Citation Nr: 1613361 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 10-00 105 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right elbow disorder, claimed as tendonitis. 2. Entitlement to service connection for a left elbow disorder, claimed as tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1993 to December 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO denied service connection for, inter alia, a right and left elbow disability, each claimed as tendonitis. In January 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA form 9, Appeal to the Board of Veterans' Appeals) in December 2009. The Board notes that the Veteran was granted service connection for bilateral cubital tunnel syndrome, otherwise known as bilateral ulnar nerve entrapment, in the June 2007 rating decision. In July 2013, the Board remanded the Veteran's claims for service connection for right and left elbow disorders for further development. After accomplishing further action, the agency of original jurisdiction (AOJ) continued the denial of each claim (as reflected in a November 2013 supplemental SOC (SSOC)), and returned these matters to the Board. This appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For reasons expressed below, the claims on appeal are, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board's review of the claims file reveals that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters . A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in February 2007 to obtain information and opinion as to current disability and e etiology of claimed his right and left elbow tendonitis. The examiner found that the Veteran did not have a right or left elbow disability. In adjudicating the Veteran's right and left elbow disorder claims, the RO included the Veteran's triceps as part of his right and left elbow, as the triceps is an extensor muscle in the elbow. See November 2009 Statement of the Case. In the July 2013 remand, the Board noted that the Veteran's service treatment records dated in February, March, and July 2006 document treatment for a diagnosis of bilateral triceps tendonitis, but found that the evidence of record was unclear as to whether the Veteran's tendonitis of the right and left elbow existed at the time he filed his claims for service connection in January 2007. Thus, the Board remanded the Veteran's claims to afford him a new VA examination to obtain further medical opinion, and to associate with the claims file all VA treatment records pertaining to the Veteran's right and left elbow tendonitis, dated after March 2010. The Veteran was afforded a new VA examination in October 2013. The VA examiner found that the Veteran may have had tendonitis, but that his present complaints were purely subjective and he did not have any symptoms or signs of tendonitis. The Board finds that while the examiner addressed whether the Veteran had any current right and/or left elbow tendonitis, he did not fully comply with the Board's July 2013 remand instructions. Specifically, the examiner was instructed to discuss the Veteran's service treatment records dated February, March, and July 2006, all of which document diagnoses of right and left triceps tendonitis, and, if right and/or left elbow tendonitis was not currently identified, to render an opinion as to when the disability resolved-noting, in particular, if it resolved prior to January 2007, when the Veteran filed his claim for VA benefits. Under these circumstances, the Board finds that the opinion obtained is inadequate, and that remand is necessary to obtain further VA medical findings/opinions in connection with these claims. See Stegall, supra. Therefore, on remand, the AOJ should arrange to obtain an addendum opinion from the October 2013 examiner or from another appropriate physician, based on claims file review (if possible). The AOJ should only arrange for the Veteran to undergo further examination(s) if deemed necessary in the judgment of the physician designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization ,to obtain any evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within a one-year period). 2. If the Veteran responds, assist him 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, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, the period for the Veteran's response has expired, arrange for the October 2013 VA examiner to provide an addendum opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain a medical opinion from another appropriate physician based on review of the claims file. The need for an additional examination of the Veteran is left to the discretion of the clinician designated to provide the addendum opinion. The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. If the Veteran is examined, all appropriate tests and studies (to include x-rays) should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran (if warranted), and review of the record, the examiner should clearly identify any disability(ies) affecting each elbow, to particularly include tendonitis, currently present, or present at any time shortly prior to or at the filing of the January 2007 claims for service connection, or during the pendency the claims (even if currently asymptomatic or resolved). If the examiner determines that the tendonitis of the right and/or left elbow has now resolved, the examiner should render an opinion, consistent with sound medical judgment, as to when the right and/or left elbow tendonitis resolved-in particular, whether the disability(ies) resolved prior to January 2007, when the Veteran filed his claim for VA benefits. In addressing the above, the examiner should consider and discuss all pertinent medical and other objective evidence ( to include the Veteran's service treatment records dated in February, March, and July 2006 documenting diagnoses of right and left triceps tendonitis), along with all post-service evidence (to include the February 2007 VA examination report), as well as all lay assertions, to include the Veteran's competent assertions, as to the nature, onset, and continuity of symptoms. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After accomplishing all requested action, as well as any additional action deemed warranted adjudicate the claims on appeal in light of the pertinent evidence added to the record (to particularly include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication). 6. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).