. 3. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating code provides that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). A. Right Ankle Strain The Veteran’s right ankle disability is currently rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5271, relevant to limitation of motion of the ankle. DC 5271 provides a 10-percent rating for moderate limitation of motion, and a 20-percent rating for marked limitation of motion. Normal range motion of the ankle, for VA compensation purposes, is from zero degrees to 20 degrees ankle dorsiflexion and from zero degrees to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II (2018). The descriptive words “mild,” “moderate,” and “marked” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran underwent a VA examination in August 2009. Pain and stiffness were reported, with no deformity, giving way, instability, decreased speed of motion, dislocation or subluxation, locking episodes, effusions, inflammation, abnormality, or flare-ups. There was no objective evidence of pain with motion and range of motion was zero to 20 degrees in dorsiflexion and zero to 45 degrees in plantar flexion. There was no additional limitation after repetitions. X-ray examination revealed no evidence of fracture or dislocation, no periosteal reaction or bone erosions, and normal soft tissue outlines. The effects on occupational activities were determined to be decreased mobility and strength along with pain. Another VA examination was conducted in October 2010. The Veteran described intermittent pain, weakness, stiffness, and giving way. He denied deformity, instability or locking, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness, drainage, or flare-ups. Range of motion in dorsiflexion was zero to 20 degrees without pain, plantar flexion was from zero to 45 degrees without pain, inversion was zero to 30 degrees without pain, and eversion was zero to 20 degrees without pain. Repetitive motion was negative for subjective reports or objective indicators of pain, fatigue, weakness, lack of endurance, or incoordination. X-rays were normal. There were no noted effects on the Veteran’s usual occupation. A VA record from April 2016 noted that the Veteran reported that his ankles were aching. It was reported that his right ankle strength was 5 out of 5 on dorsiflexion, plantar flexion, eversion, and inversion. The Veteran underwent another VA examination in March 2017 where he reported that his ankle disability affected his ability to carry heavy equipment and that it had worsened. He stated he had no flare-ups and the functional impact included no prolonged walking, standing, or running. Range of motion was zero to 20 degrees in dorsiflexion and zero to 45 degrees in plantar flexion with pain noted on dorsiflexion which did not result in functional loss. There was no evidence of pain with weight-bearing or objective evidence of crepitus but there was objective evidence of pain on passive range of motion and in nonweight-bearing. Mild tenderness on palpation of the lateral side of the joint was observed. There was no additional functional loss with repetitive motion. With repeated use over time, the examiner determined that pain would limit functional ability and range of motion would be limited to zero to 15 degrees in dorsiflexion and zero to 40 degrees in plantar flexion. There was no instability or dislocation suspected. The functional impact was limited prolonged walking. The Board finds that the Veteran’s right ankle disability warrants a 10 percent disability rating throughout the appeal period. Upon evaluation, his range of motion is normal and without evidence of other symptomology such as instability, locking, effusions, inflammation, flare-ups, etc. However, there is objective evidence of pain in the right ankle. Accordingly, the Veteran is entitled to the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As there is no indication that the Veteran’s right ankle strain has had marked limitation of motion, including after repeated use over time, a higher evaluation is not warranted. The Board has also considered whether evaluation under other diagnostic codes relevant to the ankles would be appropriate. However, there is no evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. Therefore, rating under other codes is not merited. Based on the foregoing, a rating in excess of 10 percent for the Veteran’s right ankle strain is not warranted. B. Elbow Disabilities The Veteran’s bilateral elbow disabilities are rated 10 percent and a noncompensable rate under 38 C.F.R. § 4.71a, DC 5206 and DC 5213, for limitation of flexion of the forearm and impairment of supination and pronation, respectively. The noncompensable rates under DC 5213 were effective August 1, 2009, and the 10 percent ratings under DC 5206 were effective March 14, 2017. The record establishes that the Veteran’s dominant hand is his right hand. See 38 C.F.R. § 4.69 (2018). The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are DC 5206 and DC 5207, applicable to limitation of flexion and extension of the elbow, respectively. The Veteran’s bilateral elbow disabilities are assigned a 10 percent rating under 38 C.F.R. § 4.71a, DC 5206. Under DC 5206, a 0 percent rating is warranted for the major and minor elbow where there is forearm limitation of flexion to 110 degrees; a 10 percent rating is warranted for the major and minor elbow where limitation of flexion is to 100 degrees; a 20 percent rating is warranted for the major and minor elbow where limitation of flexion is to 90 degrees; a 30 percent rating is warranted for the major elbow and a 20 percent rating for the minor elbow where limitation of flexion is to 70 degrees; a 40 percent rating is warranted for the major elbow and a 30 percent rating for the minor elbow where limitation of flexion is to 55 degrees; and a 50 percent rating is warranted for the major elbow and a 40 percent rating for the minor elbow where limitation of flexion is to 45 degrees. Under DC 5207, a 10 percent rating is warranted for the major and minor elbow where there is forearm limitation of extension to either 45 or 60 degrees and a 20 percent rating is warranted for the major and minor elbow where limitation of extension is to 75 degrees. A 30 percent disability evaluation is warranted for the major elbow and a 20 percent evaluation for the minor elbow where extension is to 90 degrees. A 40 percent disability evaluation is warranted for the major elbow and a 30 percent evaluation for the minor elbow where extension is to 100 degrees. A 50 percent disability evaluation is warranted for the major elbow and a 40 percent evaluation for the minor elbow where extension is to 110 degrees. Under DC 5213, impairment of supination and pronation of the major and minor forearms are assigned a 10 percent evaluation for limitation of supination to 30 degrees or less. A 20 percent evaluation is warranted for limitation of pronation with motion lost beyond the last quarter of the arc and where the hand does not approach full pronation. For the major elbow, a 30 percent rating is assigned when motion is lost beyond the middle arc, and for the minor elbow, a 20 percent rating is assigned. A 20 percent evaluation is also assigned for loss of supination or pronation (bone fusion) where the hand is fixed near the middle of the arc or moderate pronation in both the major and minor elbow. When the hand is fixed in full pronation, a 30 percent rating is warranted for the major elbow and a 20 percent rating for the minor elbow. When the hand is fixed in supination or hyperpronation, a 40 percent rating is granted for the major elbow and a 30 percent rating for the minor elbow. Normal ranges of motion of the elbow are zero degrees of extension to 145 degrees of flexion. See 38 C.F.R. § 4.71, Plate I (2018). Normal ranges of motion of the forearm are 80 degrees of pronation and 85 degrees of supination. Id. The Veteran underwent a VA examination in August 2009. Pain and stiffness were reported, but there was no deformity, giving way, instability, decreased speed of motion, episodes of dislocation or subluxation, locking episodes, effusions, inflammation, or flare-ups. Range of motion bilaterally was flexion at zero to 145 degrees, extension at zero to zero degrees, pronation at zero to 80 degrees, and supination at zero to 85 degrees with no objective evidence of pain with active motion or following repetitive motion. X-rays revealed no recent fracture, dislocation, or joint effusion. The effect on occupational activities was determined to be decreased mobility, strength, and manual dexterity, along with pain and problems with lifting and carrying. Another VA examination was conducted in October 2010. The Veteran reported present symptoms of intermittent sharp pain, stiffness, locking, and popping. He denied weakness, deformity, instability or giving way, locking, lack of endurance, effusion, episodes of dislocation or subluxation, inflammation, swelling, heat, redness, tenderness, drainage, or flare-ups. There were no noted effects on usual occupation. On inspection, there was no visible deformity, edema, erythema, or warmth bilaterally, and on palpation there was no tenderness, obvious joint laxity, crepitus, or instability bilaterally. Range of motion testing revealed flexion at zero to 145 degrees, supination at zero to 80 degrees, and pronation at zero to 80 degrees. In the right elbow, no pain was reported during range of motion testing. There was no objective evidence of pain, weakness, incoordination, fatigue, or lack of endurance with repetition and no subjective report of pain during repetitive motion. In the left elbow, pain was reported at all endpoints. There was no objective evidence of pain, weakness, incoordination, fatigue, or lack of endurance, but there was a subjective report of increased pain during repetitive motion. There was no additional loss of function with repetitive motion. X-rays revealed normal bony mineralization and soft tissues. In a December 2015 VA treatment record, the Veteran reported constant right lateral elbow pain that was worse with gripping and lifting objects. It was treated with ibuprofen, ice, and rest, and it was suggested he consider an over-the-counter forearm band to relieve the proximal tendon tension. A March 2016 VA treatment record noted that bilateral elbow flexion was 5/5. An April 2016 record stated that the Veteran’s elbow strength was 5/5 on flexion and extension. The Veteran underwent another VA examination in March 2017 at which he reported pain when bending the elbows which affected his ability to grip. He also stated that the pain was worsening and that he had numbness down his forearms. He reported no flare-ups but a functional impact of affected repetitive lifting and strength. Range of motion testing revealed flexion from zero to 145 degrees, extension from 145 to zero degrees, supination from zero to 85 degrees, and pronation from zero to 80 degrees bilaterally with pain noted on flexion which did not result in functional loss. There was mild tenderness on palpation of the joints, objective evidence of pain on passive motion and with nonweight-bearing, but no evidence of pain with weight-bearing or crepitus. Repetitive motion did not result in in additional functional loss. Repeated use over time was determined to cause pain which limited range of motion to flexion from zero to 140 degrees, extension from 140 degrees to zero degrees, supination from zero to 80 degrees, and pronation from zero to 75 degrees bilaterally. The functional impact was noted to be no prolonged lifting. The Board finds that the 10 percent ratings under DC 5206 and noncompensable ratings under DC 5213 are warranted throughout the respective appeal periods. Flexion and extension were normal and did not display evidence of pain on motion at the August 2009 and October 2010 examinations. The first objective evidence of pain on flexion was observed at the March 2017 examination. Although flexion was normal bilaterally, because there was evidence of pain on motion, the minimum compensable rating for the joints is warranted. 38 C.F.R. § 4.59. However, flexion has not been shown to have been limited to 90 degrees at any time. As such, a rating in excess of 10 percent under DC 5206 is not established for either elbow. There is no evidence of limitation of extension or pain on extension warranting an additional rating under DC 5207. Throughout the appeal period, supination has not been limited. As such, a compensable rating is not warranted under DC 5213. Further, because there has been no objective evidence of pain on supination noted, a minimum compensable rating under 38 C.F.R. § 4.59 is not for application. Accordingly, a compensable rating for either elbow under DC 5213 has not been established. The Board has considered whether evaluation under other diagnostic codes relevant to the elbows and forearms is appropriate. However, there is no evidence of impairment of the flail joint, nonunion of the radius and ulna, or impairment of the radius or ulna. As such, no further evaluation under other diagnostic codes is merited. Based on the foregoing, ratings for the bilateral elbows in excess of 10 percent under DC 5206 and compensable ratings under 5213 are not warranted throughout their respective appeal periods. C. GERD The Veteran’s service-connected GERD is rated 10 percent under 38 C.F.R. § 4.114, DC 7346. Under DC 7346, a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. The Veteran underwent a VA examination in August 2009 at which he reported heartburn or pyrosis several times per week and regurgitation of partially-digested food less than weekly. The occupational effect was determined to be decreased concentration and inappropriate behavior. Another VA examination was conducted in October 2010. The Veteran reported present symptoms of frequent heartburn, regurgitation of liquid and food particles, and pressure. He noted that symptoms were worse at night when laying down. Symptoms occurred one to two times per day lasting 30 minutes to three hours after meals at a 5/10 level of discomfort. He denied dysphagia or substernal/arm pain, hematemesis, or melena. There were no effects on occupational functioning. An upper gastrointestinal series revealed GERD, mild esophageal dysmotility, and small sliding hiatal hernia. Private treatment records from 2012 to 2015 contained multiple notations that the Veteran had had no unintended weight changes and that he took Nexium to treat his GERD. The Veteran underwent another VA examination in March 2017. His signs and symptoms were noted to be pyrosis, reflux, and sleep disturbance. Sleep disturbance was reported to occur four or more times per year lasting less than one day. There was no impact on functional ability. In May 2017, the Veteran reported to VA clinicians that his stomach pain was getting worse and that he needed to sleep in an inclined position to avoid regurgitation. In September 2017, it was noted that his GERD was not well-controlled on Omeprazole and his dosage was increased from 20 mg to 40 mg daily. VA clinicians stated that the Veteran’s GERD was well-controlled on the increased dosage of Omeprazole in a September 2017 record and that Omeprazole was still helpful at the 40 mg dose in an October 2017 record. The Board finds that the Veteran’s service-connected GERD warrants no more than a 10 percent rating throughout the appeal period. He consistently reported symptoms of pyrosis and regurgitation, worse at night and leading to sleep disturbances. There is no evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health or symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Accordingly, a higher evaluation is not established. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.