Citation Nr: 20004960 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 12-24 663 DATE: January 23, 2020 THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for carpal tunnel syndrome and cubital tunnel syndrome right wrist (major). 2. Entitlement to an increased rating in excess of 30 percent for right elbow, chronic tendonitis with calcification and degenerative changes (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major). 3. Entitlement to an increased rating in excess of 10 percent prior to December 29, 2017, and in excess of 20 percent thereafter for right elbow impairment of supination and pronation (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major). ORDER 1. Entitlement to an increased rating in excess of 20 percent for carpal tunnel syndrome and cubital tunnel syndrome right wrist (major) is denied. 2. Entitlement to an increased rating in excess of 30 percent for right elbow, chronic tendonitis with calcification and degenerative changes (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major) is denied. 3. Entitlement to an increased rating in excess of 10 percent prior to December 29, 2017, and in excess of 20 percent thereafter for right elbow impairment of supination and pronation (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major) is denied. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. For the entire period on appeal, the Veteran’s right arm/wrist peripheral neuropathy disabilities were manifested at most by mild, incomplete paralysis. They were not manifested by complete paralysis, severe or moderate, incomplete paralysis. 3. For the entire period on appeal, the Veteran's right elbow disability is manifested by painful motion and at worst flexion limited to 70 degrees. The right elbow disability was not characterized by flexion limited to 55 degrees or less, extension limited to 45 degrees or more, or bone fusion. 4. Prior to December 29, 2017, the Veteran has not manifested in the hand motion lost beyond last quarter of arch, the hand does not approach full pronation or fixed near the middle of the arc or moderate pronation. 5. From December 29, 2017, the Veteran has not manifested in the hand motion lost beyond the middle arc or fixed in full pronation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right carpal tunnel syndrome and cubital tunnel syndrome have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.124a, Diagnostic Code 8213, 8515. 2. The criteria for entitlement to rating in excess of 30 percent for right elbow, chronic tendonitis with calcification and degenerative changes (major) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206 (2018). 3. Prior to December 29, 2017, the criteria for entitlement to rating in excess of 10 percent for right elbow impairment of supination and pronation (major) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5213 (2018). 4. From December 29, 2017, the criteria for entitlement to rating in excess of 20 percent right elbow impairment of supination and pronation (major) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5213 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1975 and from February 1987 to February 2003. The Veteran died in March 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the RO which reduced the rating for right cubital tunnel syndrome from 10 percent to noncompensable effective December 10, 2011. If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C. § 5121A (a). As noted above, the Veteran died in March 2018. At the time of his death, the Veteran had perfected his substantive appeal. In March 2018, his surviving spouse filed her application for substitution of claimant upon death of claimant. In July 2018, the appellant was determined to be eligible for substitution. See 38 U.S.C. § 5121A (a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran’s claim to completion. The Board remanded the issues on appeal for additional development in March 2015 and again in October 2017. Those directives have been substantially complied with and the matters are again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In a May 2015 rating decision, subsequent to a March 2015 Board remand, the RO determined it had made a clear and unmistakable error by rating two separate neurological evaluations of the same extremity, which had continued since the original grant of service connection. As a result, the RO combined the two neurologically based conditions with a combined evaluation since they could not be separated. In addition, the RO recharacterized the other disabilities of the right arm to more accurately reflect the Veteran's current disabilities and categorized them under the appropriate neurological and musculo-skeletal DCs. The Board noted in its October 2017 decision, that because the original claims of the Veteran have expanded based on more current medical evaluations by the RO under the rating criteria, the Board has recharacterized the issues on appeal to reflect the realignment of the claimed disabilities and ratings of the Veteran's right arm. As such, the Board found that the Veteran's claim for an increased evaluation for right cubital tunnel syndrome should be expanded to include his other diagnoses related to the original disability. The Board found that they did not represent new and distinct claims, but were rather based on the multiple medical diagnoses from the originally claimed disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. The Veteran offered testimony before the undersigned Veterans Law Judge at a January 2015 Board hearing. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2018). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Musculoskeletal disabilities rated on limitation of motion require adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2018) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2015). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). When evaluating joint disabilities rated on the basis of limitation of motion, 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). Recently, 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. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court previously indicated 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). However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158 (2016). 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. In this case, the record establishes that the Veteran is right handed; the Veteran reported that his dominant hand is his right hand. See 38 C.F.R. § 4.69. Therefore, the right arm is the major arm. 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. 1. Entitlement to an increased rating in excess 20 percent for carpal tunnel syndrome and cubital tunnel syndrome right wrist (major) is denied. The Veteran’s right wrist disability is considered a peripheral neuropathy and has been rated as such. Prior to October 20, 2015, with the exception of the period from June 6, 2012 to August 1, 2012, the Veteran has been rated at 10 percent under Diagnostic Code 8515, which pertains to disabilities due to paralysis of the median nerve. From October 20, 2015 the Veteran, carpal tunnel syndrome and cubital tunnel syndrome has been rated at 20 percent under Diagnostic Code 8513. Since October 20, 2015, the peripheral neuropathies have been rated pursuant to the criteria under 38 C.F.R. § 4.124a, DC 8513. Those criteria pertain to disabilities due to paralysis involving all radicular groups. Under DC 8513, a 20 percent disability rating is assigned for radiculopathies of the upper extremities resulting in incomplete paralysis of all of the radicular groups characterized as "mild" for both the major and minor arm. For radiculopathies of the upper extremities resulting in incomplete paralysis of all the radicular groups characterized as "moderate," a 40 percent disability rating is assigned for the major arm while a 30 percent disability rating is assigned for the minor arm. For radiculopathies resulting in incomplete paralysis of all radicular groups and characterized as "severe," a 70 percent disability rating is assigned for the major arm while a 60 percent disability rating is assigned for the minor arm. Finally, maximum schedular disability ratings of 90 percent are assigned for the major arm and 80 percent is assigned for the minor arm for complete paralysis of all radicular groups. The regulations instruct that, where the involvement of the peripheral nerves is wholly sensory, the disability rating assigned should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. Due to the complexity of the claim currently on appeal, a detailed recitation of the procedural history is necessary. The Veteran's first rating decision, dated April 10, 2003, granted service connection for a right arm cubital tunnel syndrome at a 10 percent rating, under Diagnostic Code (DC) 8516, a neurological category of rating criteria. An April 16, 2003 rating decision granted service connection for carpal tunnel syndrome of the right wrist with degenerative arthritis, also at a rating of 10 percent, and also under a neurological rating criteria of DC 8515. The Veteran, therefore, had two separate 10 percent disability ratings for neuropathy of the upper right extremity. In an August 2, 2010 rating decision, the Veteran received a separate evaluation for right wrist degenerative arthritis at 10 percent disabling under DC 5010-5215, a category encompassing musculo-skeletal disabilities. The February 2010 examination that evaluated the right wrist arthritis also determined that the right cubital tunnel syndrome had resolved, and therefore there was no diagnosis of right cubital tunnel syndrome at the time. The RO at the time, however, continued the right cubital tunnel syndrome at 10 percent disabling and established a routine future examination. In September 2011, VA provided an examination for the right cubital tunnel syndrome. Chronic tendonitis with calcifications and degenerative changes of the right elbow was diagnosed, and the examiner remarked this was an extension of the right cubital tunnel syndrome. However, the RO determined that September 2011 medical examination was a musculo-skeletal examination, and not a neurological one, a necessary point because the cubital tunnel syndrome was evaluated for disabling purposes under neurological DCs, and not musculo-skeletal DCs. A VA neurological examination was provided in December 2011 to evaluate the right cubital tunnel syndrome, and the examiner found no current nerve condition based on a February 2011 electromyography (EMG), and the previously mentioned February 2012 rating decision reduced the evaluation of the right cubital tunnel syndrome to noncompensable. The Veteran filed a Notice of Disagreement, also in February 2012, and submitted private medical records in support of his claim. After the March 2015 Board remand for a new VA medical examination and consideration of the private medical evidence, the RO issued a rating decision in May 2015 which proposed to discontinue service connection for the right wrist carpal tunnel syndrome with degenerative changes of the right wrist and combine this condition with the right cubital tunnel syndrome, citing a clear and mistakable error, based on VA regulations that prevent pyramiding of two neurological conditions assigned for the same extremity. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). This proposal became final after the issuance of another rating decision in August 2015. In the October 2017 Board decision, the Bord found that the action to discontinue service connection for the right wrist carpal tunnel syndrome with the degenerative changes of the right wrist and combine this condition with the right cubital tunnel syndrome was proper. The most recent rating decision code sheet shows Veteran’s right wrist was assigned an initial disability rating of 10 percent from March 1, 2003 under DC 8515, a temporary 100 percent disability rating under 38 C.F.R. § 4.30 from June 6, 2012 until August 1, 2012, a 10 percent disability rating from August 1, 2012 to October 20, 2015, also under DC 8515, and a 20 percent disability rating thereafter under DC 8513. See April 2019 Rating Decision Code Sheet. The Veteran underwent surgery for his right wrist disability in June 2012. Prior to that surgery, private treatment records dated October 2011 indicate that the Veteran had “obvious degenerative at the basilar joint of the bilateral thumbs as well as mild atrophy.” Phalen’s and Tinel’s were noted to be positive. The private physician noted grip and pinch strength weakened. The Veteran reported numbness. In December 2011 the Veteran was afforded a VA neurological examination to determine the severity of his right upper extremity neuropathy conditions. The Veteran reported “moderate constant pain” and severe intermittent pain of the right upper extremity.” The Veteran also reported “severe paresthesias and/or dysesthesias of the right upper extremity.” Additionally, the Veteran reported numbness. The Veteran was noted to have trouble writing during flare-ups. Muscle strength was normal. The VA examiner found no symptoms or exam findings of upper extremity of peripheral neuropathy and indicated that the Veteran did not have right cubital tunnel syndrome, but had been misdiagnosed. The Veteran submitted another private medical treatment record from February 2012 which again indicated “positive Tinel’s and Phalen’s at both carpal and cubital tunnels with weak grip strength.” Numbness and tingling were noted, and minimal atrophy was present. A private medical note from April 2012 indicates a diagnosis of bilateral carpal tunnel syndrome and cited weakness in the right hand. An additional private medical note from April 2012 indicated that the Veteran continued to complain of numbness. The private physician noted positive Tinel’s and Phalen’s at both carpal tunnel and cubital tunnels. The Veteran had a weak grip atrophy was noted. The private medical note stated the Veteran was “neurovascularly and motor intact.” The April 2012 examiner also stated that the Veteran’s carpal tunnel syndrome was “severe,” but offered no other explanation as to whether the incomplete paralysis of the median or ulnar nerve was “severe.” The Veteran testified in the January 2015 Board hearing that he experienced pain, numbness, and weakness in his right arm. In order to clarify the nature and severity of the Veteran’s right upper extremity neuropathy, he was afforded a VA neurological examination in October 2015. The October 2015 VA examiner indicated that the Veteran had moderate intermittent pain in the right upper extremity, but noted no numbness, paresthesias, or dysesthesias. Muscle strength testing was normal and reflex examination was also normal. The Veteran was shown to have decreased sensation testing for light touch in the hand/fingers. Phalen’s sign was negative, but Tinel’s sign was positive. The VA examiner noted mild, incomplete paralysis of both the Median nerve and Ulnar nerve. The Veteran did not use assistive devices. The examination indicated that no EMG studies had been performed and there were no other significant diagnostic test findings or results. The Veteran’s peripheral neuropathy conditions resulted in him no longer being able to sustain a prolonged grip. The Board finds the VA examination reports to be probative in value regarding the severity of the Veteran's right upper extremity neuropathy. The examiner noted the Veteran's lay statements and also reported objective findings. While the Board acknowledges the Veteran’s testimony that he experienced numbness, pain, and weakness throughout his right arm and also notes he is competent to describe his symptoms, the Board ultimately finds that the October 2015 VA neurological examination more probative, as the examiner has the requisite medical knowledge to be able to properly describe the severity of the Veteran’s neurological disorder for rating purposes. The foregoing facts are consistent with mild and incomplete paralysis of the median and ulnar nerves (i.e., all radicular groups) in the Veteran's right upper extremity. Although the April 2012 private examiner noted that the Veteran suffered from “severe” carpal tunnel syndrome, he did not indicate that the paralysis of the nerve was moderate or severe. The preponderance of the evidence indicates that the Veteran's symptoms not already being rated under separate diagnostic codes detailed below are wholly sensory and therefore warrant a finding of mild incomplete paralysis. Accordingly, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent. 2. Entitlement to an increased rating in excess of 30 percent for right elbow, chronic tendonitis with calcification and degenerative changes (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major) is denied. As noted above, the Veteran had extensive right arm disabilities. He was assigned a 30 percent disability rating for a right elbow chronic tendonitis with calcification and degenerative changes under Diagnostic Code 5206 based on limitation of flexion. The appropriate diagnostic codes for evaluating limitation of motion of the elbow joint are Diagnostic Codes 5206 and 5207, applicable to limitation of flexion and extension of the elbow, respectively. The Veteran's right elbow condition is rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5206. The Veteran is assigned a separate rating under DC 5213 for impairment of supination and pronation, as will be discussed below. The Veteran underwent a VA examination in September 2011. 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. The Veteran reported flare ups “up to 24 times per day.” Range of motion was flexion at zero to 80 degrees with pain starting at 20 degrees after repetitive range of motion was limited to 70 degrees flexion. Extension was at zero to zero degrees with pain beginning at 5 degrees. Pronation was at zero to 80 degrees with pain beginning 40 degrees. Supination was at zero to 65 degrees with pain beginning at 40 degrees. The VA examiner found joint function was additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, incoordination and lack of endurance. X-rays revealed calcifications and degenerative arthritic changes. Because of his right elbow disabilities, he was unable to complete tasks in his usual occupation as a carpenter masonry worker. The Veteran’s reported pain on movement was not noted to affect stability, standing, or weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Another VA examination was conducted in December 2017 in accordance with the October 2017 Board remand directives. The Veteran reported present symptoms of intermittent numbness, weakness, and loss of range of motion, and pain. The Veteran reported flare ups “very rarely… because I do my best to avoid use of my right arm.” The Veteran also reported that he had trouble lifting objects over 20 pounds “repetitively,” and that he could not “throw a ball far.” Range of motion testing revealed flexion at zero to 105 degrees, extension from 105 to zero degrees, supination at zero to 70 degrees, and pronation at zero to 75 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. There was no additional loss of function with repetitive motion. When asked to describe whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups, the VA examiner indicated that “it is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these condition.” Muscle strength was noted to be 4/5 flexion and 5/5 extension. No muscle atrophy or ankylosis was recorded. The VA examiner noted “limited pronation with motion lost beyond the last quarter of the arc; hand does not approach full pronation.” The Veteran did no use assistive devices. While the Board notes that the Veteran continued to complain of decreased range of motion and pain during the entire period on appeal, there is no objective medical evidence that his range of motion was limited to less than 70 degrees flexion. The Board finds that at no time during the period on appeal was the Veteran’s right elbow disability manifested by limitation of flexion less than 70 degrees. Therefore, a rating in excess of 30 percent for a right elbow disability under Diagnostic Code 5206 has not been met or approximated. 3. Entitlement to an increased rating in excess of 10 percent prior to December 29, 2017, and in excess of 20 percent thereafter for right elbow impairment of supination and pronation (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major) is denied. The Veteran has been assigned a separate rating for his right elbow disability based on impairment of supination and pronation under Diagnostic Code 5213. The Veteran underwent a VA examination in September 2011. 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. The Veteran reported flare ups “up to 24 times per day.” Range of motion was flexion at zero to 80 degrees with pain starting at 20 degrees and additional degree of limitation at 20 degrees. Extension was at zero to zero degrees with pain beginning at 5 degrees. Pronation was at zero to 80 degrees with pain beginning at 40 degrees. Supination was at zero to 65 degrees with pain beginning at 40 degrees. The VA examiner found joint function was additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, incoordination and lack of endurance. X-rays revealed calcifications and degenerative arthritic changes. Because of his right elbow disabilities, he was unable to work in his usual occupation as a carpenter masonry worker. Another VA examination was conducted in December 2017 in accordance with the October 2017 Board remand directives. The Veteran reported present symptoms of intermittent numbness, weakness, and loss of range of motion, and pain. The Veteran reported flare ups “very rarely… because I do my best to avoid use of my right arm.” The Veteran also reported that he had trouble lifting objects over 20 pounds “repetitively,” and that he could not “throw a ball far.” Range of motion testing revealed flexion at zero to 105 degrees, extension from 105 to zero degrees, supination at zero to 70 degrees, and pronation at zero to 75 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. There was no additional loss of function with repetitive motion. When asked to describe whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups, the VA examiner indicated that “it is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these condition.” Muscle strength was noted to be 4/5 flexion and 5/5 extension. No muscle atrophy or ankylosis was recorded. The VA examiner noted “limited pronation with motion lost beyond the last quarter of the arc; hand does not approach full pronation.” The Veteran did no use assistive devices. While the Board notes that the Veteran displayed limitation of flexion during the period on appeal, as noted above, he is already in receipt of a separate disability rating under diagnostic code 5206. The medical evidence prior to December 29, 2017 does not indicate that the Veteran’s right hand was fixed at the middle of the arc or moderate pronation. Additionally, the medical evidence does not show motion lost beyond last quarter of arch, the hand does not approach full pronation in the period prior to December 29, 2017. Therefore, a disability rating in excess of 10 percent is not warranted for the Veteran’s right elbow impairment of supination and pronation (major) prior to December 29, 2017 under Diagnostic Code 5213. Additionally, at no time during the period from December 29, 2017 was the Veteran’s right hand fixed in supination or hyperpronation. As such, an increased rating of 40 percent is not warranted under DC 5213 from December 29, 2017. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.