Citation Nr: 0103426 Decision Date: 02/05/01 Archive Date: 02/14/01 DOCKET NO. 99-18 070A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for residuals of a left forearm fracture, including excision of an olecranon bursa, arthritis, and limitation of motion in the left forearm, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION Review of the claims file that includes information from BIRLS reflects that the appellant had active military service from January 1944 to May 1947 and from September 1950 to August 1952. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). Evidence in the claims file indicates that the file was reconstructed in December 1991. An August 1996 rating decision noted that the appellant was service connected for residuals of a fractured left forearm, which were rated noncompensable. REMAND Service medical records show that the appellant provided a history of a broken left arm with open reduction, bone graft, and insertion of a silver plate at the September 1950 entrance examination for his second period of active military service. A September 1950 X-ray of the left forearm bones revealed evidence of old fractures of the middle and upper third of both bones, osteoarthritic changes in the left elbow, and resection of the left radius head. An August 1952 separation examination noted a history of a left arm fracture in 1948, with no symptoms, and indicated that the appellant was right-handed. VA X-rays of the left forearm in June 1996 revealed old fractures of the proximal radius and middle third of the ulna with a surgical screw in place, and evidence of posttraumatic arthritis in the left elbow. Private medical records show that the appellant was treated in June 1998 for complaints of left elbow problems, at which time examination revealed significant arthritis in the left elbow with a lack of 40 degrees of full extension in the elbow. He received steroid injections. Shortly thereafter, in July 1998, the appellant underwent complete excision of a large fibrotic olecranon bursa in the left elbow. While a December 1998 notation in the private medical records indicated that the appellant was still having problems with the left elbow, another December 1998 notation indicated that the elbow looked fine. A June 1999 medical record from T. Kincer, M.D., diagnosed rheumatoid arthritis. Another June 1999 medical statement, from D. P. Herrick, M.D., indicated that the appellant was experiencing persistent pain in his left elbow, which was complicated by rheumatoid arthritis; the impression was lateral epicondylitis. The appellant received an injection of Marcaine and Depo Medrol in the left lateral epicondyle, and was provided with a TENS unit. An August 1999 medical record reported a history of rheumatoid arthritis for several years with deformities of the wrist, fingers, elbows, and other large joints. In August and September 1999 medical statements, Dr. Kincer diagnosed the appellant with left arm neuropathy secondary to nerve entrapment. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2. An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joint and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part, which becomes painful on use, must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a). The United States Court of Appeals for Veterans Claims (Court) has held that when the Board believes the medical evidence of record is insufficient it may supplement the record by ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Because the medical evidence indicates that the appellant has continued to experience left elbow pain and problems subsequent to the July 1998 left elbow surgery, and there has been no VA compensation examination since that surgery to ascertain the degree of disability, including any limitation of motion, associated with the appellant's service-connected left forearm/elbow disorder, the Board believes a remand is necessary in order to obtain additional medical evidence and to insure that the appellant receives his due process rights. Accordingly, the claim must be remanded for the following actions: 1. The RO should schedule the appellant for a VA orthopedic examination to determine the severity of disability related to his service- connected residuals of a left forearm fracture, which include excision of an olecranon bursa, arthritis, and limitation of motion in the left forearm. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. All indicated special studies pertaining to the left forearm/elbow, including range of motion and strength testing, should be performed. The examiner should be requested to identify all current left forearm/elbow disability and to express an opinion as to the amount of functional impairment attributable to the service-connected left forearm/elbow disability as a result of pain and other symptoms. See DeLuca, supra. The examiner should provide complete rationale for all conclusions reached. 2. The appellant should be advised of the provisions set forth at 38 C.F.R. § 3.655(b) regarding failure to report for scheduled VA examinations. 3. The RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board expresses its appreciation in advance to the RO for its assistance in developing the requested evidence and trusts that this development will be attended to in an expeditious manner as mandated by the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes) and VBA's Adjudication Procedure Manual, M21-1, Part IV. After the above requested actions have been completed, the RO should review the appellant's claim. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative, and they should be afforded the appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant receives his due process rights. No opinion, either legal or factual, is intimated by this REMAND as to the merits of the appellant's claim. The appellant is not required to undertake any additional action until he receives further notification from VA. M. W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).