Citation Nr: 1331320 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-16 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana Entitlement to an increased rating in excess of 10 percent for residuals of a left elbow fracture. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2009 and December 2011, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of each transcript is of record. In a March 2013 decision, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. REMAND Pursuant to the Board's March 2013 remand instructions, the RO arranged for a VA Disability Benefits Questionnaire (DBQ) examination for elbow and forearm conditions in April 2013. That examination report reflects the VA examiner conducted a thorough examination of the Veteran; however, failed to note all findings necessary for proper adjudication of the matter. Specifically, the VA examiner was requested, as noted in the March 2013 remand instructions and on the March 2013 Compensation and Pension (C&P) Examination Inquiry report, "to make a finding as to whether there is any cubitus deformity present in the Veteran's left elbow as a result of the service-connected residuals of a left elbow fracture." This particular finding is pertinent to the rating criteria for the elbow under 38 C.F.R. § 4.71a, Diagnostic Code 5209. The Board acknowledges that in the April 2013 VA DBQ examination report, the VA examiner notes the Veteran does not have flail joint or joint fracture, which includes consideration of intra-articular fracture (joint fracture) with marked varus or valgus deformity. Nevertheless, such consideration does not specifically note the presence or absence of cubitus deformity in the Veteran's left elbow nor does the examiner address this finding in his concluding remarks at the end of the report. In order to decide the issue on appeal, such consideration should be conducted and reflected in the medical opinion. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on a veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. For this reason, in effort to comply with the March 2013 remand instructions, the Board remands the claim on appeal again for the April 2013 VA examiner (or a suitable substitute) to provide an addendum report in order "to make a finding as to whether there is any cubitus deformity present in the Veteran's left elbow as a result of the service-connected residuals of a left elbow fracture." Accordingly, the case is REMANDED for the following actions: 1. Furnish the Veteran's entire claims file to the VA physician (another exam is not required, unless indicated by the examiner) who conducted the April 2013 VA DBQ examination (or a suitable substitute if that VA physician is unavailable). The VA physician must review all pertinent evidence of record and prepare an addendum opinion in order to make a finding as to whether there is any cubitus deformity present in the Veteran's left elbow as a result of the service-connected residuals of a left elbow fracture A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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). 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. 2013). _________________________________________________ JOHN J. CROWLEY 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) (2013).