Citation Nr: 1317224 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 03-26 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to May 18, 2009, for left olecranon bursitis, status post excision, exostosis. 2. Entitlement to a rating in excess of 20 percent since May 18, 2009, for left olecranon bursitis, status post excision, exostosis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from March 1958 to April 1960. He died in November 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2005, the Veteran testified at a hearing before a Veterans Law Judge who has since left the Board. A transcript of the hearing has been associated with the claims file. The Board remanded the left elbow disability claim as well as a claim for service connection for hypertension in May 2005 for further development and consideration. Following the Board's May 2005 remand, the Appeals Management Center (AMC) in an August 2005 rating decision increased the disability rating for the Veteran's left olecranon bursitis, status post excision exostosis, to 10 percent, retroactively effective from March 7, 2002, the date of the Veteran's increased rating claim. The Veteran continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating the veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). Following the additional development, the Veteran's appeal was returned to the Board. In a September 2006 decision, the Board denied the Veteran's claims for service connection for hypertension and for a disability rating in excess of 10 percent for his service-connected olecranon bursitis of the left elbow. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2007, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. In November 2007, the Board duly notified the Veteran that the Board no longer employed the VLJ that had conducted the March 2005 Board hearing and that he had the right to another Board hearing. Later that same month, the Veteran indicated that he did not want an additional hearing. In December 2007, the Board remanded the Veteran's appeal for further development consistent with the July 2007 JMR. Following the additional development, the Veteran's appeal was returned to the Board. The Board denied the Veteran's appeal in an August 2008 decision. The Veteran thereafter appealed the August 2008 Board decision to the Court. In an Order dated in August 2009, the Court granted a JMR by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. A subsequent August 2009 rating decision created staged disability ratings by increasing the disability rating for the Veteran's left olecranon bursitis, status post excision exostosis, to 20 percent, retroactively effective from May 18, 2009, the date of the Veteran's subsequent increased rating claim. The Veteran continued to appeal, requesting an even higher rating. See AB, 6 Vet. App. at 38-39. The Veteran's claims file was then returned to the Board. In an April 2010 decision, the Board dismissed the Veteran's appeal due to his recent death in November 2009. In April 2010, the appellant submitted a Motion for Substitution in the Veteran's appeal. The Motion was granted by the RO in March 2011, and the case was returned to the Board for further development consistent with the August 2009 JMR. In May 2011, the Board granted service connection for hypertension and again remanded the left elbow claim for a VA medical opinion. The RO assigned a 10 percent disability evaluation for the Veteran's hypertension in a July 2011 rating decision to which a timely notice of disagreement with the initial rating assigned was received in May 2012. Also in May 2012, the left elbow claim was remanded yet again since VA medical opinions in September 2011 and November 2011 were not adequate. A statement of the case for an initial rating in excess of 10 percent for hypertension was issued in February 2013. As the appellant has not filed a substantive appeal, the Board concludes that only the left elbow disability claim remains on appeal. The appeal is REMANDED to the VA RO. VA will notify the appellant if further action is required. REMAND Regrettably, yet another remand is necessary. The Board sincerely regrets any additional delay as the left elbow rating claim has been remanded several times, but finds that the Board's prior remand directives have still not been complied with. As noted in the Board's May 2012 remand, disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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, joints 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). The regulation does not specifically mention flare-ups. However, in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court determined that 38 C.F.R. § 4.40 specifically refers to disability due to lack of normal "endurance", provides for a rating to be based on "functional loss . . . due to . . . pain", and states that "a part which becomes painful on use must be regarded as seriously disabled." (Emphasis by Court). Furthermore, section 4.40 provides that "[i]t is essential that the [rating] examination . . . adequately portray the . . . functional loss." (Emphasis by Court). The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be 'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. DeLuca at 205. It must be noted that while the Court expanded the definition of functional loss to include flare-ups, it recognized the difficulty in converting that information to the rating criteria based on limitation of motion. Thus, it provided that such determinations should be portrayed in terms of the degree of additional range-of-motion lost due to pain on use or during flare-ups only "if feasible." It is a very basic principal of Veterans' Law that VA must base its decisions on medical evidence. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Following DeLuca, there was some question among members of the medical community as to whether the lawyers knew what they were asking of the doctors and whether it was actually possible to turn a claimant's description of flare-ups into an opinion as to additional degrees of motion lost. While some examiners attempted this conversion, others routinely stated that it was not possible to do so without resort to speculation. In Jones v. Shinseki, 23 Vet. App. 382, 387 (2010) the Court explained that an examiner should not invoke the phrase "without resort to mere speculation" as a substitute for full consideration of all pertinent and available medical facts to which the claimant is entitled. The use of such phrase requires a complete explanation as to why an opinion cannot be rendered. In this case, the Board has remanded this issue multiple times for an adequate opinion as to the functional loss experienced by the Veteran during flare-ups. The last physical examination occurred in July 2009. An opinion from that examiner in September 2011 indicates that additional limitation due to flare-ups could not be determined without resorting to mere speculation. An opinion from a different examiner in November 2011 shows that the range of motion lost during flare-ups could not be determined because the Veteran was not experiencing an acute flare-up during the physical examination conducted in July 2009. Finding these opinions inadequate, the case was remanded by the Board in May 2012. Pursuant to the Board's remand, an opinion from the July 2009 examiner obtained in September 2012 indicates that the examiner believed that the Veteran's condition should be considered moderate-severe. An additional opinion from that examiner in November 2012 essentially reiterates the previous inadequate November 2011 opinion. The November 2012 opinion shows that as there were no acute flare-ups reported or recorded on examination, the examiner was unable to estimate the range of motion loss of the left elbow. Therefore, they stated that were unable to assign any range of motion loss during a flare-up and to assign any value would be purely speculative. As discussed in the Board's May 2012 remand as to the inadequacy of the November 2011 opinion that flare-ups could not be assessed because they were not seen on examination, for most examinations, the examiners will not witness the flare-ups. In most cases, to comply with DeLuca, the examiner will have to consider the limited information available. There is information available. The evidence includes clinical records and whether a claimant has sought treatment during flare-ups or reported or described flare-ups during regular check-ups is significant. The evidence includes the examination findings, so the description of flare-ups should be consistent with the objective findings. There is also the examinee's description of the flare-ups and the examiner can assess the credibility of these reports. It is not expected that the examiner would take this information and render an opinion with the medical certainty required for treatment. Rather, the Board is asking the examiners to take the information available, add their own medical knowledge and experience, and to the best of their ability as a medical professional, to portray the Veteran's flare-ups in terms of the degree of additional range-of-motion lost. Correspondence received from the representative in May 2013 shows that the Veteran's pertinent treatment records documented flare-ups. For example, the Board notes that a record dated in November 2003 shows that the Veteran was treated for left elbow pain and had flexion of 70 degrees and extension of three degrees. The representative argued that all of the opinions from the July 2009 examiner regarding functional loss experienced by the Veteran during flare-ups were insufficient. Considering the discussion above, the Board agrees with the representative. In this case, the Board has repeatedly remanded to obtain an adequate medical opinion. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, yet another remand is necessary so that an adequate medical opinion from the July 2009 VA examiner regarding functional loss experienced during flare-ups can be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion from the July 2009 VA examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner is requested to review the record, and offer an opinion as to the severity of the Veteran's service-connected left olecranon bursitis, status post excision, exostosis. The examiner should portray the flare-ups reported by the Veteran in terms of the degree of additional range of motion lost. In providing such opinion, the examiner should review the Veteran's treatment records showing left elbow complaints, to include the November 2003 record showing a limitation of motion. The Board is cognizant that a flare-up was not shown during the July 2009 VA examination; however, the examiner should provide an opinion consistent with the Veteran's treatment records, March 2005 testimony, and other evidence as to the severity of his flare-ups. In as much as the Veteran is deceased, the requested opinion should reflect the application of the examiner's training and experience to the information available. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 2. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 3. Then, readjudicate the issues on appeal. If any benefit remains denied, the appellant and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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. 2012). _________________________________________________ MICHAEL MARTIN 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) (2012).