Citation Nr: 1141990 Decision Date: 11/10/11 Archive Date: 11/21/11 DOCKET NO. 08-20 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder of the right forearm (claimed as a right forearm disorder), to include as due to herbicide and sun exposure. 2. Entitlement to a rating in excess of 20 percent for service-connected residuals of left elbow injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Veteran testified at a local RO hearing before the undersigned Veterans Law Judge sitting at St. Petersburg, Florida. A transcript of that proceeding is of record. Additional evidence was received at that hearing and initial RO consideration of that evidence was waived in writing. In a March 2010 decision the Board granted service connection for bilateral hearing loss, tinnitus, and residuals of melanoma of the right side of the face but denied service connection for a sleep disorder, a right shoulder disorder, and prostate cancer claimed as due to exposure to herbicides. That decision also granted a rating of 10 percent for residual scar due to shell fragment wound of the right hand and a rating of 10 percent for residual scar due to shell fragment wound of the right arm but denied a rating in excess of 10 percent for residual scar due to shell fragment wound of the left leg. The March 2010 Board decision remanded claims of service connection for right eye disorder and for a right forearm disorder (reclassified herein as a skin disorder of the right forearm), claimed as due to herbicide exposure and inservice sun exposure. That decision also remanded a claim for a rating in excess of 20 percent for service-connected residuals of left elbow injury. Subsequently, a June 2011 rating decision granted service connection for a right eye condition, which was assigned an initial 10 percent disability rating effective February 6, 2006. This grant of service connection is a complete grant of the benefit sought and, thus, that matter is no longer before the Board. As there is no jurisdiction conferring Notice of Disagreement (NOD) as to the downstream elements of effective dates or compensation level, no such issues are in appellate status. The issue of entitlement to a rating in excess of 20 percent for service-connected residuals of left elbow injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had service in the Republic of South Vietnam during the Vietnam Conflict. 2. A chronic skin disorder of the right forearm first manifested many years after service and is not causally related to an incident of service, including sun exposure and exposure to herbicides, nor is it proximately due to or the result of service-connected disability or combination of service-connected disabilities. CONCLUSION OF LAW A skin disorder of the right forearm was not incurred in or aggravated by active service, skin cancer did not manifest to a compensable degree within one year after service, and a skin disorder of the right forearm is not presumptively due to inservice herbicide exposure, and so may not be presumed to have been so incurred, and is not proximately due to or aggravated by a service-connected disability or service-connected disabilities. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide. 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VCAA notice is intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA notified the Veteran of the VCAA requirements by a letter dated in February 2006, prior to the November 2006 rating decision which is appealed. This letter informed the Veteran of the types of information and evidence not of record needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. It also notified him of the division of responsibility between the Veteran and VA for obtaining that evidence; specifically, that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. In September 2007 and July 2008, VA provided the Veteran notice pertinent to the downstream disability rating and effective date elements of a claim for service connection, as required by Dingess. Thereafter, and following the March 2010 Board remand, the Veteran was furnished a Supplemental Statement of the Case (SSOC) in June 2011. See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed.Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004). Accordingly, any defect as to the notice and timing was remedied and thus results in no prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran's service treatment records (STRs) are on file, as are his VA medical records. The RO has also obtained identified private clinical records. The Veteran testified at an October 2009 travel Board hearing in support of his claim. Additionally, he was afforded a VA nexus examination in September 2010, pursuant to and in compliance with the March 2010 Board remand. Generally see 38 C.F.R. § 3.159(c)(4) and McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Stegall v. West, 11 Vet. App. 268 (1998). Also, after the Board remand additional private clinical records were received. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background The June 1963 examination for entrance into the U.S. Marine Corp Reserves and the September 1963 examination for immediate active duty in the U.S. Marine Corp Reserves revealed that the Veteran had multiple scars, including a 1 1/2 inch scar on his right forearm. The March 1968 examination for service separation reported that the Veteran had what was reported to be a shrapnel scar of the right forearm. On VA examination in 1969 the Veteran's skin was normal and without lesions. Information of file shows that the Veteran was awarded the Purple Heart for being wounded in action in July 1967, sustaining shrapnel wounds of the right hand and arm. Private clinical records show that in February 2001 the Veteran was noted to have a significant history of sun exposure. He had some lesions of the right forearm and had that were some "warty SK's" [seborrheic keratoses]. A skin biopsy of the Veteran's right cheek in 2001 revealed melanoma and, in 2004, a biopsy of the skin of the left trapezius revealed squamous cell carcinoma. Other skin biopsies from multiple areas revealed diagnoses of, in part, seborrheic keratosis and squamous cell carcinoma. A biopsy in June 2005 revealed proliferative actinic keratosis of the Veteran's right forearm. A May 2001 private clinical record states that the Veteran had malignant melanoma of the right check, for which he had had resection and cheomosurgery. He had not had prior skin cancers. He had a long history of sun exposure. He had blond hair when he was younger and blue eyes. He grew up in Florida and had had a lot of sun exposure, both recreational as well as occupationally. He had worked as a lineman for the telephone company for about 20 years. He was also in Viet Nam for 15 months where, he said, he had frequent sunburns. A January 2005 VA outpatient treatment (VAOPT) record shows that the Veteran had cut an extensor tendon of the right 3rd "MP" area a few years ago. Also in January 2005 it was noted that he was fair skinned with generalized sun damage on exposed skin of the forearms and face. He had scattered scars from prior biopsies at numerous sites on his arms. In February 2006 he wanted service connection and treatment for blackheads which he reported having had since military service. He thought that they were "chloracne." Interestingly, this was not mentioned at the time of an Agent Orange visit last year, although he had many other skin signs that he was convinced were associated with Agent Orange exposure. He saw a local dermatology every six months. On official orthopedic examination in August 2006 the Veteran reported that his shell fragment wound of the right forearm was asymptomatic. Private clinical records show that in February 2007 the Veteran had squamous cell carcinoma excised from his right forearm. Dr. A. B. C. reported in a November 2009 statement that he had treated the Veteran since 2001. The Veteran had multiple skin cancers. The Veteran exhibited some of the worse sun damage that the physician had seen in his 25 years of practice. The Veteran stated that much of his sun damage occurred when he was in the military. At the November 2009 travel Board hearing the Veteran testified that during military service, in the process of being shipped from one duty station to another, while onboard ships he had been exposed to the hot sun for extended periods without any skin protection. Pages 4 and 5 of the transcript of that hearing. This had caused him to develop a melanoma on the right side of his face which required extensive treatment, including radiation therapy. Page 5. He had developed skin cancer on his arm. Page 6. He had also been extensively exposed to the sun in Guantanamo Bay and in Vietnam. Pages 7 and 8. On VA examination in September 2010 the Veteran's claim files were reviewed. It was noted that the STRs had revealed the presence of burn and shrapnel scars of the right forearm on examination for separation in March 1968 but that the remainder of the STRs were silent regarding a skin disorder of the right forearm. The Veteran related that he had noticed a bump on his right forearm during service while onboard a ship in 1966. He had thought that it was a boil but it had kept getting sorer and became more swollen. He then had the onset of "little blackheads" in the area. Periodically since then the area became sore and "festers up." This occurred every 2 to 3 months and lasted for 1 week. The course of the condition was that the bumps were present constantly and only intermittently became festered. The local skin symptoms were pain, soreness, and sensitivity to touch. There were no systemic symptoms. In the past 12 months he had applied Neosporin cream which had had obtained over-the-counter. This was neither a corticosteroid nor an immunosuppressive medication. He also applied "Carmex" topically 3 times daily. On physical examination on the medial aspect of the mid-portion of the right forearm there was a 1 cm. area containing enlarged pores and which appeared to be the previous sites of "comedos." The skin was just barely thickened in this area and there was no rash, erythema, pustules, macules or papules. The percent of total body area involved was less than 1 percent and no exposed surface was affected. A biopsy was not indicated. The diagnosis was a patch of previous comedos. A more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. It was additionally commented that there was no scarring or disfigurement due to this skin condition and the taking of photographs was not indicated. There was no functional limitation due to this skin condition. As to whether it was more likely than not, less likely, or at least as likely that the condition was related to military service, the examiner opined that the Veteran's skin abnormality was less likely as not related to his active military service because the service records were silent regarding any type of skin lesion remotely similar to that found on the current examination. There was no record in the STRs of a complaint similar to the findings on the current examination. Essentially, there was no objective evidence that this skin abnormality had its onset during active service. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). If some of these elements cannot be established, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. In other words, 38 C.F.R. § 3.303(b) provides two alternative methods of establishing service connection: (1) chronicity or (2) continuity of symptomatology. Certain chronic diseases, including cancer (including any skin cancer), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. The Federal Circuit in Haas found that VA's interpretation as requiring physical presence within Vietnam, or the territorial waters of Vietnam in order to be entitled to the presumption of herbicide exposure is not plainly erroneous or inconsistent with the language of 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Analysis Initially the Board notes that the Veteran is service-connected for residual shell fragment wound scarring of the right arm and right hand, as well as for a residual shell fragment wound scarring of the left leg, and each is assigned a 10 percent disability rating. He is also service-connected for residuals of melanoma of the right side of the face, as well as a right eye disorder associated with the service-connected residuals of melanoma of the right side of the face. It is undisputed that the Veteran had actual military service in the Republic of Vietnam. This is consistent with the Board's March 2010 decision in which it was concede that he had served in the Republic of Vietnam. Likewise, it is undisputed that the Veteran's claimed skin condition of the right forearm is not chloracne and, so, any other skin disease which he may now have is not one which is listed as being, under the law, presumptively due to inservice exposure. Likewise, there is no competent medical evidence that the claimed disabilities are actually caused by exposure to Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e); Combee, 34 F.3d 1039 The Board does not doubt that the Veteran underwent significant sun exposure during active service but it is also clear that the current skin disorder of the right forearm was not diagnosed until many years after the Veteran's military service and his inservice herbicide exposure and sun exposure. However, the question remains whether the Veteran now has a skin disorder which is otherwise shown to be due to his inservice herbicide exposure, sun exposure, or is otherwise related to his military service. The Veteran has submitted a statement from a treating physician that the Veteran had extremely severe sun damage and related the history reported by the Veteran that much of the sun damage occurred in military service. As to this, the focus of that physician's statement was on a melanoma of the Veteran's right cheek but more importantly, that private physician did not specifically relate the skin disorder of the Veteran's right forearm to sun damage which occurred during active service. Likewise, that physician did not note the Veteran history, related elsewhere, of having had extensive sun exposure prior to and after military service. Also, that private physician did not report that the Veteran had dermatological symptoms during active service or continuous dermatological symptoms following military service. In this regard, the 2010 VA examiner recorded the Veteran's reported history of having continuously had dermatological symptoms since military service, and that physician also reviewed the Veteran's STRs. The review of the STRs was crucial to the VA examiner's opinion because it was specifically observed by the VA examiner that the STRs were silent as to any type of skin lesion remotely similarly to those found on that VA examination. With respect to continuity of symptomatology, the Board does not doubt that the Veteran had extensive sun exposure during active service, just as he had prior to and after his military service. However, just because the Veteran had significant sun exposure during service does not automatically mean there was injury caused thereby. Thus, while not necessarily disagreeing that the Veteran had significant sun exposure during service, the Board rejects the notion that such exposure during service, as opposed to sun exposure prior to and after military service, necessarily resulted in dermatological damage. The Board must assess the competency and credibility of lay statements regarding inservice or continuous postservice symptomatology. Lay evidence can be competent to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), or (2) the layperson is reporting a contemporaneous medical diagnosis (but see Robinette v. Brown, 8 Vet. App. 69, 77 (1995) when the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through layman's sensibilities, such evidence is too attenuated and inherently unreliable to constitute medical evidence) or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, information simply recorded by a medical examiner and unenhanced by any additional medical comment, and thus not adding any medico-evidentiary value to the lay history through medical expertise, does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Veteran's belief and statement of the onset of a chronic skin disorder of the right forearm beginning during service cannot be given significant probative weight when it is considered with the absence of corroborating medical or contemporaneous lay evidence of continuous symptomatology after service, the evidence of postservice exposure to sunlight, and the recent opinion of the VA examiner. Moreover, it is clear that the Veteran has related a different history relative to postservice sun exposure to a private clinical source in 2001. This stands in contrast to the history he related to the treating physician, as related in that physician's November 2009 statement. This lack of consistency in the history related by the Veteran detracts from the probative value of the history upon which the treating physician relied in the November 2009 statement and it also detracts from the Veteran's credibility of having had continuous dermatological symptoms of the right forearm since his military service and inservice exposure to sunlight. Also, to the extent that the Veteran asserts continuity, here, the evidence of continuity fails not because of the lack of medical documentation but because the assertion of continuity are not credible since he did not relate having had dermatological symptoms of the right forearm when he first underwent an Agent Orange evaluation. Likewise, on VA examination in 1969 no dermatological abnormality was found. Overall, the absence of documented complaints or treatment for decades following military discharge is more probative than the Veteran's current recollection as to symptoms experienced in the distant past. Therefore, continuity has not here been established, either through the competent medical evidence or through his statements and testimony. As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or testified that he was given a diagnosis during service of a chronic, or even acute, dermatological disorder of the right forearm during service or a diagnosis of skin cancer of the right forearm within one year of service discharge in 1968 (the 2nd circumstance under Jandreau). As to the circumstance of the Veteran's description of symptoms supported by a later diagnosis of inservice incurrence of a skin disability, or manifestation of a skin cancer within the first postservice year, by a medical professional (the 3rd circumstance under Jandreau), the statement of his treating physician in 2009 only suggested a connection of current skin disability of the right forearm to inservice exposure to sunlight, without making a definitive diagnosis. Moreover, the probative value afforded that opinion is diminished for the reasons explained above, in contrast to the opinion of the 2010 VA examiner. A medical opinion predicated upon an uncorroborated clinical history related by a veteran can only be as good as the history relied upon. The Board does not have to accept as probative a medical assessment which appears to be based solely on a veteran's reported medical history. See Swann v. Brown, 5 Vet. App. 229 (1993); See also Wilson v. Derwinski, 2 Vet. App. 614 (1992) and Wood v. Derwinski, 1 Vet. App. 190 (1991). Weighing the contrasting medical opinions, the Board is persuaded that the opinion of the VA examiner is more persuasive. Thus, the Board concludes that the Veteran's current skin disorder of the right forearm is in keeping with the opinion of the VA examiner and is unrelated to military service. Also, the evidence does not establish, or even suggest, that any current skin disorder of the right forearm was caused by or aggravated by any other service-connected disorder that the Veteran now has, including other service-connected dermatological disorders. This includes the possibility of any dermatological disorder of the right forearm being a site from which melanoma of the right cheek could possibly have metastasized. The Board has also considered whether service connection for a skin disorder of the right forearm is warranted on a presumptive basis. Under 38 C.F.R. § 3.309(a), cancer, including skin cancer, is regarded as a chronic disease. However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). Such is not the case here. As the evidence of record fails to establish any clinical manifestations of skin cancer manifesting to a degree of 10 percent or more within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. Accordingly, service connection for a skin disorder of the right forearm, claimed as due to herbicide and sun exposure, is not warranted. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder of the right forearm, claimed as due to exposure to herbicides, is denied. REMAND The STRs show that the Veteran had a history of an inservice dislocation of the left elbow and, after another injury, X-rays in May 1965 revealed a loose body on the radial side of the left elbow joint and an avulsion type fracture of the left lateral epicondyle. When hospitalized in June 1965 it was reported that an X-ray revealed calcification and bone formation in the lateral-collateral ligament and a malunion of the lateral epicondyle but no loose bodies were seen. He underwent an arthrotomy with excision of osteocartilagenous bodies from the left elbow during hospitalization in May and June 1966. At the November 2009 travel Board hearing the Veteran testified that he had had surgery on his left elbow, for the second time, just two years ago which was followed by physical therapy. Page 21. He was right handed but now had trouble gripping objects with his left hand. Page 23. As noted, the March 2010 Board decision remanded the claim of entitlement to a rating in excess of 20 percent for service-connected residuals of left elbow injury. At that time records of an upcoming orthopedic appointment for continued treatment of his left elbow disability, as to which the Veteran testified, were to be obtained. In this regard, VAOPT records show that in September 2007 he had a left ulnar nerve transposition, for left cubital syndrome, and removal of a loose body. Also, additional VAOPTs received after the travel Board hearing reflect evaluation and treatment for left elbow disability. A December 2009 left elbow X-ray revealed an old healed fracture deformity of the distal humerus, osteoarthritis of the radiohumeral head with marked asymmetric joint space narrowing which was probably related to an old healed fracture of the radial head, and a possible old healed fracture deformity of the coronoid process of the ulna. Another December 2009 VAOPT record states that the Veteran has obvious disuse atrophy of the left upper limb. The 2010 Board remand also noted that from his testimony it was unclear whether he had been seeking treatment from VA sources or from a private physician. So the Veteran was to be requested to provide information, and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the left elbow claim, to include providing the Veteran with any necessary authorization forms and identify all VA facilities where he has received treatment for his left elbow. A deferred rating action of June 13, 2011, noted that adjudication of the claim for a rating in excess of 20 percent for left elbow injury residuals was not done, pending a VA rating examination. From the record on appeal, it does not appear that such a rating examination was conducted. Moreover, the June 17, 2011, Supplemental Statement of the Case (SSOC) did not address this issue. Thus, the issue of entitlement to a rating in excess of 20 percent for service-connected residuals of left elbow injury is remanded to ensure compliance with the March 2010 remand as to clarification and obtaining of records, and to ensure that a VA rating examination is conducted. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative, a letter requesting that the Veteran provide information, and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the left elbow claim. In particular, the RO should specifically request that the Veteran provide authorization to enable it to obtain copies of medical records from private health care providers not already associated with the record and identify all VA facilities where he has received treatment for his left elbow. 2. The RO should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The Veteran should be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his left elbow injury residuals. If needed, the Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should be requested to identify any objective evidence of pain, painful motion, or functional loss due to pain as a result of the service-connected left elbow disorder. The extent of any weakened movement, excess fatigability or incoordination associated with these disabilities should be specifically assessed. The examiner should also express an opinion as to whether there would be additional limits on functional ability during flare-ups (if the Veteran describes flare-ups), and if feasible, express this in terms of additional limitation of motion during flare-ups. If not feasible, the examiner should so state. 4. After undertaking any additional notice or development deemed appropriate, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs