Citation Nr: 1602712 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 10-35 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for a left elbow disability, rated as 10 percent disabling prior to January 21, 2014, and 20 percent disabling thereafter. 2. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1979 and from October 1981 to September 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, continued a 10 percent evaluation for a service-connected left elbow disability and denied entitlement to TDIU. This case was previously before the Board in July 2014 when it was remanded for additional development. It has now returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets further delay in this case, but finds that a remand is necessary to further develop the Veteran's claim for an increased rating and respond to his disagreement with the denial of the claim for entitlement to TDIU. The Veteran was provided a VA examination of the left elbow in April 2015, but it is not adequate for rating purposes due to inconsistent findings within the examination report. The examination report includes the results of range of motion tests, but also notes the presence of additional factors contributing to the Veteran's left elbow disability specified as "less movement than normal due to ankylosis, adhesions, etc." An increased rating is possible in this case based on a finding of left elbow ankylosis under § 4.71a, Diagnostic Code 5205 (2015), but the portion of the April 2015 VA examination report specifically pertaining to ankylosis only indicates "no response provided." The Board is therefore unable to determine whether the Veteran currently manifests left elbow ankylosis, and if so, the position at which it occurs. In addition to the confusion regarding whether the Veteran manifests left elbow ankylosis, the Board also notes that the April 2015 VA examiner did not comment on whether the Veteran currently experiences any neurological impairment associated with the service-connected disability. The Veteran underwent a left elbow release/decompression of the radial nerve with a private physician in October 2014. The April 2015 VA examiner acknowledged the past surgery and stated that the procedure was necessary to address neurological impairment of the left radial nerve caused by a bone spur in the left elbow. Unfortunately, the Disability Benefits Questionnaire (DBQ) utilized for the April 2015 elbow examination does not include questions addressing whether the Veteran still experiences neurological impairment due to the service-connected left elbow disability. Another VA examination is therefore required to determine the severity of all manifestations of the left elbow condition. The record also establishes that the Veteran receives treatment for his left elbow disability with a private health care provider. Treatment records from the VA outpatient clinic in Excelsior Springs, Missouri, include a notation in March 2014 that the Veteran receives outside care for his left elbow pain. Additionally, the Veteran submitted the report of his October 2014 elbow surgery demonstrating that the procedure was performed by a private physician. The operative report states that the left elbow was treated with extensive conservative management prior to surgery, but the claims file does not contain any treatment records from this private doctor. Upon remand, efforts must be made to obtain treatment records from any private health care providers who have treated the service-connected left elbow disability during the relevant claims period. Finally, a remand is required with respect to the claim for entitlement to TDIU. The claim was denied in a September 2015 rating decision and a timely notice of disagreement (NOD) was received from the Veteran. A SOC has not been issued and remand is therefore required to provide the Veteran a SOC addressing the claim. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all private health care providers who have treated his left elbow disability since March 2011. In addition, ask the Veteran to complete medical release forms for each identified provider, to specifically include the physician who performed his October 2014 surgery, Dr. Paul F. Nassab at Drisko, Fee, and Parkins Orthopaedics in Kansas City, Missouri. If valid release forms are received, obtain records of treatment from the identified private physicians. All efforts made to obtain the records should be documented in the claims file, and if any records are unavailable, the Veteran should be informed and provided the opportunity to submit the requested records himself. 2. Then, schedule the Veteran for a VA examination to determine the current severity of all manifestations of the service-connected left elbow disability, to include any associated neurological impairment. The claims file must be provided to the examiner and reviewed in conjunction with the examination. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the left elbow. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. The rationale for all opinions expressed should be provided. 3. Issue a SOC addressing the claim for entitlement to TDIU. If the Veteran perfects the appeal, return the claim to the Board. 4. After completing the action detailed above, readjudicate the claim for an increased rating for a left elbow disability with consideration of all the evidence of record. If the benefits sought are not granted in full, return the case to the Board if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).