Citation Nr: 21069743 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-20 110 DATE: November 19, 2021 ORDER Entitlement to a compensable rating prior to June 28, 2014, to a rating in excess of 20 percent from June 16, 2017 to December 22, 2020, to a rating in excess of 30 percent from December 23, 2020 to May 26, 2021, and to a rating in excess of 40 percent from May 27, 2021 for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) is denied. Entitlement to a 40 percent from December 10, 2015 for right ulnar neuropathy associated with right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) is granted, subject to subject to the law and regulations governing the payment of monetary VA benefits. Entitlement to a rating in excess of 20 percent from December 23, 2020, and in excess of 30 percent from May 27, 2021, for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of pronation is denied. Entitlement to a compensable rating for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of extension is denied. Entitlement to a compensable rating for scar, right elbow, status-post spur and bursa excision associated with right elbow contusion with chronic olecranon bursitis spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of extension is denied. REMANDED Entitlement to a compensable rating from June 28, 2014 to June 15, 2017 for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) is remanded. FINDINGS OF FACT 1. Prior to June 28, 2014, flexion of the Veteran's right elbow did not approximate limitation to 100 degrees. 2. From June 16, 2017 to December 22, 2020, flexion of the Veteran's right elbow did not approximate limitation to 70 degrees. 3. From December 23, 2020 to May 26, 2021, flexion of the Veteran's right elbow did not approximate limitation to 55 degrees. 4. From May 27, 2021, flexion of the Veteran's right elbow did not approximate limitation to 45 degrees. 5. For the entire rating period on appeal from December 10, 2015, the Veteran's right ulnar neuropathy manifested as severe, incomplete paralysis. 6. Prior to May 27, 2021, the Veteran's right elbow disability did not approximate limitation of pronation with motion lost beyond middle of arc. 7. From May 27, 2021, the Veteran's right elbow disability did not approximate loss of forearm pronation (bone fusion), with the hand fixed in supination or hyperpronation. 8. For the entire rating period from December 23, 2020, extension of the Veteran's right elbow did not approximate limitation to 45 degrees 9. For the entire rating period on appeal from July 20, 2012, the Veteran's right elbow scar manifested as a linear scar that was not painful or unstable and did not result in functional impairment. CONCLUSIONS OF LAW 1. Prior to June 28, 2014, the criteria for a compensable rating for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. 2. From June 6, 2017 to December 22, 2020, the criteria for a rating in excess of 20 percent for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. 3. From December 23, 2020 to May 26, 2021, the criteria for a rating in excess of 30 percent for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. 4. From May 27, 2021, the criteria for a rating in excess of 40 percent for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5206. 5. For the entire rating period on appeal from December 10, 2015, the criteria for a 40-percent rating, and not higher, for right ulnar neuropathy associated with right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as rt elbow cont. w/ chronic olecranon bursitis/spur, S/P spur and bursa excision Dx 5019-5206) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.71a, Diagnostic Code 8516. 6. Prior to May 27, 2021, the criteria for a rating in excess of 20 percent for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of pronation are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213. 7. From May 27, 2021, the criteria for a rating in excess of 30 percent for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of pronation are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213. 8. For the entire rating period from December 23, 2020, the criteria for a compensable rating for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of extension are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5207. 9. For the entire rating period on appeal from July 20, 2012, the criteria for a compensable rating for scar, right elbow, status-post spur and bursa excision associated with right elbow contusion with chronic olecranon bursitis spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of extension are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.10, 4.27, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision and was remanded in June 2019, May 2020, and April 2021. The Veteran's April 2018 request for a Board hearing was withdrawn by a filing of October 2021. Increased Rating Procedural History A rating decision of October 2015 granted service connection for right elbow contusion with chronic olec [sic] bursitis/spur, status post spur and bursa excision. A 0- percent (noncompensable) evaluation was assigned, effective July 20, 2012. The Veteran filed a notice of disagreement (NOD) in November 2015 and VA Form 9 in April 2018. The rating was subsequently increased by the agency of original jurisdiction (AOJ) as follows: to 20 percent from June 16, 2017 (March 2018 rating decision), to 30 percent from December 23, 2020 (January 2021 rating decision), and to 40 percent from May 27, 2021 (June 2021 rating decision). The January 2021 rating decision redesignated the disability as right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision). The January 2021 rating decision also established separate disability ratings for the right elbow. Service connection was granted for right elbow ulnar neuropathy (effective December 10, 2015), right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of pronation (effective December 23, 2020), right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, with limitation of extension (effective December 23, 2020), and scar, right elbow, status-post spur and bursa excision (effective July 20, 2012). The ratings established by the January 2021 rating decision for these new grants of service connection were 30 percent for neuropathy, 20 percent for limitation of pronation, and 0 percent for limitation of extension and for the right elbow scar. The Board's April 2021 remand included, as issues on appeal, entitlement to a higher rating for each of these newly established disabilities of the right elbow. Following the Board's remand, a rating decision of June 2021 increased the rating for right elbow contusion with limitation of pronation from 20 percent to 30 percent, effective May 27, 2021. A claimant may expressly limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). On the VA Form 9 filed in April 2018, the Veteran limited his claim by specifically requesting "a disability rating increase from 20 percent to 30 percent." Subsequently, a 30-percent rating for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis, effective December 23, 2020, was granted by the January 2021 rating decision. However, the Board does not consider the latter rating increase from December 23, 2020 to be a full grant of the appeal, because the Board, by remanding the increased-rating issue in April 2021, processed it as if it were still on appeal. Furthermore, an appellate brief of March 2021 argues that the Veteran is entitled to a rating in excess of 30 percent, thereby signifying that he no longer wishes to limit his appeal to the award of a 30-percent rating. The March 27, 2018 rating decision increased the rating for right elbow limitation of flexion (DC 5019-5206) from 0 percent to 20 percent, effective June 16, 2017. However, an earlier statement of the case (SOC) issued on March 1, 2018 decided that the noncompensable evaluation was to be "increased to 20 percent disabling effective June 28, 2014" (emphasis added). The Board is required to remand a case to the AOJ, specifying the action to be taken, whenever further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision. 38 C.F.R. § 19.9(a). In light of the discrepancy between the effective date of the increased evaluation as stated in the SOC of March 1, 2018 and the rating decision of March 27, 2018, the Board will remand to the AOJ for clarification of the action taken by AOJ. Such a remand relating to the limited period of June 28, 2014 to June 15, 2017 does not prevent the Board from adjudicating entitlement to higher ratings for other periods of the staged rating for limitation of right elbow flexion, or to entitlement to higher ratings for other elbow disabilities for which separate ratings have been granted (limitation of extension, impairment of supination and pronation, neuropathy, and scar). Rating Criteria, Generally Disability ratings assigned in accordance with VA's Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. A disability is identified by a diagnostic code (DC). 38 C.F.R. Part 4. Staged ratings are appropriate when the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant must be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight- bearing. 38 C.F.R. § 4.45. A VA examiner must attempt to estimate any additional loss of range of motion with flare-ups and repeated use over time based on relevant information, including competent statements of the claimant. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Extraschedular Consideration In an appellate brief of March 2021, the Veteran requested extraschedular consideration for the rating of his right elbow disability. Ordinarily, the VA Schedule will apply unless exceptional or unusual factors would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating may be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When the issue of entitlement to an extraschedular rating has been raised, the Board may issue a final decision as to entitlement to an increased schedular rating and determine whether or not referring the extraschedular rating issue to the Director of Compensation Service is warranted. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether the claimant is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If so, the second step requires the Board to determine whether the claimant's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Third, if the first two conditions are met, the case must be referred to the Director of Compensation Service to determine whether the claimant's disability picture requires the assignment of an extraschedular rating. Upon consideration of the entire record, including the Veteran's lay assertions, the Board determines that referral for extraschedular consideration is not warranted for the increased-rating issues currently an appeal concerning right elbow disability. The rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria. See Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011). When considered with the schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Functional limitations are considered under the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and they should be expressed in the schedular rating in terms of loss of range of motion. See Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). Under 38 C.F.R. § 4.59, which is a schedular consideration, there is guidance for noting, evaluating, and rating joint pain. See Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). In this case, for all the relevant periods on appeal, the lay and medical evidence, which will be covered in more detail in sections below, shows that the Veteran's service-connected right elbow disabilities have manifested by pain, limitation of motion, and impairment such as limited ability to lift, carry, and open objects. Such difficulties are not exceptional or unusual for a disability involving limited motion. Pain and weakness are contemplated as orthopedic factors in the schedular rating criteria. Activities that require movement of the elbow in flexion, extension, pronation, and supination are contemplated by the schedular rating criteria based on limited motion, to include as due to pain or other factors. 38 C.F.R. §§ 4.40, 4.45, 4.59. With respect to service-connected right ulnar neuropathy, the rating schedule for peripheral neuropathy as a whole is capable of assessing the Veteran's symptomatology, such as pain and limitation in the ability to lift objects, and the rating schedule for neurological conditions encompasses the severity of the symptoms shown and the resulting impairment. Extraschedular consideration cannot be used to undo the approximate nature that results from a statutory rating system based on average impairment of earning capacity. See Thun v. Peake, 22 Vet. App. 111, 116 (2008). The Board determines that all the symptomatology and impairment caused by the Veteran's right elbow disabilities are contemplated by the schedular rating criteria. Because the first Thun element is not satisfied, no referral for extraschedular consideration is required. See Chudy v. O'Rourke, 30 Vet. App. 34 (2018). The matter cannot be referred for extraschedular evaluation because a preponderance of the evidence is against finding that the Veteran suffers from symptoms not considered by the rating criteria. 1. Entitlement to a compensable rating prior to June 28, 2014, to a rating in excess of 20 percent from June 16, 2017 to December 22, 2020, to a rating in excess of 30 percent from December 23, 2020 to May 26, 2021, and to a rating in excess of 40 percent from May 27, 2021 for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis. The Veteran's disability has been rated under 38 C.F.R. § 4.71a, DCs 5003-5206 and 5019-5206, which pertain to limited flexion as a result of arthritis or bursitis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5003, 5019, and 5206 did not change. The Veteran is right-hand dominant. Under DC 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Under DC 5019, bursitis to be rated under the limitation of motion of the part affected. The normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal forearm pronation is from 0 to 80 degrees. Normal forearm supination is from 0 to 85 degrees. 38 C.F.R. § 4.71a. Plate I. Under DC 5206, a 0-percent rating is warranted for forearm flexion limited to 110 degrees; a 10-percent rating is warranted for forearm flexion limited to 100 degrees; a 20-percent rating is warranted when forearm flexion is limited to 90 degrees; a 30-percent rating is warranted when forearm flexion is limited to 70 degrees; and a 40-percent rating is warranted when forearm flexion is limited to 55 degrees, and a 50-percent rating is warranted for forearm flexion limited to 45 degrees. Entitlement to a compensable evaluation prior to June 28, 2014. According to a September 2009 record of Dr. D. M., right-elbow imaging showed a "fairly large spur off the tip of the olecranon." An October 2009 record of Dr. J. P. diagnosed right elbow bursa: chronic synovitis. The Veteran underwent right elbow surgery in October 2009. Imaging performed two weeks following the surgery showed no loose bony pieces, no fractures, and removal of the large olecranon osteophyte. The Veteran was noted to have a little tightness with flexion past 100 degrees and nearly full extension. "Neuro intact in the hand" was also noted. Pain, numbness, and loss of strength and mobility in the right elbow were reported by the Veteran in a February 2013 statement. The Board determines that, for the period prior to June 28, 2014, a preponderance of the evidence is against finding entitlement to a compensable rating for the Veteran's service-connected right elbow disability. Any impaired function and pain for this period, including as competently reported by the Veteran, do not approximate forearm flexion limited to 100 degrees, which would be required for a higher, 10-percent rating under DC 5206. The "tightness" noted in October 2009, only two weeks after surgery, was not pain and occurred only after 100 degrees of motion. As explained in the Remand section below, the Board will remand the issue of entitlement to a compensable rating for the period from June 28, 2014 to June 15, 2017. Entitlement to a rating in excess of 20 percent from June 6, 2017 to December 22, 2020. In June 2017, the Veteran underwent a VA examination for elbow and forearm conditions. He reported flare-ups without specifying their frequency or duration. Upon examination, the initial range of motion was limited to 85 degrees for flexion. There was evidence of pain with weight-bearing. The examiner did not estimate any additional loss of range of motion during a flare-up or with repeated use over time. There was no muscle atrophy. No response was given as to ankylosis. The report notes that the observed ranges of motion were inconsistent with the measured ranges of motion during formal examination. On this basis, the examiner considered the measured ranges of motion and related examination findings to be unreliable indicators of pathology or disability and unreliable for rating purposes. An August 2019 treatment record of Dr. B. D. notes normal flexion and extension of the right elbow. In November 2019, the Veteran underwent a VA examination for elbow and forearm conditions. He reported daily pain and soreness in the elbow and into the forearm and stated, "I don't use my arm due to pain." Upon examination, the initial range of motion of the right elbow was limited to 85 degrees for flexion. There was evidence of pain with weight-bearing. It was determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran reported no flare- ups. There was no muscle atrophy or ankylosis. For the relevant period, the Board determines that a preponderance of the evidence is against finding limitation of flexion approximating 70 degrees, which would be required for entitlement to a higher, 30-percent rating under DC 5206. Although the Veteran is competent to report that he did not use his arm due to pain, more probative weight is given to the findings of flexion limited to 85 degrees upon examination in November 2019 and no limitation of flexion by a private treatment record of August 2019. Entitlement to a rating in excess of 30 percent from December 23, 2020 to May 26, 2021. In December 2020, the Veteran underwent a VA examination for elbow and forearm conditions. He reported "random" right elbow pain that could occur with activity or at rest. The achy pain lasted from a few hours to a day. He reported having flare-ups 5 to 10 times per day, which were precipitated by picking up objects or sustaining a grip. Elbow pain reportedly affected his dressing and caused difficulty with household chores, yard work, and anything physical. Upon examination, the initial range of motion of the right elbow was limited to 85 degrees for flexion. After three repetitions, flexion was limited to 75 degrees. There was evidence of pain with weight-bearing. It was estimated that, with repeated use over time, flexion would be limited to 65 degrees. As for range of motion during a flare-up, the estimate was 60 degrees for flexion. There was no muscle atrophy and no ankylosis. For the relevant period, the Board determines that a preponderance of the evidence is against finding limitation of flexion approximating 55 degrees, which would be required for entitlement to a higher, 40-percent evaluation under DC 5206. At its most severe, flexion was found to be limited to 60 degrees during a flare-up. Entitlement to a rating in excess of 40 percent from May 27, 2021. In May 2021, the Veteran underwent a VA examination for elbow and forearm conditions. He reported limited extension, pronation, and supination. He said that he was limited in his ability to lift, carry, or open anything with his right arm. He reportedly was not able to write with his right hand and arm. The Veteran said that he was not able to bend completely at the right able or to lift, carry, or move anything with his right arm. There was notation of daily flare-ups that lasted all day and were characterized by moderate to severe sudden numbness, and burning and tingling in pattern distribution of ulnar, median, and radial nerves in the right elbow and forearm affecting the right hand, right elbow, and right shoulder. The Veteran said that he "wakes up in middle of night in pain and throughout the day." Upon examination, the initial range of motion was limited to 75 degrees for flexion. The passive range of motion was the same as the active ROM. After three repetitions, the range of motion was limited to 60 degrees for flexion. The latter percentage was also the estimate for the limited range of motion with repeated use over time. It was estimated that, during a flare-up, the range of motion would be limited to 50 degrees for flexion. There was no muscle atrophy and no ankylosis. For the relevant period, the Board determines that a preponderance of the evidence is against finding limitation of flexion approximating 45 degrees, which would be required for entitlement to a higher, 50-percent evaluation under DC 5206. At its most severe, flexion was found to be limited to 50 degrees during a flare-up. 2. Entitlement to a rating in excess of 30 percent for right ulnar neuropathy from December 10, 2015. A rating decision of January 2021 granted service connection for right elbow ulnar neuropathy. A 30-percent evaluation, effective December 10, 2015, was established pursuant to DC 8516, which provides for: a 10-percent rating for mild incomplete paralysis; a 30-percent rating for moderate incomplete paralysis; a 40- percent rating for severe incomplete paralysis; and a 60-percent rating for complete paralysis with "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Under 38 C.F.R. § 4.124a, "incomplete paralysis" means a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DC 8516. In a filing of November 2013, the Veteran stated that he had had pain and numbness in his right elbow over the years. In September 2015, a VA examination for the elbows noted no neurological impairment associated with the right elbow. A December 10, 2015 record of Dr. B. D. notes the Veteran's complaint of right elbow pain with numbness and tingling. He described the pain as sharp, stabbing, and radiating into his hand and fourth and fifth fingers. He did not report diminished strength in the right upper extremity. The impression was ulnar nerve entrapment at right elbow. On the basis of an electrodiagnostic examination of January 2016, the diagnoses relating to the right elbow were moderate, chronic, ulnar, sensorimotor neuropathy with no evidence of active denervation, and moderate, medial, antebrachia, cutaneous neuropathy. In a filing of December 2016, the Veteran stated that, following his 2009 surgery, he had had increasing pain, numbness, and tingling in his right elbow, arm, hand, and fingers. In June 2017, the Veteran underwent a VA examination for the elbows. The Veteran described a prickly feeling in the 4th and 5th fingers. The examiner noted mild tenderness over the olecranon due the service-connected condition. An April 2018 record of Dr. B. D. notes the Veteran's complaint of occasional numbness/tingling in the right hand. Inspection of the right elbow showed tenderness upon palpation over the distal biceps tendon and the proximal interosseous membrane. An MRI scan showed neurovascular structures within normal limits, no significant muscular atrophy, and no signal alteration to suggest denervation-type injury. The Veteran underwent a VA examination for the elbows in November 2019. He again reported tingling and numbness in the elbow, with pain radiation down to his fingertips. There was "pricking pain" into the fingers. He rated his daily pain as an 8-10 on the pain scale and reported that he was "unable to use his right hand." The Veteran underwent a VA examination for the elbows in December 2020. He reported numbness and tingling of the right hand, with the pain being a 10 on the pain scale at its worst. In May 2021, he again underwent a VA examination for elbow and forearm conditions. He reported having daily flare-ups that lasted all day and were characterized by moderate to severe sudden numbness, burning and tingling in pattern distribution of ulnar, median and radial nerve in right elbow and forearm affecting the right hand, right elbow, and right shoulder. He reported that he "wakes up in middle of night in pain and throughout the day. The examiner noted right ulnar neuropathy/median neuropathy affecting fingers and motor control. In May 2021, the Veteran also underwent a VA examination for peripheral nerves conditions. While "moderate," incomplete paralysis of the right ulnar nerve was diagnosed, the Functional Impact section of the report characterized the ulnar neuropathy as "severe." The Board determines that the criteria of a higher, 40-percent rating are met from December 10, 2015, based on record evidence of severe, incomplete paralysis of the right ulnar nerve. The Veteran is competent and credible in his report of severe, radiating pain (a 10 on the pain scale), and the May 2021 VA examiner found the Veteran's right ulnar neuropathy to be severe from a functional standpoint. Any reasonable doubt as to whether the neuropathy was severe, and not merely moderate, as far back as October 2015 is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Earlier evidence, namely the September 2015 VA examination report for the elbows, noted no neurological impairment associated with the right elbow. A preponderance of the evidence is against finding complete paralysis of the right ulnar nerve, which would be required for a still higher, 60-percent rating under DC 8516. The April 2018 records of Dr. B. D. indicate that the Veteran's neurological conditions include the ulnar nerve, median nerve, carpal tunnel syndrome, and interosseous syndrome. The January 2021 VA examination lists treatment for neurological conditions relating to the median nerve, ulnar nerve, and medial antebrachial cutaneous nerve. The examiner also noted that the Veteran complaint that multiple parts of the hand had neurological symptoms, to include the entire hand, simultaneously, during certain periods. The May 2021 VA examination report diagnosed moderate right elbow ulnar neuropathy, moderate-severe right arm median neuropathy, moderate right carpal tunnel, and distal biceps tendonitis. In the section of the report relating to the affected nerves and the severity evaluation for upper extremity nerves and radicular groups, the following nerve abnormalities were notated: moderate, incomplete paralysis of the right radial nerve; severe, incomplete paralysis of the right median nerve; moderate, incomplete paralysis of the right ulnar nerve; moderate, incomplete paralysis of the right musculocutaneous nerve; and moderate, incomplete paralysis of the right circumflex nerve. The upper, middle, and lower radicular groups were normal. The evidence thus shows that the Veteran has incomplete paralysis of the right radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, and circumflex nerve. These nerves, if rated independently, can be evaluated under DCs 8514, 8515, 8516, 8517, and 8518, respectively. However, under 38 C.F.R. § 4.124a, combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. Note, DC 8719. In addition, the same disability or the same or overlapping symptomatology may not be evaluated under different diagnostic codes. 38 C.F.R. § 4.14. see also Esteban v. Brown, 6 Vet. App. 259 (1994). Assigning separate ratings under DCs 8514 8518 would constitute such prohibited "pyramiding," because injuries to those nerves all contribute to the same and overlapping functional impairment of the upper extremity consisting of pain, paresthesias and/or dysesthesias, numbness or sensory loss, etc. 3. Entitlement to a rating in excess of 20 percent from December 23, 2020, and in excess of 30 percent from May 27, 2021, for limitation of pronation of the right elbow. Under DC 5213, limitation of supination to 30 degrees or less warrants a 10- percent rating. Limitation of pronation where motion is lost beyond the last quarter arc, where the hand does not approach full pronation, warrants a 20-percent rating. Motion lost beyond the middle arc in the major extremity warrants a 30- percent rating. 38 C.F.R. § 4.71a, DC 5213. Normal forearm pronation is from 0 to 80 degrees, and normal forearm supination is from 0 to 85 degrees. 38 C.F.R. § 4.71a. Plate I. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5213 did not change. Pain, numbness, and loss of strength and mobility in the right elbow were reported by the Veteran in a February 2013 statement. In September 2015, he underwent a VA examination for elbow and forearm conditions. The initial range of motion of the right elbow was normal, including after three repetitions. No pain was noted on examination, and there was no evidence of pain with weight-bearing. It was determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran reported no flare- ups. There was no muscle atrophy and no ankylosis. The examiner noted that some behaviors/responses during the examination that rose to a "malingering-like level" because they varied markedly from what is expected from an individual having the Veteran's disability. A medical record of December 2015 notes the Veteran's report of chronic pain and tenderness of the right elbow. In June 2017, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported flare-ups, with no specification of the frequency or duration. Upon examination, the initial range of motion was limited to 85 degrees for forearm supination, and 80 degrees for forearm pronation, including after three repetitions. There was evidence of pain with weight-bearing. The examiner did not estimate any additional loss of range of motion during a flare-up or with repeated use over time. There was no muscle atrophy. No response was made to the form question concerning ankylosis. The VA examiner remarked in the report that the observed ranges of motion were inconsistent with the measured ranges of motion during the formal examination. On this basis, the examiner considered the measured ranges of motion and related examination findings to be unreliable indicators of pathology or disability and, therefore, unreliable for rating purposes. In November 2019, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported daily pain and soreness in the elbow and into the forearm. He stated, "I don't use my arm due to pain." Upon examination, the initial range of motion of the right elbow was limited to 85 degrees for forearm supination and 80 degrees for forearm pronation, including after three repetitions. There was evidence of pain with weight-bearing. It was determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran reported no flare- ups. There was no muscle atrophy or ankylosis. In December 2020, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported "random" right elbow pain that could occur with activity or at rest. The pain, described as achy, could last from a few hours to an entire day. He reported having flare-ups 5 to 10 times per day, which were precipitated by picking up objects and sustaining a grip. The disability reportedly affected his dressing and caused difficulty with household chores, yard work, and anything physical. Upon examination, the initial range of motion of the right elbow was limited to 85 degrees for forearm supination and 80 degrees for forearm pronation. After three repetitions, forearm supination was limited to 80 degrees, and forearm pronation was limited to 75 degrees. There was evidence of pain with weight-bearing. It was estimated that, with repeated use over time, forearm supination would be limited to 70 degrees, and forearm pronation would be limited to 65 degrees. As for range of motion during a flare-up, the estimates were 60 degrees for forearm supination and 50 degrees for forearm pronation. There was no muscle atrophy and no ankylosis. In May 2021, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported limited extension, pronation, and supination. He said that he was limited in his ability to lift, carry, or open anything with his right arm. He reportedly was not able to write with his right hand and arm. The Veteran said that he was no able to bend completely at the right able or to lift, carry, or move anything with his right arm. He reported having daily flare-ups that lasted all day and were characterized by moderate to severe sudden numbness, burning and tingling in pattern distribution of ulnar, median and radial nerve in right elbow and forearm affecting the right hand, right elbow, and right shoulder. He reported that he "wakes up in middle of night in pain and throughout the day." Upon examination, the initial range of motion was limited to 35 degrees for forearm supination and 45 degrees for forearm pronation. The passive range of motion was the same as the active ROM. After three repetitions, the range of motion was limited to 20 degrees for forearm supination and 35 degrees for forearm pronation. The latter values were also the estimated values for the limited ranges of motion with repeated use over time. It was estimated that, during a flare- up, the range of motion would be limited to 15 degrees for forearm supination and 40 degrees for forearm pronation. There was no muscle atrophy and no ankylosis. For the period from December 23, 2020 to May 26, 2021, the Board determines that a preponderance of the evidence is against finding limitation of pronation approximating motion lost beyond middle of arc, which would be required for a higher, 30-percent rating under DC 5213. As a layperson, the Veteran is competent to report his experienced elbow symptoms. At its most severe, forearm pronation was estimated to be limited to 50 degrees during a flare-up. For the period from May 27, 2021, the Board determines that a preponderance of the evidence is against finding loss of forearm pronation (bone fusion), with the hand fixed in supination or hyperpronation, which would be required for higher, 40-percent rating under DC 5213. There has been no ankylosis of the right elbow. Furthermore, a preponderance of the evidence is against finding entitlement to a separate rating for limitation of pronation or supination prior to December 23, 2020. The evidence prior to the December 2020 VA examination does not indicate limitation of pronation characterized by motion lost beyond the last quarter arc, where the hand does not approach full pronation, which would be required for a 20-percent evaluation under DC 5213, or supination limited to 30 degrees or less, which would be required for a 10-percent evaluation under DC 5213. 4. Entitlement to a compensable rating for limitation of extension of the right elbow from December 23, 2020. Under DC 5207, for the major extremity, forearm extension limited to 45 or 60 degrees warrants a 10-percent rating; extension to 75 degrees warrants a 20-percent rating; extension to 90 degrees warrants a 30-percent rating; extension to 100 degrees warrants a 40-percent rating; and extension to 110 degrees warrants a 50- percent rating. 38 C.F.R. § 4.71a, DC 5207. The normal range of motion of the elbow is from 0 degrees for extension. 38 C.F.R. § 4.71a. Plate I. The Veteran's disability is currently rated under 38 C.F.R. § 4.71a., Diagnostic Code 5207, relating to limitation of extension of the forearm. Limitation of forearm extension to 45 degrees or to 60 degrees warrants a 10-percent rating for a minor arm. Limitation of forearm extension to 75 degrees or to 90 degrees warrants a 20-percent rating. Limitation to 100 degrees warrants a 30-percent rating. Limitation to 110 degrees warrants a 40-percent rating. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5207 was not changed. Pain, numbness, and loss of strength and mobility in the right elbow were reported by the Veteran in a February 2013 statement. In September 2015, the Veteran underwent a VA examination for elbow and forearm conditions. The initial range of motion of the right elbow was normal, including after three repetitions. No pain was noted on examination, and there was no evidence of pain with weight-bearing. It was determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran reported no flare- ups. There was no muscle atrophy and no ankylosis. The examiner noted that some behaviors/responses during the examination that rose to a "malingering-like level" because they varied markedly from what is expected from an individual having the Veteran's disability. A medical record of December 2015 notes the Veteran's report of chronic pain and tenderness of the right elbow. In June 2017, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported flare-ups, with no specification of the frequency or duration. Upon examination, the initial range of motion was limited to 0 degrees for extension, including after three repetitions. There was evidence of pain with weight-bearing. The examiner did not estimate any additional loss of range of motion during a flare-up or with repeated use over time. There was no muscle atrophy. No response was made to the form question concerning ankylosis. The June 2017 VA examiner remarked in the report that the observed ranges of motion were inconsistent with the measured ranges of motion during the formal examination. On this basis, the examiner considered the measured ranges of motion and related examination findings to be unreliable indicators of pathology or disability and, therefore, unreliable for rating purposes. An August 2019 treatment record of Dr. B. D. notes normal extension of the right elbow. In November 2019, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported daily pain and soreness in the elbow and into the forearm. He stated, "I don't use my arm due to pain." Upon examination, the initial range of motion of the right elbow was limited to 0 degrees for extension, including after three repetitions. There was evidence of pain with weight-bearing. It was determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran reported no flare- ups. There was no muscle atrophy and no ankylosis. In December 2020, the Veteran again underwent a VA examination for elbow and forearm conditions. He reported random right elbow pain that can occur with activity or at rest. The pain, described as achy, reportedly could last from a few hours to a full day. He reported having flare-ups 5 to 10 times per day, which were precipitated by picking up objects and sustaining a grip. The disability reportedly affected his dressing and caused difficulty with household chores, yard work, and anything physical. Upon examination, the initial range of motion of the right elbow was limited to 0 degrees for extension. After three repetitions, extension was limited to 10 degrees. There was evidence of pain with weight-bearing. It was estimated that, with repeated use over time, extension would be limited to 15 degrees. As for range of motion during a flare-up, the estimate was 20 degrees for extension. There was no muscle atrophy and no ankylosis. In May 2021, the Veteran underwent a VA examination for elbow and forearm conditions. He reported limited extension, pronation, and supination. He said that he was limited in his ability to lift, carry, or open anything with his right arm. He reportedly was not able to write with his right hand and arm. The Veteran said that he was not able to bend completely at the right able or to lift, carry, or move anything with his right arm. He reported having daily flare-ups that lasted all day and were characterized by moderate to severe sudden numbness, burning and tingling in pattern distribution of ulnar, median and radial nerve in right elbow and forearm affecting the right hand, right elbow, and right shoulder. He said that he "wakes up in middle of night in pain and throughout the day." Upon examination, the initial range of motion was limited to 10 degrees for extension. The passive range of motion was the same as the active ROM. After three repetitions, the range of motion was 40 degrees for extension. The latter value was also the estimated limited range of motion for extension with repeated use over time. It was estimated that, during a flare-up, the range of motion would be limited to 20 degrees for extension. There was no muscle atrophy and no ankylosis. The Board determines that, from December 23, 2020, a preponderance of the evidence is against finding limitation of extension approximating 45 degrees. The Veteran, as a layperson, is competent to report his experienced elbow symptoms. At its most severe, extension of the right elbow was limited to 40 degrees with repeated use over time. 5. Entitlement to a compensable rating for a right elbow scar from July 20, 2012. A rating decision of January 2021 granted service connection for scar, right elbow, status-post spur and bursa excision. A noncompensable evaluation, effective July 20, 2012, was established under Diagnostic Code. 38 C.F.R. § 4.118. An appellate brief of August 2021 does not cite evidence in support of a compensable rating for the right elbow scar. Generally, scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118. Revised provisions for evaluating scars were enacted effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018). The version of each regulation that is more favorable to the Veteran will apply to the extent permitted by the effective date of August 13, 2018. 38 U.S.C. § 5110. Under the prior version of DC 7801, scars that are deep, nonlinear, not located on the head, face, or neck, and cover an area or areas of at least 6 square inches (39 square centimeters (sq. cm.)) but less than 12 square inches (77 sq. cm.) warrant a 10-percent rating. The August 2018 revision of DC 7801 changed the requirement that the scar be "deep and nonlinear" to "associated with underlying soft tissue damage." The only other revision to DC 7801 was to the notes. Note (1) now defines six zones of the body as each extremity, anterior trunk, and posterior trunk; and states that the midaxillary line divides the anterior trunk from the posterior trunk. Note (2) states that a separate evaluation may be assigned for each affected zone of the body under this DC if there are multiple scars, or a single scar, affecting multiple zones of the body. Separate evaluations should be combined under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under the DC. 83 Fed. Reg. at 32598. A September 2015 VA examination for the elbows noted the Veteran's 2009 elbow surgery but found no scar. Upon VA examination in June 2017 and November 2019, a 3 cm x 0.2 cm scar was noted. It was not painful or unstable, did not have a total area equal to, or greater than, 39 square cm (6 square inches), and was not located on the head, face, or neck. The December 2020 VA examination for the elbows measured the right elbow scar as 4 cm x 0.2 cm. It was found to be not painful or unstable. The May 2021 VA examination for the elbows measured the scar as 1.5 cm x 0.2 cm. A May 2021 VA examination for scars identified one scar of the right posterior elbow measuring 1.5 cm x 0.2 cm. It was not painful or unstable. The scar did not limit function, and there were no other pertinent physical findings, complications, conditions, signs and/symptoms associated with the scar. The Board has considered whether a higher disability rating may be awarded under any other diagnostic code. Because the right elbow scar is not on the head, face, or neck, and is not deep and nonlinear, a higher initial rating under Diagnostic Codes 7800, 7801, 7802 is not available. Furthermore, because the scar is not painful or unstable, a higher initial rating cannot be assigned under DC 7804, pursuant to which one or two scars that are unstable or painful warrant a 10- percent rating. DC 7804 was not affected by the regulatory revisions that took effect in August 2018. The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His belief that his scar disability is worse than the severity indicated by the current rating is outweighed by the competent and credible medical examinations that evaluated the extent of impairment based on detailed examination findings coupled with statements made by the Veteran. The VA examiners have the training and expertise to determine the type and degree of the impairment associated with the Veteran's surgery scar, and greater evidentiary weight is accorded to the examination findings. The level of training, education, and experience of an examiner can be a factor in assigning weight to a report. See Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). Both the former and revised criteria of DC 7805 provide that scars should be evaluated pursuant to DCs 7800 through 7804, and any disabling effect(s) not considered in those rating criteria should be evaluated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. In this case, the Veteran's scar does not result in any other disabling manifestation that would entitle him to a higher rating under another diagnostic code not contemplated by the diagnostic codes pertaining to scars. A compensable, initial disability rating is not warranted under 38 C.F.R. § 4.118m DC 7805. The Board determines that, for the entire rating period on appeal, a preponderance of the evidence is against finding that the Veteran's right elbow scar is unstable or painful or has any disabling effects. The scar is linear and, giving the Veteran the benefit of reasonable doubt, measures no more than 4 cm x 0.2 cm. REASONS FOR REMAND 6. Entitlement to a compensable rating from June 28, 2014 to June 15, 2017 for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, medial epicondylitis, and osteoarthritis (previously rated as right elbow contusion with chronic olecranon bursitis/spur, status- post spur and bursa excision Dx 5019-5206) A March 27, 2018 rating decision increased the rating for right elbow limitation of flexion (DC 5019-5206) from 0 percent to 20 percent, effective June 16, 2017. However, an earlier statement of the case (SOC) issued on March 1, 2018 decided that the evaluation of that disability was to be "increased to 20 percent disabling effective June 28, 2014" (emphasis added). In light of a discrepancy as to the effective date of the increased evaluation as stated variously in the March 2018 SOC and the March 2018 rating decision, the Board will remand to the AOJ for clarification of the action that was taken by AOJ. The Board is required to remand a case to the AOJ, specifying the action to be taken, whenever further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision. 38 C.F.R. § 19.9(a). The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding, identified private medical records relating to the remanded issue and any outstanding VA treatment records. All efforts to obtain such records must be documented in the record. 2. Issue a supplemental statement of the case that clarifies the effective date of the AOJ's grant of a rating increase, from 0 percent to 20 percent, for right elbow contusion with chronic olecranon bursitis/spur, status-post spur and bursa excision, with recognition that the effective date of the increase was given as June 28, 2014 by an SOC of March 1, 2018 and as June 16, 2017 by a rating decision of March 27, 2018. 3. If the benefit sought is not granted to the Veteran's satisfaction, provide the Veteran with an opportunity to respond and, if necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.