Citation Nr: 21001687 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-02 167 DATE: January 11, 2021 ORDER A compensable rating prior to May 17, 2013, and higher than 10 percent thereafter for left lateral epicondylitis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 29, 2016, is denied. FINDINGS OF FACT 1. The Veteran’s left elbow showed, at worst, 10 degrees of extension to 120 degrees of flexion. 2. Prior to November 29, 2016, the Veteran’s service-connected disabilities did not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 3. The criteria for a rating higher than 10 percent for left lateral epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5206. 4. The criteria for a TDIU prior to November 29, 2016 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to June 2002 and from January 2005 to November 2011. In August 2018, the Board remanded these matters for further development. A subsequent June 2020 rating decision increased the Veteran’s left lateral epicondylitis rating to 10 percent as of May 2013. As this does not constitute a full grant of the benefit sought on appeal, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Left Elbow In this matter, pursuant to the aforementioned June 2020 rating decision, the Veteran is in receipt of a 10 percent for epicondylitis under DC 5206 since May 2013. The Veteran’s January 2015 Appeal to Veterans’ Board of Appeal, Form 9, indicated that his left elbow has caused him pain since his active duty service, that he was unable to extend the left elbow, and that it got swollen. The only evidence of record which specifically addresses the severity of the Veteran’s left elbow disability within the applicable appeal period are December 2011 and October 2019 VA examinations. Despite VA medical care for other ailments, there are no records which establish that the Veteran received treatment for his left elbow at a VA or private medical facility. The December 2011 VA examination showed the Veteran denied flare-ups. His range of motion was, at worst, normal extension and flexion to 145 degrees. There was no functional loss or painful motion on examination. He had tenderness of the left lateral epicondile. The October 2019 VA examination showed the Veteran’s left elbow had, at worst, range of motion of 10 degrees of extension to 120 degrees of flexion with 50 degrees of supination and 65 degrees of pronation. The Veteran reported flare-ups and functional loss as difficulty driving with left elbow, grabbing door knobs, difficulty lifting objects, and an inability to do pushups. No ankylosis, flail joint, or other condition of the left elbow was noted. He reported wearing a brace regularly. His functional limitations were noted to be no repetitive flexing/extending the elbow or lifting greater than 10 pounds with the left elbow. The Veteran’s left arm is his minor arm. For reference, normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal pronation of the forearm is to 80 degrees of pronation and 85 degrees of supination. 38 C.F.R. § 4.71, Plate I. Pursuant to DC 5206, limitation of forearm flexion, for the dominant (major) arm and minor arm, a noncompensable rating is assigned for flexion limited to 110 degrees, a 10 percent rating is assigned for either arm with flexion limited to 100 degrees, and a 20 percent rating is assigned for either arm with flexion limited to 90 degrees. Based on the foregoing, the Board does not find that the evidence of record supports a rating higher than 10 percent for the Veteran’s limitation of flexion under DC 5206. His December 2011 examination showed no limitations worse than flexion limited to 145 degrees; he denied flare ups and no functional limitation was found. Thus, the Veteran’s at worst limitation of flexion during the applicable appeal period was to 120 degrees during flare-ups and after repetitive motion found in his October 2019 VA examination. This would provide a noncompensable rating under DC 5206. Thus, the 10 percent rating assigned to the Veteran takes into consideration his functional limitations and any pain, fatigability or incoordination the Veteran’s flexion limitation may cause beyond that which was documented in his October 2019 VA examination. The Veteran has not identified any evidence which showed that his flexion limitation was equal to or greater than a limitation of flexion to 90 degrees or more, which would be necessary for a rating higher than his currently assigned 10 percent. The Board has considered the effects of pain on the functional impairment resulting from the Veteran’s left elbow limitation of flexion. However, the Board finds that the effects of pain reasonably shown to be due to the Veteran’s limitation is contemplated in the 10 percent rating assigned. There is no indication that pain due to Veteran’s limitation has caused functional loss greater than that contemplated by the 10 percent rating evaluation assigned. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board notes that the Veteran is also in receipt of a 10 percent rating for his limitation of pronation under DC 5213, and a noncompensable (0%) rating for general limitation of motion under DC 5207. Furthermore, the Board has considered separate ratings for the Veteran’s left elbow under other pertinent diagnostic codes. However, there is no medical evidence of ankylosis of the left elbow, impairment of the flail joint, nonunion of the radius and ulna with flail false joint, or impairment of the radius. Accordingly, ratings are not warranted under DCs 5205, 5209, 5210, or 5212. See 38 C.F.R. § 4.71a. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU TDIU can be awarded where the scheduler rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this matter, the Veteran is service connected for a number of disabilities, including posttraumatic stress disorder (PTSD) at a 100 percent rating as of November 29, 2016. As such, as of that date, the issue of entitlement to a TDIU is moot. Prior to that date, while the Veteran’s total disability rating is 80 percent as of May 17, 2013, he does not have a single disability rated at 40 percent or more. Thus, prior to November 29, 2016, the Veteran does not meet the criteria for a TDIU. Additionally, in its August 2018 Remand, the Board instructed that a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, be sent to the Veteran for completion prior to adjudication of his claim for a TDIU. This form was sent to the Veteran on June 28, 2019. See Subsequent Development Letter. To date, no reply to the Form 21-8940 has been received by VA from the Veteran. An October 2020 Supplemental Statement of the Case (SSOC) denied TDIU and notified the Veteran that a completed VA form 21-8940 has not been received. The Veteran’s representative acknowledged as such in the December 2020 Informal Hearing Presentation (IHP). There is no evidence that the Veteran did not receive either the Form 21-8940 or the SSOC and no such argument or statement has been made by the Veteran. A VA Form 21-8940 contains information on employment and education necessary to adjudication of TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran’s current employment and education. There is no proof that the Veteran left employment due to service connected disability and there is no proof that he is incapable or returning to substantially gainful employment. The duty to assist is not a one-way street or a blind alley. For the aforementioned reasons, entitlement to TDIU prior to November 29, 2016 is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.