Citation Nr: 21009782 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-19 763 DATE: February 23, 2021 ORDER Entitlement to service connection for a right-hand disability, to include as due to service-connected disease or injury is denied. Entitlement to an evaluation in excess of 10 percent disabling for right elbow arthritis prior to July 13, 2020 is denied. Entitlement to an evaluation of 20 percent disabling and no higher, for right elbow arthritis, limitation of flexion, since July 13, 2020 is granted. Prior to August 1, 2016, entitlement to a separate evaluation for right elbow arthritis, limitation of pronation or supination, is denied. Entitlement to a separate evaluation in excess of 10 percent for right elbow arthritis, limitation of supination, from August 1, 2016 through July 12, 2020, is denied. Entitlement to an evaluation of 30 percent, and no higher, for right elbow arthritis, limitation of pronation, since July 13, 2020, is granted. REMANDED Entitlement to service connection for radiculopathy of the left lower extremity, to include as due to service-connected disease or injury, to include consideration of revision of an October 4, 2004 rating decision finding that the Veteran’s lumbosacral spine discomfort did not include lumbosacral degenerative disc disease, on the basis of CUE pursuant to 38 C.F.R. 3.105, is remanded. Entitlement to service connection for left knee disability, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for left ankle disability, to include as due to service-connected disease or injury, is remanded. Entitlement to service connection for left foot disability, to include as due to service-connected disease or injury, is remanded. Entitlement to service connection for a right arm disability, to include as due to service-connected disease or injury, is remanded. FINDINGS OF FACT 1. The Veteran’s right-hand disability is already service connected as right upper extremity radiculopathy; the Veteran does not have a separately compensable right-hand disability. 2. Prior to July 13, 2020, the Veteran’s right elbow arthritis is manifested by painful motion but does not evidence limited extension or limited flexion beyond 140 degrees. 3. Since July 13, 2020, the Veteran’s right elbow arthritis is manifested by flexion limited to 95 degrees. 4. Prior to August 1, 2016, the Veteran’s right elbow arthritis is not manifested by painful motion upon supination or pronation. 5. Between August 1, 2016 and July 12, 2020, the Veteran’s right elbow arthritis is manifested by painful motion on supination. 6. Since July 13, 2020, the Veteran’s right elbow arthritis is manifested by limitation of pronation, motion lost beyond middle of arc. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right-hand disability, to include as due to service-connected disease or injury, are not been met. 38 U.S.C. §§ 1131, 1110, 38 C.F.R §§ 3.303, 4.124A, Diagnostic Code 8510. 2. Prior to July 13, 2020, the criteria for entitlement to an evaluation in excess of 10 percent for right elbow arthritis are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5010-5207. 3. Since July 13, 2020, the criteria for entitlement to an evaluation of 20 percent disabling, but no higher, for right elbow arthritis, limitation of flexion, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5010-5206. 4. Prior to August 1, 2016, the criteria for entitlement to a separate evaluation for right elbow arthritis, limitation of pronation or supination, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5213. 5. Between August 1, 2016 and July 12, 2020, the criteria for entitlement to a separate evaluation for right elbow arthritis, limitation of supination, in excess of 10 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5213. 6. Since July 13, 2020, the criteria for entitlement to a separate evaluation of 30 percent disability, but no higher, for right elbow arthritis, limitation of pronation, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from May 1977 to December 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2014 and May 2015 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was previously before the Board in August 2018, at which time all of the issues currently on appeal were denied. The Veteran appeal this denial to the Court of Appeals for Veterans Claims (Court). In July 2019, based on a Joint Motion for Partial Remand (JMPR), the Court vacated the denials of service connection for radiculopathy of the left lower extremity, a left foot disability, a left ankle disability, a left knee disability, a right arm disability, a right hand disability, and an evaluation in excess of 10 percent for right elbow arthritis, and remanded the issues for further consideration. Specifically, Court found that the Board erred when it determined that the Veteran did not have any current disabilities relevant to his service connection claims because there was no “pathology” for his claimed symptoms. It was noted that a “disability” for purposes of service connection is not something that must be diagnosed, but rather, a disability causes “functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018). Accordingly, on remand, the Board was instructed to adjudicate and develop the service connection claims in a manner consistent with Saunders. Regarding the increased rating claim, the parties agreed that the August 2016 medical opinion was inadequate. The JMPR determined that the 2016 examiner failed to provide an estimate of the Veteran’s range-of-motion loss during a flare-up or explain why such could not be provided, and remand was warranted in order for an additional examination to be obtained that is complaint with Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) and Sharp v. Shulkin, 29 Vet. App. 26, 30 (2017). In January 2020, the Board remanded the claims for further development consistent with the JMPR. In July and September 2020, examinations and corresponding medical opinions were obtained. The claim is once again before the Board. Substantial compliance with the Board’s prior remand orders is demonstrated. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in September 2012 and November 2013. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Furthermore, although additional relevant VA treatment records were associated with the Veteran’s records following issuance of the September 2020 supplemental statement of the case (SSOC), the Veteran’s representative waived the Veteran’s right to have the case remanded to the AOJ for review. As discussed below, the medical opinions corresponding with the July 2020 VA peripheral nerve condition examination and VA hand and finger condition examination were inadequate. However, the September 2020 addendum opinion is adequate and clarifies the results of the examinations. Accordingly, appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Right Hand Disability The Veteran seeks service connection for a right-hand disability, but the Board finds that service connection has already been granted for right upper extremity radiculopathy impacting the function of the right hand, and the Veteran does not have another right-hand disability upon which to base a grant of service connection. In March 2014, the Veteran was afforded a VA cervical spine examination. In addition to being asked to opine as to whether the Veteran has a current neck condition related to service or any service connected disabilities, the examiner was asked to address whether there were any secondary conditions of the right arm and hand, or whether there was any radiculopathy of the right arm and hand. Regarding the right arm and hand question, the examiner stated that the Veteran did not have any right arm or hand radiculopathy or other conditions secondary to his neck condition. The examiner referred to the results of a March 2014 EMG, showing that there was no evidence of active radiculopathy affecting the right upper extremity. The Veteran was provided a VA hand and finger examination in July 2020, per the JMPR instructions. In this examination, the Veteran was diagnosed with “hand pain” since 1991. It was noted that the claimed right-hand disability is secondary to peripheral neuropathy secondary to cervical spine injury, and that the Veteran’s EMG documented had previously documented that there was no neuropathy or radiculopathy found, but that an examination addressing peripheral neuropathy would be completed and that this would be addressed. During the July 2020 peripheral neuropathy examination, the Veteran was diagnosed with neuropathies of the right upper extremity. The examination noted that the Veteran had radiculopathy down both legs, greater in the left than the right. However, a conflicting opinion was provided. When asked to address whether the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner concluded that no chronic diagnosis was made for peripheral neuropathy as documented by the EMG completed on March 14, 2014. The examiner further concluded that the objective examination was normal, and symptoms were found to be subjective only. The examiner stated that a nexus had not been established. An opinion specifically addressing the hand was also obtained in July 2020, in which the examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, stating that during service, the left hand and finger condition, was acute only. The examiner further concluded that there was no evidence of chronicity of care and symptoms were subjective only. The examiner concluded that a nexus had not been established. The examiner further noted that the claimed disability increased after surgical intervention status post cervical disc fusion. Notably, both the peripheral neuropathy and hand opinions from July 2020 are inadequate. The peripheral neuropathy opinion is contradictory with the results of the examination. The hand opinion is also contradictory with the examination, indicating that there is no chronicity of symptoms, in spite of the diagnosis of hand pain since 1991. Furthermore, the examination refers to the left rather than the right hand. However, in September 2020, an addendum medical opinion addressing the Veteran’s right hand was obtained. Here, the examiner clarified that the Veteran does not have a current diagnosis of an orthopedic hand injury. Rather, the veteran's current symptoms of the right hand are related to the non-service- connected cervical radiculopathy that was diagnosed in 2012. Subsequently, in a November 2020 rating decision, the Veteran was granted service connection for cervical strain and right upper extremity radiculopathy as secondary to the service-connected disability of cervical strain. Although the Veteran was found to have right hand pain, beginning in 1991, in his July 2020 VA examination, the examiner subsequently determined in September 2020 that the Veteran does not have an orthopedic hand condition, or any symptoms aside from the radiculopathy for which he has already been service-connected. As such, service connection for any right-hand disability aside from right upper extremity radiculopathy is not warranted. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Disabilities of the elbow and forearm are rated, generally, under Codes 5205 to 5213. The Veteran's right elbow is his dominant arm. Therefore, the Board will discuss the ratings pertaining to the "major" elbow and forearm. 38 C.F.R. § 4.71a. The Veteran is currently rated 10 percent disabled by right elbow arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5207, which pertains to arthritis and limitation of extension of the elbow, respectively. 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. Since August 1, 2016, he has also been rated 10 percent disabled by right elbow arthritis, limitation of supination, Diagnostic Code 5213. The Veteran has alleged that his condition has worsened over time and argues that his assigned rating should reflect a greater degree of impairment. Prior to February 7, 2021, Diagnostic Code 5010 assigned evaluations for arthritis, due to trauma, substantiated by X-ray findings, and provided that the condition was rated as arthritis, degenerative. The rating criteria for degenerative arthritis provided that when the limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent was applicable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent evaluation was assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Since February 7, 2021, Diagnostic Code 5010 is post-traumatic arthritis, rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Diagnostic Code 5207 applies where there is limitation of extension of the forearm. A 10 percent rating is warranted for extension limited to 45 degrees (minor or major arm). A 10 percent rating is warranted for extension limited to 60 degrees (minor or major arm). A 20 percent rating is warranted for extension limited to 75 degrees (minor or major arm). A 30 percent rating is warranted for extension limited to 90 degrees (major arm). A 40 percent rating is warranted for extension limited to 100 degrees (major arm). A 50 percent rating is warranted for extension limited to 110 degrees (major arm). Under the facts of this case, the Board concludes that Codes 5205 (ankylosis), 5208 (forearm, flexion limited to 100 degrees and extension to 45 degrees) 5209 (other impairment of the flail joint of the elbow), 5210 (nonunion of radius and ulna with flail false joint), 5211 (impairment of the ulna), 5212 (impairment of the radius) are not applicable, as there is no evidence of any of these enumerated conditions. Diagnostic Code 5206 applies where there is limitation of flexion of the forearm. A noncompensable rating is warranted for flexion limited to 110 degrees. A 10 percent rating is warranted for flexion limited to 100 degrees. A 20 percent rating is warranted for flexion limited to 90 degrees (minor or major arm). A 30 percent rating is warranted for flexion limited to 70 degrees (major arm). A 40 percent rating is warranted for flexion limited to 55 degrees (major arm). A 50 percent rating is warranted for flexion limited to 45 degrees (major arm). The Board finds that since July 13, 2020, the Veteran would be more appropriately rated under Diagnostic Code 5010-5206 that 5010-5207, which will be discussed in greater detail below. Under Diagnostic Code 5213, a disability rating of 10 percent is assigned for limitation of supination of the dominant elbow to 30 degrees or less, and a disability rating of 20 percent is assigned for limitation of pronation of the dominant forearm such that motion is lost beyond the last quarter of arc or the hand does not approach full pronation. A disability rating of 30 percent is assigned for limitation of pronation of the dominant forearm such that motion is lost beyond the middle of the arc. The criteria under this Diagnostic Code also provides for disability ratings based on loss of bone fusion. The medical evidence of record does not establish a loss of bone fusion, and, therefore, this does not provide an adequate basis for an increased disability rating; and the Board shall not consider it any further. 38 C.F.R. § 4.71a, Diagnostic Code 5213. As noted above, in an August 2016 rating decision, the Veteran was separately awarded service connection under Diagnostic Code 5213, for supination, evaluated at 10 percent disabling effective August 1, 2016. Such was awarded under 38 C.F.R. § 4.59, based on painful motion of the forearm. This was identified as a partial grant of the benefits sought. Accordingly, consideration under Diagnostic Code 5213 is warranted. The Veteran was afforded a VA elbow and forearm examination in May 2015. The Veteran reported elbow pain, stiffness, and pain with lifting objects and extending. He did not report any flare-ups. Regarding reported functional loss or impairment, the Veteran stated that he gets a burning sensation with continual use throughout the day and that pain becomes pronounced. Upon range of motion (ROM) testing, all results were normal, with flexion 0 to 145 degrees, extension 145 to 0 degrees, forearm supination 0 to 85 degrees, and forearm pronation 0 to 80 degrees. No pain was noted on testing. There was no pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional functional loss or loss of motions was identified. The Veteran was not examined immediately after repetitive use over time, but the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. No pain, weakness, fatigability or incoordination were found to significantly limit functional ability with repeated use over a period of time. Muscle strength was found normal without reduction or muscle atrophy. No flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation was found. The Veteran did not report use of assistive devices. The Veteran was afforded an additional VA elbow and forearm examination in August 2016. Although he reported no change in right elbow symptoms, he now reported flare-ups which occurred 4 times per month and that he experienced pain when working from home on his computer. He did not report functional loss or functional impairment. ROM testing revealed flexion 0 to 140 degrees, extension 140 to 0 degrees, forearm supination 0 to 80 degrees, and forearm pronation 0 to 80 degrees. Although pain was noted on examination, it did not result in or cause functional loss. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation as well as crepitus. The Veteran was able to perform repetitive-use testing with 3 repetitions with no additional loss of motion. The examination was not conducted during a flare-up, and the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. However, it was determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The examiner made a notation on the examination that because the patient was not in a flare, it was not feasible to determine a loss of function at that time. No reduction in muscle strength or muscle atrophy was noted. The Veteran was not identified as having flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. An x-ray report revealed mild medial degenerative changes and no acute displaced fracture or dislocation. As mentioned above, the Court determined that an additional examination was necessary in order to address Mitchell and Sharp, which were not adequately considered in the August 2016 examination. Accordingly, the Veteran was afforded a VA elbow and forearm examination in July 2020. The Veteran described his current symptoms as pain, lack of ROM, and stiffness. He reported flare-ups, describing them as increased pain and stiffness with decreased ROM, and stated that they occurred 2 to 3 times a week, with moderate severity, lasting 1 to 2 days at a time. ROM testing revealed flexion 0 to 95 degrees, extension 95 to 0 degrees, forearm supination 0 to 80 degrees, and forearm pronation 0 to 30 degrees. Pain was noted on flexion. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was found. Additionally, there was no evidence of pain with weightbearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time, but the examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner identified pain and weakness as significantly limiting functional ability with repeated use over time, describing ROM as flexion 0 to 95 degrees, extension 95 to 0 degrees, forearm supination 0 to 80 degrees, and forearm pronation 0 to 30 degrees. The examination was also not conducted during a flare-up but found to be medically consistent with the Veteran’s statements describing functional loss during flare-up. The examiner identified pain and weakness as significantly limiting functional ability with flare-ups, describing ROM as flexion 0 to 95 degrees, extension 95 to 0 degrees, forearm supination 0 to 80 degrees, and forearm pronation 0 to 30 degrees. The Veteran was found to have reduced muscle strength, measured at 4/5, on extension, but no muscle atrophy was found. He was described as not having flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. No objective evidence of pain was identified on passive range of motion testing. Objective evidence of pain was found when used in non-weight bearing. As noted above, upon review of the evidence, the Board finds that since July 13, 2020, the Veteran is more appropriately evaluated under Diagnostic Code 5206, evaluating limited flexion. The Veteran was originally granted service connection under 5207 based on limitation of motion due to osteoarthritis, despite his limited motion being noncompensable, rather than specifically limitation of extension. Hence, the change in applied diagnostic code does not effectively result in reduction or severance; neither the Veteran’s flexion nor extension were rated compensable based on the Veteran’s ROM testing prior to the July 2020 examination. Both were based on the arthritis, not the plane of motion. Murray v. Shinseki, 24 Vet. App. 420 (2011). However, in this examination, the Veteran’s testing revealed flexion limited to 95 degrees. Although this is halfway between 100 degrees, warranting a 10 percent evaluation, and 90 degrees, warranting a 20 percent evaluation, the Board will resolve in favor of the Veteran. Accordingly, a 20 percent evaluation for limited flexion is warranted since July 13, 2020. However, prior to this time, an evaluation in excess of 10 percent is not warranted under either Diagnostic Code 5206 or 5207. Next, regarding supination and pronation, for the period prior to August 1, 2016, the evidence did not demonstrate loss of supination or pronation. Since August 1, 2016, the Veteran’s supination was evaluated at 10 percent disabling effective August 1, 2016. Such was awarded under 38 C.F.R. § 4.59, based on painful motion of the forearm. Since the July 13, 2020 examination, upon ROM testing, pronation was found to be limited to 30 degrees. This is less than the middle of the arc, which is normally considered to end at 85 degrees. This 30 percent rating is also the maximum evaluation assignable under Diagnostic Code 5213 without bone fusion and fixation of the hand. At no time during the appeal period does the evidence indicate that such fusion and fixation of hand position exist. Consequently, the medical evidence does not support a rating in excess of 30 percent for the right (major) elbow disability due to limitation of supination and pronation for the period since July 13, 2020. Therefore, the Veteran is entitled to a 20 percent evaluation for right elbow arthritis, limited flexion, under Diagnostic Code 5010-5206 since July 10, 2020. Prior to this, a 10 percent evaluation under 5010-5207 is warranted. The Veteran is also entitled to a 30 percent evaluation for right elbow arthritis, limitation of pronation, under Diagnostic Code 5213 since July 13, 2020. Prior to this time, he is entitled to a 10 percent evaluation for right elbow arthritis, limitation of supination, under Diagnostic Code 5213 from August 1, 2016. A separate evaluation under Diagnostic Code 5213 is not warranted prior to August 1, 2016. REASONS FOR REMAND Left Lower Extremity Radiculopathy As noted above, the VA peripheral nerves condition examination was inadequate, requiring clarification. While the examination noted that the Veteran had radiculopathy down both legs, greater in the left than the right, in the July 2020 opinion, the examiner found that there was no chronic diagnosis for a peripheral neuropathy. However, in a September 2020 addendum opinion, the examiner clarified that the Veteran has a diagnosis of lumbar radiculopathy left lower extremity. She stated that the condition is the result of a nonservice-connected lumbar degenerative disc disease, disc herniation and stenosis, for which the veteran had surgical intervention in February 2020. She found that this diagnosis of lumbar radiculopathy, left lower extremity, is not secondary to or aggravated by the veteran’s service-connected lumbar strain, but rather lumbar strain involves only musculature and ligaments and does not progress to the stenosis or disk herniation. She referenced medical literature in support of this finding. Although remand is not warranted based on Stegall for this issue, remand is warranted on other grounds. The Board may raise sua sponte a claim based on CUE in order to correct an obvious and undebatable error. 38 C.F.R. § 3.105(a)(1) (at any time after a decision is final, VA may initiate review of the decision to determine if there was CUE); 3.2600(e) (a reviewer may reverse a prior AOJ decision, including any prior decision that has become final due to failure to timely appeal, on the grounds of CUE). CUE is the type of error which, had it not been made, would have manifestly changed the outcome. It is an error that is undebatable, so that it can be said that reasonable minds could only conclude the original decision was fatally flawed. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). CUE must be found where the statutory or regulatory provisions existing at the time were incorrectly applied. See id. The Veteran was originally service connected for recurrent lumbosacral discomfort in a May 1994 rating decision. In the October 4, 2004 rating decision, the matter was recharacterized as lumbosacral strain. Here, the AOJ specifically found that the Veteran’s granted service connection did not include degenerative disc disease or intervertebral disk syndrome. This finding referenced a July 2004 examination, at which time the examiner stated that the Veteran was service connected for a back strain, but not for intervertebral disk syndrome (IVDS). However, no consideration was provided to the Veteran’s service treatment records from June 1990, which showed that the Veteran had 10 years of progressive lower back pain and noted complaints of left lower extremity radicular symptoms. Furthermore, a July 1990 record reveals an assessment of “probable discogenic lower back pain.” Although the associated CT scan was negative, it showed slight bulges at L3-4, L4-5, L5-S1. For these reasons, the Board raises, sua sponte, the issue of whether there was CUE in the October 2004 rating decision, specifically limiting that the Veteran’s service-connected lumbosacral discomfort to a lumbosacral strain, stating that this rating did not include his lumbosacral degenerative disc disease or intervertebral disk syndrome. In the case at hand, the Veteran has properly perfected to the Board the issue of left lower extremity radiculopathy, which is known to be a manifestation of a thoracolumbar spine disability. Thus, any finding of CUE in the prior October 2004 rating decision could materially affect the outcome of this issues, and the Board finds the CUE matter is inextricably intertwined with them. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Because the CUE matter is inextricably intertwined with the appealed issues of service connection for left lower extremity radiculopathy, the CUE matter must be remanded for initial AOJ adjudication. Left Knee Disability In July 2020, the Veteran was afforded a VA knee and lower leg conditions examination. The examiner found that the Veteran had a left knee strain diagnosed in 1990. It was noted that he has had increased pain over time, with difficulty standing and walking for long periods of time, as well as pain and stiffness with overuse. In the corresponding July 2020 medical opinion, it was noted that the claimed knee and lower leg condition was not a direct result of an event or illness that occurred in service, as the records document a normal x-ray in March 2014. Rather, it is more likely than not that it is related to radiculopathy secondary to the degenerative joint disease of the lower back with surgical intervention. The examiner further found that the left knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that no chronic diagnosis was made for a knee and lower leg condition. She found that the objective examination was abnormal rendering left knee strain, but that symptoms were subjective only. Accordingly, a nexus was not established. However, this medical opinion is internally contradictory, and therefore inadequate. On the examination, the examiner stated that the Veteran experienced chronic symptoms since its onset in 1990, she made a finding that a nexus was not warranted because symptoms were “subjective only.” Furthermore, in the January 2020 remand instructions, the examiner was asked to comment on the significance, if any, of the Veteran’s in-service complaints of knee pain in July 1980. Such was not discussed in the opinion. Accordingly, clarification as to whether the Veteran’s knee strain has been chronic since service is required on remand. Furthermore, clarification as to whether the Veteran’s left knee condition is more appropriately characterized as left lower extremity radiculopathy is necessary. As such, this matter is also inextricably intertwined with the CUE matter. Left Ankle Disability A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the January 2020 remand directives. As such, another remand is warranted. In July 2020, the Veteran was afforded a VA left ankle conditions examination. Here, the Veteran was diagnosed with a left ankle strain, beginning in 2008. However, regarding the details of onset, the examiner indicated that there was sudden onset of numbness of left foot and ankle, and that this was related to lower back condition causing radiculopathy of left foot and ankle. In the corresponding medical opinion, the examiner indicated that the numbness noted upon examination was more than likely from thoracolumbar condition of radiculopathy. The examiner found that the left ankle disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. This conclusion was supported by the rationale that no chronic diagnosis was made for ankle disorder. She stated that symptoms are subjective only, and that a nexus has not been established. She further noted that the strain in 2008 was 15 years post service and reportedly caused by sudden onset. Although the examination indicates that the Veteran’s left ankle disability is related to left lower extremity radiculopathy, rather than a 2008 left ankle strain, such must be explicitly stated upon remand. As such, this matter is inextricably intertwined with the CUE matter. Left Foot Disability The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the January 2020 remand directives. As such, another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the Veteran was afforded a VA foot conditions examination. Here, the Veteran was found to have left foot numbness, beginning in 2008. It was described as a sudden onset of foot numbness and has remained unchanged. The examiner noted that the Veteran’s claims of foot numbness are consistent with neurological condition rather than musculoskeletal, and that the claim would be best addressed in the corresponding peripheral nerve examination. As noted previously, the July 2020 peripheral nerve condition examination and corresponding medical opinion were inadequate. However, the September 2020 opinion stated that the Veteran does have a diagnosis for left lower extremity radiculopathy. In the medical opinion corresponding with the VA foot conditions examination, the examiner noted that there was a history of degenerative disc disease and surgical fusion of lumbar spine with some radiculopathy noted and weakness. The examiner opined that it was less likely than not that a left foot disability was incurred in or caused by the claimed in-service injury, event, or illness. She further concluded that no chronic diagnosis was made for a left foot condition. She stated that objective examination revealed abnormal findings, and symptoms were found to be subjective only, and that as such, a nexus has not been established. She reiterated that the Veteran reported onset in 2008, 15 years post service and ultimately concluded that there was an abnormal rendered condition diagnosis as left foot strain. Accordingly, further clarification is required. Although the examiner discussed a left foot strain in the opinion, such was not mentioned or diagnosed on the examination. As such, upon remand, an examination must be obtained in order to clarify whether the Veteran has a currently diagnosed left foot strain which accounts for his left foot symptoms, or rather, whether the Veteran’s left foot disability is related to his left lower extremity radiculopathy. As such, this matter is inextricably intertwined with the CUE matter. Right Arm Disability The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the January 2020 remand directives. As such, another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the Veteran was afforded a VA elbow and forearm examination. In this examination, the Veteran’s current symptoms related to his right elbow arthritis were discussed. However, no reference was made to a separate right arm disability. An opinion was provided specifically regarding the right elbow. The examiner found that the Veteran had no issues related to the claimed right arm disability prior to service, and that the current diagnosis of right elbow arthritis was related to an in-service incident during which the Veteran feel on ice while getting into a vehicle. She determined that there was evidence of chronicity, and that a nexus had been established. However, service-connection has already been established for the Veteran’s right elbow arthritis. Rather, on remand, the examiner should specifically determine whether the Veteran has a right arm disability separate and distinct from both his service-connected right elbow arthritis as well as his service-connected right upper extremity radiculopathy. The matters are REMANDED for the following action: 1. Issue a rating decision to adjudicate the claim of CUE in the October 2004 rating decision that narrowed the Veteran’s service connection for lumbosacral discomfort to lumbosacral strain, specifically finding that this grant of service connection did not include degenerative disc disease or intervertebral disk syndrome. If adverse, the Veteran must be informed of his appellate rights with respect to the decision. 2. Then, adjudicate the issue of entitled to service connection for left lower extremity radiculopathy. 3. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any left knee, left ankle, and/or left foot disability. The claims folder must be reviewed in conjunction with the examination. a) The examiner must clarify whether the Veteran has a current left knee disability, specifically a left knee strain, or whether any left knee symptoms are solely attributable to left lower extremity radiculopathy. The examiner should discuss the Veteran’s in-service strained left knee diagnosis from July 1980. The examiner must opine as to whether any such currently diagnosed disability is at least as likely as not related to an in-service injury, event, or disease, otherwise had its onset in service, or is otherwise related to a service-connected disability, such as his lumbosacral disability. b) The examiner must clarify whether the Veteran has a current left ankle disability, specifically a left ankle strain, or whether any left ankle symptoms are solely attributable to left lower extremity radiculopathy. The examiner must opine as to whether any such currently diagnosed disability is at least as likely as not related to an in-service injury, event, or disease, otherwise had its onset in service, or is otherwise related to a service-connected disability, such as his lumbosacral disability. c) The examiner must clarify whether the Veteran has a current left foot disability, specifically a left foot strain, or whether any left foot symptoms are solely attributable to left lower extremity radiculopathy. The examiner must opine as to whether any such currently diagnosed disability is at least as likely as not related to an in-service injury, event, or disease, otherwise had its onset in service, or is otherwise related to a service-connected disability, such as a lumbosacral disability. 4. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any right arm disability, considering that the Veteran is already service connected for right elbow arthritis and right arm radiculopathy. The claims folder must be reviewed in conjunction with the examination. If any other diagnoses are identified, the examiner must opine as to whether it is at least as likely as not that such is related to an in-service injury, event, or disease, or otherwise had its onset in service. 5. Then, readjudicate the remanded issues. If the benefit sough remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.