Citation Nr: 21010896 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-43 275 DATE: February 26, 2021 ORDER From October 19, 2018, to November 26, 2018, entitlement to a temporary total rating (100 percent) due to surgery requiring convalescence for the service-connected status-post left elbow repair of the ulnar and median nerves (herein left elbow disability) is granted. From July 30, 2010, to October 16, 2020, and excluding the period of temporary total rating based on convalescence, entitlement to a 30 percent rating, but no higher, for the left elbow disability under Diagnostic Code (DC) 8513 (reassigned from DC 8516) is granted. From October 16, 2020, entitlement to a rating in excess of 30 percent for the service-connected left elbow disability is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. During the pendency of the appeal for an increased rating for the Veteran’s service-connected left elbow disability, the Veteran underwent revision of the left ulnar nerve decompression and submuscular transposition on October 19, 2018, which, resolving reasonable doubt in favor of the Veteran, necessitated convalescence until November 26, 2018. 2. Throughout the appeal period, the evidence shows that the Veteran’s left elbow disability more nearly approximates moderate incomplete paralysis of all radicular groups. 3. The Veteran’s service-connected disabilities are not shown to have precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. From October 19, 2018, to November 26, 2018, the criteria for a temporary total rating due to surgery requiring convalescence for the service-connected left elbow disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 2. From July 30, 2010, to October 16, 2020, and excluding the period of temporary total rating based on convalescence, the criteria for entitlement to a 30 percent rating, but no higher, for the service-connected left elbow disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8513. 3. From October 16, 2020, the criteria for entitlement to a rating in excess of 30 percent for the service-connected left elbow disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8513. 4. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1975 to September 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In September 2019 and August 2020, the Board remanded the matter to the RO for further development. As an initial matter, in an October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 30 percent rating for the Veteran’s left elbow disability from October 16, 2020, the date of a VA examination. The grant of an increased rating during an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board also notes that during the pendency of the Veteran’s increased rating claim for his service-connected left elbow disability, he underwent surgery. Although he did not explicitly request a temporary total rating pursuant to 38 C.F.R. § 4.30, by disagreeing with the rating assigned for his service-connected left elbow disability, he is presumed to be seeking the maximum benefit under any applicable theory. See e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, an inferred claim of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 has been raised by the record as part of the appeal for a higher rating for his service-connected left elbow disability. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to a temporary total rating due to surgery requiring convalescence for the service-connected left elbow disability from October 19, 2018, to November 26, 2018 The Veteran contends a higher rating for his service-connected left elbow disability is warranted, to include temporarily following his October 2018 surgery. A total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. §§ 4.30 (a)(1), (2), or (3), effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Extensions of one, two, or three months beyond the initial three months may be made in certain circumstances that warrant additional convalescence under 38C.F.R. §4.30 (a) (1-3). 38 C.F.R. § 4.30 (b)(1). Under 38 C.F.R. § 4.30 (a), total ratings will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The United States Court of Appeals for Veterans Claims (Court) has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary 415 (30th ed., 2003)). The Court defined recovery as "the act of regaining or returning toward a normal or healthy state." (citing Webster's Medical Desk Dictionary 606 (1986)). The Court has noted that the term "convalescence" does not necessarily entail in-home recovery and has held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Id.; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). Here, a January 2016 orthopedic treatment note reflects that treatment for the Veteran’s left elbow pain failed to relieve his symptoms and that if his symptoms persisted, he could consider a neurolysis revision with a submuscular transposition. The treatment note further reflects that this surgery would require six weeks of postoperative limitations, to include no heavy lifting, and that because the Veteran worked as a mechanic for the United States Post Office, he was unable, at that time, to set aside six weeks to adhere to these limitations. The treatment note also indicated that the Veteran would return for surgical treatment when he was able to set aside six weeks for the surgery. Thereafter, the Veteran underwent orthopedic surgery for his left elbow disability on October 19, 2018. Specifically, a revision of his left ulnar nerve decompression and submuscular transposition at the level of the elbow was performed. See October 2018 Operative Report. Following the procedure, his left upper extremity was placed in a sling. He was permitted to do range of motion as tolerated but was not allowed to lift more than a cup of coffee. His discharge instructions reflected that his condition at discharge was good and that he had non-weight bearing activity of the upper extremity. See October 2018 Orthopedics Patient Release/Discharge Instructions. On October 30, 2018, the Veteran had a post-operative visit at the orthopedic clinic to follow-up from his surgery. Physical examination revealed that his surgical incision was well healed, and he was noted to be doing well overall. At that time, his sutures were removed but he was not allowed to do heavy lifting of his left hand. Thereafter, on November 26, 2018, the Veteran had another post-operative visit at the orthopedic clinic. His symptoms had improved, and his surgical incision was well healed. On physical examination, he had full range of motion of the left elbow and his physician found that, at that point in time, all activities were tolerated. Additionally, during the April 2019 Board hearing, the Veteran testified that at the time of his surgery, he had been off of work due to another medical issue but estimated that he would have been able to go back to work after two months following the surgery. See April 2019 Board hearing transcript, pp. 14-15. Based on the foregoing, the Board concludes that the evidence is in equipoise as to whether the Veteran’s recovery from his October 19, 2018, left elbow surgery necessitated convalescence for at least a month. In this regard, the evidence shows that the Veteran was unable to lift more than a cup of coffee immediately following his surgery and could not participate in heavy lifting for more than a month after his surgery. The Veteran also testified that his surgery would have prevented him from working for a period of time while the January 2016 orthopedic treatment note indicates that the precise surgery the Veteran underwent involved six weeks of postoperative limitations that would impact his ability to work. In light of the restrictions that the Veteran was given following his surgery and the evidence indicating that these restrictions would limit him, including impact his ability to work, and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s left elbow nerve surgery necessitated at least one month of convalescence. Accordingly, a temporary total rating under 38 C.F.R. § 4.30 is warranted from October 19, 2018, to November 26, 2018, the date the Veteran’s physician found the Veteran could participate in all activities following his surgery. The Board notes there is no evidence that the Veteran is entitled to benefits under this regulation beyond November 26, 2018, as the evidence shows the Veteran had full range of motion, improved symptoms, and a healed surgical wound as of this date. Additionally, there is no evidence that his surgery resulted in severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement or continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more, necessitating convalescence beyond November 26, 2018. 38 C.F.R. § 4.30(a).   2. Entitlement to a rating in excess of 20 percent (excluding the period of temporary total rating) from July 30, 2010, to October 16, 2020, and a rating in excess of 30 percent thereafter, for the service-connected left elbow disability The Veteran seeks increased ratings for his service-connected left elbow disability. By way of background, VA received the Veteran’s non-initial increased rating claim for his left elbow disability on July 30, 2010. As such, the Board will consider the Veteran’s symptomatology from this date, to include the one-year period prior to this date (i.e., from July 30, 2009). Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out in 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. In the present case, the Veteran is currently in receipt of a 20 percent rating under DC 8516 from July 30, 2010, to October 16, 2020, and a 30 percent rating under DC 8513 from October 16, 2020, for his left elbow disability. DC 8513 provides the rating criteria for paralysis of all the radicular groups, and therefore, neuritis and neuralgia of all the radicular groups. 38 C.F.R. § 4.124a. Under DC 8513, mild incomplete paralysis of the affected nerves is rated 20 percent disabling for either extremity, moderate incomplete paralysis of the affected nerves is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis of the affected nerves is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, and complete paralysis of the affected nerves is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. Id. DC 8516 provides the rating criteria for paralysis of the ulnar nerve. Under DC 8516, mild incomplete paralysis is rated 10 percent disabling for a major or minor extremity; moderate incomplete paralysis is rated 30 percent disabling for a major extremity and 20 percent disabling for a minor extremity; and severe incomplete paralysis is rated 40 percent disabling for a major extremity and 30 percent for a minor extremity. Complete paralysis of the ulnar nerve is rated 60 percent for the major extremity, and it contemplates the "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. Id. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type picture 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. See the note preceding DC 8510. The Board also observes that the words “mild,” “moderate,” and “severe,” as used in the applicable DCs, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. At the outset, the Board notes that the Veteran is right-handed and, thus, the criteria for the minor side is for application. Turning to the evidence of record, in May 2010, the Veteran complained of moderate upper extremity pain, including symptoms in his left elbow, that were abrupt in onset and were intermittent. See May 2010 treatment record. Upon examination, his upper extremities exhibited normal range of motion without evidence of motor deficit. He had mild tenderness in the left arm. In February 2011, the Veteran underwent a VA peripheral nerves examination. At the time of the examination, he reported flare-ups in form of pain and functional loss. He explained that his pain and functional loss were caused by overuse, which happened once to twice a month, lasting a day, and were moderate in severity. His symptoms also included numbness. Upon examination, a slight decrease in muscle strength was noted but his muscle tone and fine motor control were normal. The examiner found that the Veteran had radial and ulnar nerve paralysis and that he experienced decreased sensation. The examiner further found that the Veteran’s condition had a moderate effect during flare-ups on his usual occupation and daily activities. Thereafter, the Veteran continued to report left elbow symptoms, including pain. In this regard, in his June 2013 Notice of Disagreement, the Veteran reported that he experienced increased left elbow pain that caused great discomfort and affected the quality of his daily life. A July 2015 VA treatment note also reflects that the Veteran had left elbow pain and slight tenderness to palpation on the medial epicondyle but good range of motion and strength. In September 2015, the Veteran underwent another VA peripheral nerves examination. At the time of the examination, he was not on any medication for his condition. He reported that with certain motions of his elbow, his nerve moved and that he had numbness in the upper arm and forearm that lasted for 10 to 20 minutes in duration. His symptoms included moderate numbness of the left upper extremity. He had normal reflex and muscle strength testing but decreased sensation to light touch for his left hand/fingers. The VA examiner assessed the Veteran with mild incomplete paralysis of the left ulnar nerve and found that the Veteran’s condition did not impact his ability to work. In October 2015, the Veteran underwent an electromyography (EMG) after a treating physician noted that the Veteran’s motor weakness on grip testing was concerning. See October 2015 treatment records. At the time of his EMG, the Veteran reported several months of medial elbow discomfort and numbness as well as tingling in the left medial forearm and fourth and fifth digits on the left. He also felt weakness with left hand gripping. On examination, he did not appear to have any left-hand muscle atrophy and had 5/5 muscle strength in all key muscle groups bilaterally. He had 4/5 left grip strength and interossei. His EMG results were noted as abnormal showing evidence of left ulnar neuropathy at the elbow and evidence of left median neuropathy at the wrist involving both sensory and motor fibers. Needle EMG of selected ulnar innervated muscles also demonstrated chronic motor unit changes consistent with remote axonal loss and reinnervation. Thereafter, in November 2015, the Veteran reported that he experienced significant pain and tingling that radiated from his left elbow down to his hand. See November 2015 VA Form 9. He argued that his disability inhibited his daily functioning quite significantly as he needed both his hands to do his job. Id. That month, a November 2015 left elbow radiograph showed that the Veteran had marked thickening of the medial soft tissue at the flexor pronator mass and in the soft tissues inferior to the medial epicondyle. His adjacent ulnar nerve appeared hyperintense and enlarged. He also had a partial-thickness tear of the common extensor tendon complex at the lateral humeral condyle. In the following month, the Veteran sought treatment at an orthopedic clinic where he presented with several months of sensory symptoms of the ulnar nerve injury and grip weakness. See December 2015 orthopedic clinic note. He reported numbness, tingling, and pain in his left arm, forearm, and hand. Upon physical examination, sensation was intact to the median, radial and ulnar nerve distributions. He agreed to try a nighttime extension splint and was fitted with a thermoplastic elbow splint. In January 2016, the Veteran reported that he continued to experience symptoms without relief despite using a nighttime splint for the past two weeks. See January 2016 orthopedic clinic treatment record. Specifically, he reported that he experienced intermittent pain, rated as a 2/10 in severity, and paresthesias radiating from the medial aspect of the elbow down the ring and small fingers. He had a positive Tinel’s test and muscle strength testing revealed a 4+/5 for the left small finger. In December 2017, the Veteran was afforded another VA peripheral nerves examination. At the time of the examination, he complained of daily numbness between his left elbow and left fourth and fifth fingers exacerbated by external rotating and weakened left hand grip. He used an elbow brace as needed but otherwise tolerated his condition without treatment. He was diagnosed with left ulnar nerve neuropathy status post left ulnar nerve transposition surgery and his symptoms included moderate numbness. Upon examination, he had normal muscle strength and reflex testing but decreased sensation to light tough for the left hand/fingers. The examiner assessed the Veteran with mild incomplete paralysis of the left ulnar nerve. The examiner further found that the Veteran’s condition impacted his ability to work as he experienced interference holding objects with his left hand while externally rotating. The examiner noted that the Veteran accommodated for this limitation by putting objects down or taking objects with his right hand. In July 2018, the Veteran again reported worsening symptoms. See July 2018 orthopedic surgery clinic note. Specifically, he experienced left-sided numbness and tingling to his small and ring fingers and also had weakness with grip strength. He had positive Tinel’s testing at the cubital tunnel. His physician noted that because conservative management failed to resolve his symptoms, including with nighttime splinting, he would be scheduled for surgery. A left elbow radiograph that month also showed that the Veteran had enthesopathy of the medial humeral epicondyle. See July 2018 left elbow radiograph. On October 19, 2018, the Veteran underwent a left ulnar nerve decompression revision and submuscular transposition. See October 2018 operative report. As discussed above, he is now in receipt of a temporary total rating (100 percent) due to convalescence following this surgery from October 18, 2018, to November 26, 2018. Thereafter, the Veteran reported worsening symptoms since his surgery. For instance, at the April 2019 Board hearing, he testified that his left elbow was weaker since his recent surgery and that it prevented him from doing normal activities such as household chores or cooking. See Board hearing transcript, p. 5. He also testified that he felt continuous numbness and that his muscle had worsened following his surgery. See id. at pp. 5-12. Likewise, an April 2019 orthopedic clinic treatment record reflects that the Veteran endorsed some worsening numbness to the ulnar aspect of his hand following his surgery, but otherwise denied any other complaints. His current pain was reported as a 5/10 on a pain scale. Upon physical examination, his left elbow had full range of motion and he had some tightness on his ulnar side of his forearm muscles with elbow flexion. He also had some paresthesias to the ulnar border of his hand. At that time, he declined occupational therapy and was counseled against a third surgery. In January 2020, the Veteran underwent another EMG. See January 2020 private treatment note. At the time of the study, he complained of pain, numbness, and tingling in both hands with worsening pain and paresthesia. Specifically, he reported that his symptoms had progressively worsened since his last surgery and that his symptoms woke him up at night. Aggravating factors for his disability included holding objects, driving, and working with tools. He also endorsed subjective grip strength weakness on his left. Upon physical examination, very mild muscle atrophy of left FDI was noted, but he had normal muscle tone appreciated throughout. Sensation to light touch was also intact and symmetric throughout except decreased sensation in left middle and small fingers and altered sensation in left medial elbow. The Veteran’s muscle strength testing was 5/5 in elbow flexion, extension, wrist extension, finger abduction and finger flexion. His EMG and nerve conduction study results were noted as abnormal and showed electrodiagnostic evidence of median neuropathy at his bilateral wrists consistent with diagnosis of left and right moderate carpal tunnel syndrome. There was no electrodiagnostic evidence of bilateral ulnar or radial neuropathy and no evidence of left ulnar neuropathy at the elbow. Thereafter, the Veteran was afforded several VA examinations and opinions in relation to his claim. In March 2020, he underwent another VA peripheral nerves examination where he was diagnosed with left ulnar neuropathy. At the time of the examination, he was taking pain pills and lidocaine patches for his nerves. He also reported that his condition had worsened since his second surgery including left hand weakness with gripping. The examiner noted that his symptoms included mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Upon examination, muscle strength, reflex, and sensory testing were normal and there was no evidence of muscle atrophy. Tinel and Phalen’s testing were also negative. The examiner assessed the Veteran with moderate incomplete paralysis of the ulnar nerve and found that the Veteran’s disability impacted his ability to work in that he was not able to do heavy, repetitive, or prolonged lifting, or overhead work without breaks when he experienced flares. The examiner concluded that the Veteran’s current pain and numbness due to his recent ulnar surgery was related to, and a progression of, his service-connected left elbow disability. The examiner further noted that although the October 2015 EMG results showed left ulnar and median nerve neuropathy, the Veteran’s symptoms appeared more related to the ulnar nerve as this was where he had two surgeries. Specifically, the examiner found that the median nerve appeared to be an incidental finding as any symptoms involving that nerve would be felt in the thumb index and radial long finger. That same month, the Veteran was also afforded a VA elbow and forearm conditions examination. See March 2020 VA examination. The Veteran reported flare-ups in the left elbow that occurred daily and nightly and were precipitated by holding things or lifting his arms. He described these flare-ups as severe and reported functional loss in the form of difficulty gripping items. His range of motion testing was normal with flexion to 145 degrees and extension to 0 degrees. There was evidence of pain on rest/nonmovement as well as on passive range of motion but no evidence of pain with weight-bearing. The examiner further found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flares. The examiner noted objective evidence of pain on the medial elbow that was mild to moderate in severity and specifically indicated that the Veteran’s disability was a nerve problem with left elbow and hand weakness and pain. The Veteran most recently underwent another VA peripheral nerves examination and elbow and forearm conditions VA examination in October 2020 where he was diagnosed with left median nerve neuropathy and left ulnar nerve neuropathy. At the time of the examination, the Veteran reported a worsening in his symptoms since his revision surgery and that he had to retire from working in maintenance at the Postal Service because his grip strength declined as well as his stamina. The examiner noted that his condition had progressed/worsened since onset and that his current symptoms included pain, numbness, tingling, and weakness. Specifically, the examiner noted the Veteran had moderate constant pain, moderate paresthesia and/or dysesthesias, and moderate numbness. There was no evidence of muscle atrophy and muscle strength testing was normal except for the Veteran’s grip strength, which was noted to be 4/5. Reflex testing was also normal. The Veteran had decreased sensation to light touch for the left hand/fingers and positive Tinel’s and Phalen’s signs. The examiner assessed the Veteran with moderate incomplete paralysis of the median and ulnar nerves. The examiner additionally found that the Veteran’s condition affected his ability to work because it resulted in limited gripping, handling, and holding. During the elbow and forearm conditions examination, the Veteran reported that he experienced persistent pain, numbness, and tingling in his hands and fingers but was noted not to have significant loss of function of the elbow at the time as he did not report flare-ups or functional loss of the left elbow. Range of motion testing showed flexion to 145 degrees and extension to zero degrees without pain. The examiner estimated that the Veteran’s range of motion would be the same during flare-ups and after repeated use. There was also no evidence of pain with weight-bearing and with non-weight bearing and the examiner noted that passive range of motion was the same as active range of motion. The examiner concluded that the Veteran’s symptoms did not appear to affect the elbow joint and/or function at the time and that, instead, his surgery residuals appeared to affect the nerve function and grip strength as noted during the corresponding peripheral nerves examination. The October 2020 VA examiner, who conducted both the elbow and forearms and peripheral nerves examinations that month, also provided an opinion regarding the Veteran’s condition. First, the examiner found that the Veteran’s diagnosed left ulnar nerve and median nerve neuropathy was due to or the result of his initial status post left elbow repair. The examiner explained the Veteran’s current physical examination and history, including the October 2015 EMG results, were most consistent with ulnar and median nerve neuropathy on the left side. The examiner again confirmed that the Veteran’s neuropathy appeared to be moderate at that time and was best characterized as incomplete paralysis rather than neuritis or neuralgia. She also found that the ulnar nerve neuropathy and median nerve neuropathy symptoms overlapped because the median and ulnar nerves are both found in the fourth digit. She further explained that the ulnar, median, and radial nerves all provide sensory input at the fourth digit and, therefore, altered sensation in that digit could be due to all three nerves, but based upon the October 2015 EMG results, the Veteran’s altered sensation in his fourth digit was more likely due to the median and ulnar nerves and not the radial nerve. Finally, she concluded that any muscle weakness shown on the previous VA examination was likely due to neuropathy as the EMG showed both motor and sensory fiber involvement. The Board finds that the October 2020 VA examinations and opinion sufficiently comply with the prior Board remand instructions and that the VA examiner addressed the severity of the Veteran’s condition over time by detailing the Veteran’s symptoms since onset and finding that his condition progressed/worsened over time. Given the above evidence, the Board finds that the Veteran’s disability, throughout the appeal period, more nearly approximates the criteria for moderate incomplete paralysis of all radicular groups under DC 8513. Although the Veteran’s left elbow disability is currently rated under DC 8516 for the appeal period prior to October 16, 2020, the Board finds that DC 8513 more appropriately encapsulates the Veteran’s disability as the evidence shows that the Veteran’s disability involves multiple nerves that overlap in symptomatology. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Accordingly, the Board shall discontinue the Veteran’s 20 percent disability rating under DC 8516 from July 30, 2010, the date of the Veteran’s increased rating claim, to October 16, 2020, and shall replace that rating with a 30 percent rating under DC 8513. As discussed below, this change favorably increases the evaluation assigned to the Veteran’s left elbow disability from a 20 percent to 30 percent rating for the period from July 30, 2010, to October 16, 2020; thus, there is no prejudice or rating reduction to the Veteran in reassigning the DC. See Butts, 5 Vet. App. at 538. The Board finds that the medical and lay evidence, throughout the appeal period, shows that the Veteran’s left elbow repair resulted in pain, paresthesia, numbness, tingling, motor and sensory weakness, and decreased grip strength, which more closely approximates moderate incomplete paralysis of all radicular groups. The evidence further shows that despite the use of conservative treatment with medication, patches, and splints, his symptoms persisted and necessitated surgery. The Board acknowledges that the September 2015 VA examiner and December 2017 VA examiner concluded that the Veteran had mild incomplete paralysis of the left ulnar nerve. However, both examiners found the Veteran’s symptoms included moderate numbness while the February 2011 VA examiner noted the Veteran’s disability, involving the radial and ulnar nerves, had a moderate effect with flare-ups on his occupational and daily activities. Additionally, the January 2020 EMG results reflected moderate median nerve neuropathy while the March 2020 VA examiner assessed the Veteran with moderate incomplete paralysis of the ulnar nerve and the October 2020 VA examiner assessed the Veteran with moderate incomplete paralysis of the median and ulnar nerves. The Veteran also experienced increased pain and weakness during flare-ups. As such, the Board finds that at various points throughout the appeal period, the Veteran’s disability impacted/affected his radial, ulnar, and median nerves, and that the clinical examinations overwhelmingly assessed his disability as moderate in nature. Accordingly, a 30 percent rating is warranted from July 30, 2010, to October 16, 2020, (excluding the period of temporary total rating) for the Veteran’s left elbow disability under DC 8513. The finds that a 30 percent rating is warranted from July 30, 2010, the date of the Veteran’s increased rating claim, as the evidence reflects moderate incomplete paralysis from this date but does not reflect such in the one-year period prior to the Veteran’s claim. However, the Board finds that a rating in excess of 30 percent from July 30, 2010, to October 16, 2020, and a rating in excess of 30 percent thereafter, is not warranted as the evidence does not show that the Veteran’s disability more nearly approximates “severe” incomplete paralysis of all radicular groups or for any specific impacted nerves. In this regard, and as noted above, the February 2011, March 2020, and October 2020 VA examiners characterized the Veteran’s incomplete nerve paralysis as moderate in nature while the January 2020 EMG results reflected moderate median nerve neuropathy. Additionally, the objective physical examinations, noted in the treatment records, generally noted normal muscle functioning and normal reflex with some decreased sensation and grip strength weakness. While there was some evidence of decreased muscle strength, the VA examinations and treatment records consistently noted the Veteran did not have muscle atrophy and testing generally showed 5/5 muscle strength with some decreased grip strength. Additionally, the October 2020 VA examiner concluded that any muscle weakness was likely due to his neuropathy. Moreover, while the Veteran reported that his symptoms worsened during the appeal period, and his condition was noted to have progressed in severity, the Board finds that this worsening does not rise to the level of severe incomplete paralysis as contemplated by the next-higher rating. In this regard, his condition was continuously assessed as moderate and the October 2020 VA examiner specifically noted, when considering his median and ulnar nerve neuropathy, that his condition appeared moderate at the time. The Board finds that the VA examinations, EMG reports, and objective clinical testing in the treatment records are probative evidence in this case as they offer detailed specific findings pertinent to the rating criteria and evaluate symptom severity and functional impairment. Thus, with consideration of the Veteran’s lay statements as well as the objective clinical features and evaluations of the Veteran’s disability, a rating in excess of 30 percent (excluding the period of temporary total rating) is not warranted at any point during the appeal period. The Board has considered whether alternative and/or separate additional ratings may be warranted due to the evidence showing impairment of the radial, median, and ulnar nerves. Specifically, as discussed above, the evidence shows that the Veteran has incomplete paralysis of the left median and ulnar nerves, and if rated independently, can be evaluated under DCs 8515 and 8516, respectively. Additionally, the February 2011 VA examiner found that the Veteran’s disability included radial nerve paralysis, which if rated independently, can be evaluated under DC 8514. However, 38 C.F.R. § 4.124a provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, considered in radicular group rating. Here, the AOJ appropriately evaluated the Veteran’s left elbow disability from October 16, 2020, under DC 8513 (all radicular groups) and the Board finds this DC best contemplates the Veteran’s disability from July 30, 2010, to October 16, 2020, as this DC contemplates multiple nerve injuries affecting the Veteran’s left elbow. Additionally, the Board finds that assigning separate ratings under DCs 8514, 8515, and 8516 for the Veteran’s left elbow repair would constitute impermissible pyramiding as the Veteran’s injuries to the radial, median, and ulnar nerves all contribute to the same and overlapping functional impairment of the left upper extremity consisting of pain, paresthesias, numbness, and sensory loss. The Board notes that VA regulations prohibit evaluation of the same disability or the same or overlapping symptomatology under different DCs (which is called "pyramiding"). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the October 2020 VA examiner explained that the Veteran’s radial and median nerve symptoms overlapped because the median and ulnar nerves are both found in the fourth digit and further explained that the ulnar, median, and radial nerves all provide sensory input at the fourth digit and therefore altered sensation in that digit could be due to all three nerves. As the Veteran’s symptom cluster, anatomical location, and effects from the involved nerves overlap and do not constitute separate and distinct manifestations of disabilities, separate ratings under DCs 8514, 8515, or 8516 are not warranted. For this reason, the Board has changed the Veteran’s DC for the appeal period prior to October 16, 2020, as opposed to awarding separate and/or additional ratings and finds awarding separate and/or additional ratings is not warranted since this date. The Board has also considered whether the Veteran is entitled to a higher or separate rating under any other applicable DC referable to the nerves, including DCs 8414, 8515, or 8516, or any other applicable DC referable to the musculoskeletal system such as DCs 5205 through 5213. However, the medical evidence does not show that any other nerves have been impacted besides the median, radial, and ulnar nerves. Further, the Board does not find that a higher rating is warranted under DC 8514, 8515, or 8516, if the Veteran was rated under one of these DCs instead of DC 8513. In this regard, the Veteran’s impairment would have to be severe under DC 8514 or DC 8515 to merit a higher rating while a 30 percent rating, which the Veteran is already in receipt of, is assignable for severe incomplete paralysis of the ulnar nerve. Again, the VA examiners and clinical findings, do not show the impairment of these nerves to be severe. Finally, the VA examinations as well as the objective physical testing in the treatment records reflect that the Veteran consistently had full range of motion of his elbow/forearm while the October 2020 VA examiner concluded that the Veteran’s symptoms did not appear to affect the elbow joint and/or function and, instead, appeared to affect the nerve function and grip strength. As such, the Board does not find the Veteran is entitled to a separate and/or higher rating under any other applicable DCs referable to the musculoskeletal system. In sum, from July 30, 2010, to October 16, 2020, and excluding the period of temporary total rating based on convalescence, entitlement to a 30 percent rating, but no higher, under DC 8513 for the Veteran’s left elbow disability is granted. However, from October 16, 2020, entitlement to a rating in excess of 30 percent for the left elbow disability is denied as the preponderance of the evidence is against the claim. 3. Entitlement to a TDIU due to service-connected disabilities By way of background, a claim for entitlement to a TDIU was raised by the record as part of the Veteran’s increased rating claims for his service-connected left elbow disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider whether a TDIU is warranted from July 30, 2010, the date of the Veteran’s increased rating claim, as well as from the one-year period prior to this date. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following “substantially gainful employment” consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period, the Veteran is service-connected for the following disabilities: (1) status-post left elbow repair of the ulnar and median nerves (rated as 10 percent disabling from July 17, 2006, 30 percent disabling from July 30, 2010, to October 19, 2018, 100 percent disabling from October 19, 2018, to November 26, 2018, and 30 percent disabling from November 26, 2018); (2) amputation of the right thumb distal interphalangeal joint (rated as 20 percent disabling); (3) lumbar spondylosis with thoracolumbar muscle strain (rated as 10 percent disabling from July 30, 2010, and 20 percent disabling from February 7, 2017); (4) left heel spur/plantar fasciitis (rated as 10 percent disabling); (5) right heel spur/plantar fascitis (rated as 10 percent disabling); (6) right lower extremity radiculopathy (rated as 10 percent disabling from February 7, 2017); (7) painful scar of the status post left elbow repair (rated as 10 percent disabling from March 19, 2020); (8) right calf varicose veins (rated as noncompensable (0 percent)); (9) hemorrhoids (rated as noncompensable); (10) granuloma of spermatic cord status post vasectomy (rated as noncompensable); (11) lower back lipoma excision residual scar (rated as noncompensable); tinea versicolor (rated as noncompensable); and alopecia areata (rated as noncompensable). As such, with consideration of the Board’s grant of a 30 percent rating for the Veteran’s left elbow disability from July 30, 2010, to October 16, 2020, and the bilateral factor, and with excluding the award of the temporary total rating, the Veteran meets the schedular criteria for a TDIU from July 30, 2010. As noted above, for TDIU purposes, disabilities of one or both upper extremities, including the bilateral factor, are to be treated as one disability. In this regard, as the Veteran’s left elbow repair and right thumb constitute disabilities of both upper extremities, they are considered to be a single disability for purposes of whether the Veteran has at least one disability rated at 40 percent or more. Thus, for the period from July 30, 2010, the Veteran is in receipt of a combined rating sufficient to meet the schedular requirements for a TDIU. After review of the evidence, the Board finds that entitlement to a TDIU, as well as referral for extraschedular consideration for the one-year appeal period prior to July 30, 2010, where the Veteran does not meet the schedular criteria, is not warranted. In this regard, the evidence of record reflects that the Veteran has completed two years of college and has associate degrees in management/supervision and electronic technology. See September 2006 VA treatment record. The evidence also reflects that the Veteran has worked full time as a mechanic, in the maintenance department, at the Post Office since November 1995. See August 2002 Memo of reported occupational history since last VA examination. At the time of the April 2019 Board hearing, the Veteran was still working at the Post Office, but indicated that he was considering retiring, in part, due to his decreased grip strength from his service-connected left elbow disability. See April 2019 Board hearing transcript, p. 9. Upon careful review of the record, the Board concludes that the Veteran has worked full time for nearly the entire appeal period and finds that his service-connected disabilities are not of such severity to preclude him from obtaining or maintaining substantially gainful employment. First, the Board notes that the Veteran has been given several opportunities to provide employment information to VA, and was specifically requested, on multiple occasions, to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. See, e.g. November 2019, December 2019, January 2020, and September 2020 VA development letters. Despite these attempts for the Veteran to clarify his employment status, including whether he missed work or received reasonable accommodations as due to his service-connected disabilities, to date, the Veteran has not returned or completed this form. There is also no indication that the form was returned as undeliverable. The Board notes that information on this form is pertinent to the Veteran’s TDIU claim as the form gives the Veteran the opportunity to report his employment status and how much time, if any, he missed from work. The Board also points out that the Court has held that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). By reasonable extension of this precept, this includes returning a completed VA Form 21-8940. As such, given the multiple opportunities the Veteran has been provided to clarify his employment history, and lack of response thereof, a remand to clarify such is unnecessary in this case and would serve only to delay the claim. Next, the Board finds that while the record indicates some occupational impairment, it does not indicate that the Veteran is unable to secure and maintain substantially gainful employment. In this regard, the Board does not dispute that the Veteran’s service-connected disabilities affect his occupational abilities. For example, the October 2020 VA examiner found that the Veteran’s left elbow condition affected his ability to work because it resulted in limited gripping, handling, and holding. Additionally, the April 2017 VA back examiner found that the Veteran’s service-connected back disability affected his ability to work in that his condition could limit his sitting, standing, walking, bending, squatting, lifting, carrying. However, the limitations with his service-connected disabilities either alone or in aggregate do not result in an inability to maintain and secure substantially gainful employment as the Veteran worked for almost the entirety of the appeal period. Indeed, the Veteran was able to perform the physical and mental activities required by his occupation as he obtained and maintained his employment for decades. This indicates that the Veteran was capable of maintaining his employment. Additionally, a review of the claims file is negative for any evidence, to include any lay statements from the Veteran, suggesting his employment was marginal in any manner. There is no evidence showing his income was at or below the poverty threshold for one person as determined by the U.S. Department of Commerce or that it constituted employment in a protected environment. Thus, the Board finds that his employment during the appeal period is more than marginal in nature. The Board acknowledges the evidence, including the Veteran’s reports that he retired at the end of 2020, in part, due to his service-connected disabilities. Specifically, a June 2020 VA treatment record reflects that the Veteran planned to retire in September of that year. Thereafter, towards the end of August 2020, the Veteran requested a work slip from a VA physician for the period from August 23, 2020, to November 10, 2020. See August 2020 VA treatment record. He reported that due to his ongoing pain in his left hand, elbow, and back, he was planning on retiring at the end of the year and until then, was using sick leave before he retired. On the other hand, an August 31, 2020, treatment note reflects that the Veteran requested a note for work as he was concerned about COVID-19 and worried about his increased risks for complications working in the Post Office. A physician wrote a note indicating that the Veteran had multiple medical conditions including, but not limited to, ischemic cardiomyopathy, hypertension, hyperlipidemia, atherosclerotic heart disease with a history of past myocardial infarction and obstructive sleep apnea, and that given these conditions along with his age, he was at an increased risk for contracting COVID-19. See August 2020 treatment letter. He was recommended to stay off work until control concerns with COVID-19 had abated and also noted that he had leave until November 11, 2020, and should remain out of work until that time. However, during the October 2020 VA peripheral nerves examination, the Veteran reported a worsening in his symptoms since his left elbow revision surgery and that he had to retire from working in maintenance at the Postal Service because his grip strength declined as well as his stamina. Based on this evidence, it is unclear when/if the Veteran retired because while he reported during the October 2020 VA examination that he had retired as due to his service-connected disability, the August 2020 treatment records reflect he was using sick leave until November 2020. Regardless, the Board finds that a TDIU is not warranted as the evidence does not show that the Veteran is unable to obtain or maintain any form of substantially gainful employment as a result of his service-connected disabilities. Notably, while the VA examinations of record indicate some occupational impairments as due to his service-connected disabilities, they do not indicate he was unable to secure and maintain substantially gainful employment. Specifically, there is no indication in these examination reports that there were restrictions on his ability to accomplish work tasks as a result of his service-connected disabilities such that he would not be able to maintain any form of substantial gainful employment. Additionally, while the evidence shows the Veteran requested a medical sick note in August 2020 as related to his service-connected disabilities, around the same time, he requested a medical sick note as related to other factors and non-service-connected disabilities. Moreover, the evidence does not indicate that the Veteran is limited from participating in a different form of work or would be unable to perform occupational duties in a position that involves less strenuous physical labor as due to his service-connected disabilities. To this point, the evidence shows college training in management. See September 2006 VA social work note. The Board also notes that to the extent that his service-connected disabilities affected his employability, the schedular ratings assigned for his various disabilities compensate him for such impairment. Indeed, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Accordingly, the Board finds that for the appeal period, the probative evidence does not show that the Veteran’s service-connected disabilities alone would preclude him from engaging in substantially gainful employment otherwise consistent with his educational or work history. As a result, entitlement to a TDIU and referral for consideration of a TDIU on an extraschedular basis is not warranted. Therefore, the Veteran’s claim for TDIU is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.