Citation Nr: 1633087 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 14-23 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for residuals of a left elbow fracture with degenerative arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The September 2011 rating decision denied a rating in excess of 10 percent for residuals of a left elbow fracture with degenerative arthritis. In June 2015 and in April 2016, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation for residuals of a left elbow fracture with degenerative arthritis. The Veteran's elbow was last evaluated in January 2014, regarding aid and attendance and housebound. The examination included evaluation of the Veteran's elbow flexion and extension. The Veteran's last examination specifically for the severity of his left elbow condition was conducted in September 2013. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). In addition, the Court of Appeals for Veterans Claims (CAVC) recently held that, for purposes of interpreting 38 C.F.R. § 4.59, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, __ Vet App. __ 2016 WL 3591858 *8 (July 5, 2016). The CAVC also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Id. at 9. The Board has reviewed the VA and private treatment records associated with the claims file, there is no medical evidence on file from which the Board can accurately determine the current severity of the residuals of a left elbow fracture with degenerative arthritis. Further, there is no indication that testing under all of the conditions required under Correia has been performed for the left elbow. As such, additional examinations are warranted to assess the current severity of the Veteran's service-connected residuals of a left elbow fracture with degenerative arthritis. VA treatment records are constructively of record, and on remand, all outstanding VA treatment records and relevant private records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinksi, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran for the appropriate release to obtain any outstanding private treatment records. With the Veteran's authorization, the RO/AMC should then obtain the Veteran's recent private treatment records. If no additional records are located, the Veteran must be notified and a written statement to that effect should be requested for incorporation into the record. 2. The RO should also obtain any outstanding VA treatment records. All efforts to obtain these records must be documented in the claims file. 3. After the above development is complete, schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's service-connected residuals of a left elbow fracture with degenerative arthritis for the entire period on appeal. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary studies or tests are to be accomplished (with all findings made available to the examiner), and all clinical findings should be reported in detail. After reviewing the medical and lay evidence of record, and interviewing the Veteran, the examiner should address the following: a. Conduct full range of motion studies for the left and right elbow and document findings in terms of degrees. Further, conduct range of motion testing, recording the degree at which objective evidence of pain begins, under each of the following four conditions: i) on weight-bearing ii) on nonweight-bearing iii) on active motion iv) on passive motion If there is no clinical evidence of painful motion on any such testing, the examiner must so state, and indicate that all testing under each condition was performed. b. Provide specific findings as to the range of motion of each elbow after three repetitions of movement, and state whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. c. After reviewing the Veteran's complaints and medical history, and requesting further detail from the Veteran if necessary, provide an opinion regarding whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination during flare-ups for the left elbow. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible. Any additional loss of range of motion of the left elbow during flare-ups should be noted in terms of degrees of motion lost as well as additional symptomatology which results, to the extent possible. The examiner should consider the Veteran's described symptomatology, as well as medical evidence of record, in making this determination. If approximate degrees of motion lost cannot be feasibly determined, the examiner must explain why this information cannot be provided. d. Comment on the functional impact of the Veteran's residuals of a left elbow fracture with degenerative arthritis on his activities of daily living to include occupational activities. To the extent possible, provide an opinion as to the resulting limitations on both physical and sedentary occupational tasks. A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. After the development requested above has been completed, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if 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 2014). _________________________________________________ WAYNE M. BRAEUER 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) (2016).