Citation Nr: 1122302 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 07-38 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left elbow disorder, to include residuals of an injury. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969, to include service in Vietnam from February 1968 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Through its decision of April 2009, the Board remanded that claim to the VARO for additional evidentiary development, including specifically a VA medical examination and opinion as to the relationship between a documented inservice left elbow injury requiring closed reduction under general anesthesia and current disablement of the left elbow. Following the RO's attempts to complete the requested actions, the case has since been returned to the Board for further review. This appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND The VA medical examination sought by the Board through its earlier remand was conducted in January 2010. Much of the history noted by that VA examiner is inconsistent with other previously developed evidence and there is no acknowledgement by the examiner of the extent to which the Veteran's left elbow was injured in service. All pertinent records were noted to have been reviewed by the VA examiner in January 2010, but, incongruously, there is no reference in the prepared report to the inservice posterior dislocation involving the left elbow, the closed reduction of that dislocation under general anesthesia in July 1968, or the subsequent, lengthy period of stateside rehabilitation. Rather, the examiner noted only a twisting injury of the left elbow in service requiring casting and postservice complaints involving intermittent numbness of the left hand, with receipt of no surgery or postservice medical treatment. Moreover, the VA examiner directed that various diagnostic testing be undertaken which included an electromyogram (EMG) and nerve conduction studies of the upper extremities, and while much of the requested testing was undertaken, neither the EMG nor the nerve conduction studies appear to have been accomplished. A remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Id. An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Here, not all of the diagnostic testing deemed necessary by the VA examiner in January 2010 was undertaken and Stegall requires that this case be returned to the RO to ensure that such testing be accomplished and the results made a part of the record. In addition, degree to which the Veteran's left elbow was injured and treated in service appears not to have been taken into full consideration by the VA examiner in early 2010, and in order to ensure that a complete medical opinion is obtained which is premised on established facts, return of this case to the examiner for preparation of an addendum to his earlier report is advisable. Accordingly, this case is REMANDED for the following actions: 1. Obtain the results of an electromyogram and nerve conduction velocity testing of the Veteran's upper extremities, which were requested by M. Evans, N.P., on a VA Compensation and Pension examination on January 27, 2010, and, if not yet attempted, those diagnostic studies should be accomplished and the results made a part of the claims folder. 2. Return the report of the VA medical examination conducted on January 27, 2010, to M. Evans, N.P., to permit him to review the claims folder in detail and, in particular, service treatment records denoting inservice dislocation of the left elbow, reduction of that dislocation under general anesthesia, and extended rehabilitation, prior to the preparation of an addendum to his earlier report. That addendum should address the question of the direct or presumed service incurrence of a left elbow disorder. If M. Evans is unavailable or in the event he desires to further examine the Veteran, the Veteran should be accorded an additional VA medical examination at the applicable VA medical facility for evaluation of the nature and etiology of his claimed left elbow disorder. The Veteran's VA claims file must be furnished to M. Evans or his designee for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder and the results of EMG and nerve conduction testing, M. Evans or other VA examiner is asked to address the following question: Is it at least at likely as not (50 percent or greater probability) that any current disability, including arthritis, of the Veteran's left elbow originated in service, within the one-year period immediately after service as concerns arthritis, or is otherwise attributable to the Veteran's military service or any event thereof, including demonstrated left elbow trauma in July 1969? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus as to find against any nexus. More likely and as likely support the contended nexus; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed. If the examiner finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate and the reasons why. 3. Lastly, readjudicate the claim on appeal and if the benefit sought on appeal remains denied or not granted to the Veteran's satisfaction, the Veteran and his attorney should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claim for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional development. No inference should be drawn as to the outcome of this matter by the actions herein requested. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).