Citation Nr: 21028059 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-31 405A DATE: May 10, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for chronic extensor tendonitis of the left forearm prior to October 9, 2020, and in excess of 50 percent thereafter, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to October 9, 2020, the Veteran's chronic extensor tendonitis of the left forearm had limitation of flexion to 70 degrees. 2. From October 9, 2020, thereafter, the Veteran's chronic extensor tendonitis of the left forearm had limitation of flexion to less than 45 degrees. 3. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 9, 2020, the criteria for entitlement to a disability rating in excess of 30 percent for the Veteran's chronic extensor tendonitis of the left forearm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5206. 2. From October 9, 2020, thereafter, the criteria for entitlement to a disability rating in excess of 50 percent for the Veteran's chronic extensor tendonitis of the left forearm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5206. 3. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to February 1969 and September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision. In December 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. 1. Entitlement to a disability rating in excess of 30 percent for chronic extensor tendonitis of the left forearm prior to October 9, 2020, and in excess of 50 percent thereafter, is denied. The Veteran provides that his left arm disability warrants an increased disability rating. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim for an increased rating under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim for an increased rating. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). At the outset, the Veteran's chronic extensor tendonitis of the left forearm has been rated under Diagnostic Code 5024-5206. Hyphenated diagnostic codes are used when a disability rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Prior to February 7, 2021, Diagnostic Code 5024 pertained to Tenosynovitis and directs the disease to be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002. From February 7, 2021, thereafter, Diagnostic Code 5024 pertains to Tenosynovitis, tendinitis, tendinosis or tendinopathy. Diagnostic Code 5024 directs the diseases to be evaluated under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts. Diagnostic Code 5206 pertains to limitation of flexion of the forearm. While the language of Diagnostic Code 5024 has changed slightly, it has no material impact on the Veteran's claim for an increased rating. Preliminarily, the Board notes that normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. 38 C.F.R. § 4.71, Plate I. Normal pronation of the forearm is from 0 to 80 degrees, and normal supination of the forearm is from 0 to 85 degrees. Id. The Veteran's service-connected disability affects his major extremity. Under Diagnostic Code 5206, limitation of flexion of the forearm to 45 degrees is assigned a 50 percent disability rating for the major extremity. Limitation of flexion to 55 degrees is assigned a 40 percent disability rating for the major extremity. Limitation of flexion to 70 degrees is assigned a 30 percent disability rating for the major extremity. For the major extremity, limitation of flexion to 90 degrees is assigned a 20 percent disability rating, limitation to 100 degrees is assigned a 10 percent disability rating, and limitation to 110 degrees is assigned a noncompensable disability rating. 38 C.F.R. § 4.71a. The Veteran has been afforded several examinations to evaluate the severity of his service-connected chronic extensor tendonitis of the left forearm. The Veteran was first provided an October 2008 VA Joints Examination. In terms of occupational impact, the Veteran has decreased manual dexterity, problems with lifting and carrying, weakness or fatigue, decreased strength, and pain. The Veteran has severe problems with chores, shopping, feeding, dressing, and grooming, moderate problems with traveling, bathing, and toileting, and he cannot exercise. A March 2010 VA Joints Examination states that the Veteran has left elbow/forearm pain, stiffness, weakness, incoordination, decreased speed of joint motion, warmth, and tenderness. The Veteran did not report flare-ups. In terms of range of motion, the Veteran had flexion to 90 degrees, extension to 180 degrees, pronation to 0 degrees, and supination to 0 degrees. The Veteran did not have ankylosis. X-rays of the Veteran's left elbow from March 2010 showed no acute fractures or dislocations, no evidence of joint effusion, and soft tissue structures were unremarkable. Regarding functional impairment, the examination report states that the Veteran's disability has significant affects on his occupation as he has decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, and pain. The Veteran cannot play sports or exercise, has severe problems performing chores, engaging in recreational activities, traveling, and driving, and moderate problems feeding, bathing, dressing, toileting, and grooming. An April 2016 VA Elbow and Forearm Conditions Disability Benefits Questionnaire states that he flare-ups, but did not advise of any functional loss or impairment. Concerning range of motion testing, the Veteran had flexion to 140 degrees, extension to 0 degrees, supination to 50 degrees, and pronation to 60 degrees. Pain noted on flexion and forearm supination and pronation was noted and causes functional loss. There was no evidence of pain with weight-bearing or crepitus. There was objective evidence of localized tenderness or pain on palpation of the forearm and elbow. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional functional or range of motion loss after three repetitions. On repeated use over time, the examination report states that the Veteran has pain, weakness, and lack of endurance that significantly limit functional ability with repeated use over time with no additional loss of range of motion. The April 2016 examination report states that the Veteran has less movement than normal and weakened movement. The Veteran's left elbow muscle strength was 3/5 on flexion and extension, he did not have muscle atrophy or ankylosis, and did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The Veteran does not use an assistive device and his disability does not impact his ability to perform any type of occupational task. An October 2016 VA Medical Opinion Disability Benefits Questionnaire states that the Veteran had a 5-degree range of motion loss on flexion specifically attributable to pain and no additional functional loss with repetition per the April 2016 examination. The Veteran had no additional functional loss attributable to pain during flare-ups. The Veteran's pain could significantly limit functional ability during flare-ups or when the left arm is used repeatedly over time. A March 2017 VA Compensation and Pension Examination Report provides that the Veteran has loss of range of motion of elbow flexion, forearm supination, and forearm pronation attributable to pain. The examination report states that pain could significantly limit functional ability of the left elbow with flare-ups or when the left arm is repeatedly used over time. Increased pain due to the Veteran's disability would reduce range of motion of the left elbow and limit weight-bearing functions, such as lifting, carrying, pushing, and pulling. The Veteran has pain when the Veteran's left elbow is used in non-weight-bearing. A June 2019 VA Elbow and Forearm Conditions Disability Benefits Questionnaire provides that the Veteran has pain, tingling, and reduced grip strength. The Veteran reported flare-ups of constant pain and weakness. On range of motion, the Veteran had flexion to 140 degrees, extension to 0 degrees, forearm supination to 50 degrees, and forearm pronation to 60 degrees. Range of motion contributes to functional loss because of pain, difficulty lifting, and twisting for typical activities of daily living. The Veteran had pain on flexion, extension, forearm supination, and forearm pronation, pain with weight-bearing, pain to light palpation of the joint, and no objective evidence of crepitus. On repetitive use, the Veteran was able to perform repetitive use testing with no additional functional or range of motion loss after three repetitions during the June 2019 examination report. The Veteran has difficulty with repetitions of his left elbow and lifting. The Veteran's left elbow muscle strength was noted as 2/5 on flexion and extension, and he does not have muscle atrophy or ankylosis. He does not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. He does not use assistive devices. He does not have degenerative or traumatic arthritis. Regarding functional impairment, the Veteran's disability makes working difficult as he as trouble lifting and twisting. The Veteran's passive and active range of motion are the same as his initial range of motion. A January 2020 VA Elbow and Forearm Conditions Disability Benefits Questionnaire indicates that the Veteran has worsening left elbow and forearm pain that has caused difficulty lifting and gripping. He has constant aching pain that worsens with movement. The Veteran reported flare-ups of throbbing pain that lasts from hours to days. The Veteran's mild flare-ups occur daily, and prolonged flare-ups last for days and occur one to two times per month. Concerning functional impairment, the Veteran has difficulty with elbow range of motion, gripping, and lifting. The January 2020 examination report states that the Veteran has flexion to 120 degrees, extension to 0 degrees, forearm supination to 45 degrees, and forearm pronation to 60 degrees. The Veteran has decreased range of motion that impacts the use of his upper extremity. He has pain that causes functional loss. The Veteran's flexion, extension, forearm supination, and forearm pronation range of motion exhibited pain, he had pain with weight-bearing, moderate pain of the left forearm over the lateral epicondyle, and no evidence of crepitus. The January 2020 examination report states that, on repetitive use, the Veteran was able to perform repetitive use testing with no additional functional or range of motion loss after three repetitions. Pain, weakness, and lack of endurance significantly limit functional ability with repeated use over a period time and with flare-ups. The Veteran has decreased range of motion that affects the use of his left upper extremity, left elbow flexion and extension muscle strength rated as 3/5, no muscle atrophy, and no ankylosis. He does not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The Veteran does not use an assistive device. The Veteran's disability impacts his ability to perform any type of occupational task as activities involving left elbow range of motion and weight-bearing, such as reaching, lifting, carrying, pushing, and pulling, causes pain. He has objective evidence of pain on passive range of motion testing, there is objective evidence of pain when the joint is used in non-weight-bearing, and the opposing joint is undamaged. An October 2020 VA Elbow and Forearm Conditions Disability Benefits Questionnaire states that the Veteran does not report flare-ups. He advised of functional loss as constant left elbow pain that is exacerbated by activities involving elbow range of motion and weight-bearing, such as reaching, lifting, carrying, pushing, and pulling, and decreased range of motion that affects the use of his upper extremity. The Veteran has flexion to 30 degrees, extension to 0 degrees, forearm supination to 30 degrees, and forearm pronation to 30 degrees. The Veteran has decreased range of motion that impacts the use of his upper extremity. He has pain that causes functional loss and pain on rest or non-movement. The Veteran exhibited diffuse, moderate localized tenderness or pain on palpation and no evidence of crepitus. The October 2020 examination report indicates that the Veteran cannot perform repetitive use testing with at least three repetitions. The Veteran has pain that significantly limits functional ability with repeated use over a period of time and when described in terms of range of motion, the Veteran has flexion to 20 degrees, extension to 0 degrees, forearm supination to 20 degrees, and forearm pronation to 20 degrees. The Veteran has weakened movement due to muscle of peripheral nerve injury, constant left elbow pain exacerbated by activities involving weight-bearing, such as reaching, lifting, carrying, pushing, and pulling. He has decreased range of motion and weakness affects the use of his upper extremity. The Veteran had pain when his left elbow was used in passive range of motion testing and non-weight-bearing. On passive and non-weight-bearing range of motion testing, the Veteran had flexion to 30 degrees, extension to 0 degrees, forearm supination to 30 degrees, and forearm pronation to 30 degrees. The October 2020 examination report states that the Veteran has left elbow flexion and extension rated as 3/5, no muscle atrophy, and no ankylosis. The Veteran has limited pronation with motion lost beyond the middle of the arc and limitation of supination of 30 degrees or less. The Veteran does not use assistive devices. A January 2020 diagnostic study showed no acute fractures or dislocations, dorsal tilt of the lunate, interval progression of moderate first carpometacarpal osteoarthritis compared to the 2010 study. The Veteran also demonstrated interval progression of the hypertrophic changes along the trapezium compared to 2010 with persistent degenerative changes along the scaphoid trapezium articulation. There was also interval development of round and oval ossific densities dorsal and volar to the carpals, which are however corticated suggesting chronicity. The study again showed mild negative ulnar variance. A November 2020 VA Addendum/Clarification Disability Benefits Questionnaire provided by the examiner that conducted the October 2020 examination states that the Veteran's left elbow range of motion measured on the October 2020 examination report represents the range of motion performed by him on that date. His left elbow range of motion limitation was due to constant pain in the elbow, which he advised was exacerbated by repeated range of motion attempts. He was unable to complete repeated use testing of the left elbow due to increased pain with each attempt. Lastly, the examiner indicated that the Veteran's symptoms and range of motion findings may represent increased inflammation of the service-connected disability. Lastly, the Veteran was provided with a December 2020 VA Elbow and Forearm Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has pain located distal to his elbow that he described as soreness that radiates to his entire arm. The Veteran's pain has been gradually worsening over the past year. His pain is aggravated by using his elbow and in particular by repetitive motion, which is alleviated by rest. Regarding functional limitation, he has difficulty writing, typing, manipulating objects more than a few pounds, difficulty bending his elbow and performing activities that require bending his elbow and rotating his arm, and picking up objects. The Veteran reported flare-ups of pain that occur with changes in weather, particularly in the winter, when his pain increases from a 6 out of 10 at baseline to a 7 or 8 out of 10 and occurs approximately two times per week and lasts for about one day at a time. The Veteran did not report a change in range of motion with flare-ups, but he has increased pain. The December 2020 examination report states that the Veteran has flexion to 55 degrees, extension to 0 degrees, forearm supination to 45 degrees, and forearm pronation to 45 degrees. The Veteran has limited range of motion of the elbow due to pain, which contributes to functional loss by limiting his ability to push, pull, and reach for objects. He has pain on flexion, extension, forearm supination, and forearm pronation, and pain causes functional loss. The Veteran has pain with weight-bearing, lateral upper forearm tenderness, and no objective evidence of crepitus. He was able to perform repetitive use testing with at least three repetitions with no additional functional or range of motion loss after three repetitions. The December 2020 examination report demonstrates that the Veteran has pain that significantly limits functional ability with repeated use over a period of time and during flare-ups. When described in terms of range of motion, the Veteran has flexion to 45 degrees, extension to 0 degrees, forearm supination to 45 degrees, and forearm pronation to 45 degrees. Additional factors contributing to his disability include difficulty grasping and lifting objects, pushing and pulling, and performing activities that involve range of motion and weight-bearing of the elbow. The December 2020 examination report indicates that the Veteran's left elbow muscle strength was noted as 4/5 on flexion and extension and he does not have muscle atrophy. The examination report provides that the Veteran does not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. He does not use an assistive device. In his occupation as a driver, the Veteran has difficulty fastening buckles, pushing wheelchairs, and loading and unloading his motor vehicle as a result of his disability. The Veteran had pain when his left elbow was used in passive range of motion testing and non-weight-bearing. On passive and non-weight-bearing range of motion testing, the Veteran had flexion to 55 degrees, extension to 0 degrees, forearm supination to 45 degrees, and forearm pronation to 45 degrees. The Veteran's claims folder also contains a December 2020 VA Medical Opinion Disability Benefits Questionnaire that states his June 2019 and January 2020 range of motion results differ significantly from the October 2020 examination. The examiner stated that the December 2020 range of motion measurements are more consistent with the October 2010 examination. Even with significant coaching, the Veteran was unable to obtain range of motion numbers consistent with his prior examinations. The Veteran reported that pain was his limiting factor, however; his passive range of motion testing showed normal flexion and extension of the elbow without significant difficulty. The Veteran reported that he is favoring his right arm, and the overall lack of use of his left arm may be contributing to his increase in pain, in addition to the possibility that there is some progression and worsening over time of his tendinitis as these types of injuries do tend to be chronic injuries. The Veteran's limitation of range of motion in December 2020 is likely out of proportion to his reports given the time frame between examinations. With regards to suboptimal effort, there are inconsistencies between the Veteran's passive range of motion and active range of motion and his description of the pain appears to be out of proportion to the findings of the December 2020 examination. It is likely a combination of progression of the Veteran's tendonitis, disuse of his left arm, and suboptimal effort resulted in the range of motion numbers. The examiner was unable to opine, without resorting to speculation, whether progression or suboptimal effort played a more substantial role in the range of motion measurements obtained during the December 2020 examination. The Veteran's VA treatment records demonstrate left upper extremity strength findings of 4/5 in December 2010, 3+ for left elbow flexion and extension in October 2015, December 2015, January 2016, March 2016, and 3+ for left elbow flexion and 4 for left elbow extension in October 2016, November 2016, and December 2016. VA treatment records from 2017 show that the Veteran reported multiple left upper extremity limitations due to a tendon injury in forearm and paresthesias in the entire left upper extremity. The Veteran also underwent physical therapy for his disability. During the December 2015 hearing, the Veteran stated that he has constant forearm pain that worsens with activity. He also indicated that he has flare-ups of pain and pain with pronation and supination. The Veteran also advised that he has reduced range of motion, weakness, and loss of grip strength. The Veteran provided that his left arm disability negatively impacts his ability to work because he cannot hold on to objects. The Board notes the Veteran is competent to report experiencing left arm symptomatology, as the onset, frequency, and duration of symptoms are certainly capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting his left arm symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). At no point during the time period prior to October 9, 2020, did the Veteran have limitation of flexion of his left forearm to 55 degrees, satisfying the criteria for the next higher rating of 40 percent. Id. With regard to functional loss, as cited above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. The Board has considered the competent and credible lay evidence from the Veteran when considering functional loss. However, an increased evaluation beyond the 30 percent disability rating for limitation of flexion is not warranted, on the basis of functional loss due to pain, weakness, decreased strength, and lack of endurance, and other functional loss as described above. The October 2016 VA Medical Opinion Disability Benefits Questionnaire states that the Veteran has a 5-degree range of motion loss on flexion specifically attributable to pain, no additional functional loss with repetition, and no additional functional loss attributable to pain during flare-ups, which does not support an increased disability rating. Therefore, the Veteran's symptoms are supported by pathology consistent with the assigned rating. From October 9, 2020, forward, the Veteran is in receipt of the highest rating available under DC 5206 for limitation of flexion of the forearm. Even with consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell, the evidence does not support a finding of unfavorable ankylosis of the elbow so as to warrant the next higher rating of 60 percent under DC 5205. At worst, the Veteran had limitation of flexion of his left forearm to 20 degrees. Further, a note following the relevant DCs provides that "[i]n all the forearm and wrist injuries, codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss of use of hand." 38 C.F.R. § 4.71a, DCs 5205-5213, Note. Loss of use of the hand is evaluated at 70 percent for the major hand, and 60 percent for the minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5125. Here, from October 9, 2020, forward, the Veteran is in receipt of a 50 percent rating under DC 5206 for limitation of flexion of the forearm; a 30 percent rating under DC 5213 for impairment of supination and/or pronation, left forearm; and a 20 percent rating under DC 8510 for radiculopathy of the left upper extremity, for a combined rating of 70 percent. See 38 C.F.R. § 4.25. As the combined rating for impairment under these provisions and for nerve or muscle impairment ratings related to these disabilities, must not exceed the rating for loss of use of the hand, in this case 70 percent for the major hand, an increased rating over 50 percent for limitation of flexion of the left forearm would render the Veteran's combined rating above 70 percent, and is therefore prohibited by the Note. As such, the Veteran's claim for an increased rating from October 9, 2020, forward must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board recognizes that there is a significant difference between the Veteran's limitation of flexion measured during his June 2019 and January 2020 examinations and his October 2020 and December 2020 examinations that led to questions of inconsistent findings. However, a December 2020 VA Medical Opinion Disability Benefits Questionnaire states that it is likely a combination of progression of the Veteran's tendonitis, disuse of his left arm, and suboptimal effort that accounts for the range of motion numbers. The examiner was unable to opine, without resorting to speculation, whether progression or suboptimal effort played a more substantial role in the range of motion measurements obtained during the December 2020 examination. Thus, the Board finds that the evidence supports the above 50 percent disability rating from October 9, 2020, thereafter. The Board also notes that the Veteran is in possession of a separate 30 percent disability rating for impairment of supination and/or pronation, left forearm, effective January 28, 2010 under Diagnostic Code 5024-5213. The assignment of separate disability ratings for these limitations of motion does not violate the rule against pyramiding. Cf. VAOPGCREC 9-2004; VBA Manual, III.iv.4.A.1.a (advising that the principle set forth in VAOPCGREC 9-2004 applies to evaluating loss of motion of the elbow and forearm under Diagnostic Codes 5206, 5207, and 5213). He has not expressed any dissatisfaction or disagreement with the assigned 30 percent rating. Further, the evidence contained in the Veteran's claims folder does not support the assignment of a separate, compensable rating under DC 5213 during the appellate period prior to January 28, 2010, as there was no evidence of limitation of impairment of supination and/or pronation of the left forearm prior to that time. In sum, the preponderance of the evidence demonstrates that the Veteran's chronic extensor tendonitis of the left forearm does not warrant a disability rating in excess of 30 percent prior to October 9, 2020. Further, the Veteran's claim for an increased rating in excess of 50 percent from October 9, 2020, forward must be denied as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994). 2. Entitlement to a TDIU due to service-connected disabilities is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. In Ray v. Wilkie, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Throughout the appellate period, the Veteran's service-connected disabilities include the following: chronic extensor tendonitis of the left forearm rated as 30 percent disabling prior to October 9, 2020, and as 50 percent disabling thereafter; impairment of supination and/or pronation, left forearm, rated as 30 percent disabling as of January 28, 2010; degenerative joint disease, cervical spine, rated as 10 percent disabling prior to March 21, 2016, and as 20 percent disabling thereafter; radiculopathy left upper extremity rated as 20 percent disabling as of March 21, 2016; tinnitus, rated as 10 percent disabling as of November 15, 2013; keratoconjunctivitis, rated as noncompensable; and hearing loss, left ear, rated as noncompensable. His combined disability rating is 40 percent from February 29, 2008 to January 27, 2010; 60 percent from January 28, 2010 to March 20, 2016; 70 percent from March 20, 2016 to October 8, 2020; and 80 percent from October 8, 2020, forward. The percentage requirements for schedular consideration of entitlement to a TDIU rating have been satisfied as of January 28, 2010. The Veteran's service-connected orthopedic disabilities, which are considered as one disability for TDIU purposes, had a combined rating of 60 percent as of that date. For the appellate period prior to January 28, 2010, the schedular requirements for a TDIU were not satisfied. Regardless, if the schedular requirements for a TDIU rating are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). For the reasons that follow, the Board finds that the Veteran's service-connected disabilities have not produced unemployability. The evidence of record shows that the Veteran has been gainfully employed throughout the appellate period. A VA treatment note dated February 28, 2008, as well as the September 2008 VA examination report, show that the Veteran reported that he had retired from the Post Office as Postmaster and now worked at a minimarket/gas station. During his December 2015 hearing, the Veteran testified that he was working. A VA treatment noted dated in March 2016 showed that he was working as a senior sales representative at the minimarket/gas station, as well as at a fast food restaurant working the night shifts. In January 2017, it was noted that he was a sales associate at a minimarket, a job that required him to be constantly on his feet. Further, the Veteran Readiness and Employment (VR&E) documents show that the Veteran retired from the United States Postal Service in December 2007, was employed full-time as of a November 2009 Case Note, was cut to 27 hours a week in December 2009, and was working more than 40 hours per week as of November 2010. In July 2019, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which he provided that he has been employed full-time as a sales associate at market since September 2010 with a monthly income of $2,300. A VA Nutrition Note dated November 20, 2019, shows that the Veteran was starting a new job. He would be driving instead of working at the convenience store. On May 26, 2020, he reported working for alternative transportation for VA, though he had not been working since March 2020 due to Covid. However, on VA examination in December 2020 he stated that he was again working for alternate transportation, driving a wheelchair van. Pursuant to the Board's September 2020 remand, in October 2020 the RO requested that the Veteran submit an updated VA Form 21-8940,Veterans Application for Increased Compensation Based on Unemployability. Unfortunately, he did not reply. The duty to assist is not a one-way street. If a Veteran wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Where the evidence establishes that a veteran is gainfully employed on a full-time basis, a TDIU cannot be granted during this period as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16(b) (reflecting that, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). Although the Veteran's service connected disabilities certainly affect his employability, the preponderance of the evidence shows that he was nevertheless able to maintain gainful employment throughout the appellate period. The evidence thus fails to establish that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation . As such, his claim for the award of a TDIU is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean Mussey, 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.