Citation Nr: 1640552 Decision Date: 10/13/16 Archive Date: 10/27/16 DOCKET NO. 11-08 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for ununited fractured, medial epicondyle, left humerus, to include degenerative changes in the left elbow, based upon limitation of flexion, prior to March 7, 2011, and in excess of 20 percent thereafter. 2. Entitlement to a compensable initial disability rating for ununited fractured, medial epicondyle, left humerus, to include degenerative changes in the left elbow, based upon limitation of extension. 3. Entitlement to a compensable initial disability rating for ununited fractured, medial epicondyle, left humerus, to include degenerative changes in the left elbow, based upon impairment of supination and/or pronation, prior to January 20, 2016, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1970. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A March 2011 RO decision increased the assigned disability rating for the Veteran's left elbow disability, based upon limitation of flexion, from 10 percent to 20 percent, effective March 7, 2011. A subsequent March 2016 RO decision granted service connection for the Veteran's left elbow disability, based upon limitation of extension, and assigned a noncompensable disability rating from November 27, 2006. The March 2016 RO decision also granted service connection for the Veteran's left elbow disability, based upon impairment of supination and/or pronation, and assigned a noncompensable disability rating from March 7, 2011 and a 20 percent disability rating from January 20, 2016. Although the Veteran has not specifically initiated appeals with respect to the disability ratings or effective dates assigned within the March 2011 or March 2016 RO decisions, the March 2016 supplemental statement of the case (SSOC) explicitly addressed the additional disability ratings assigned. See Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, the Board retains jurisdiction to consider all assigned disability ratings for the Veteran's left elbow disability during the relevant temporal period in conjunction with his February 2009 claim of entitlement to an increased disability rating for his left elbow disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the Veteran may yet choose to initiate an appeal with respect to the effective dates assigned within the March 2016 RO decision. 38 C.F.R. § 20.201 (2015). The Veteran's appeal was previously remanded by the Board in October 2015. As discussed below, the Board finds an additional remand is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Significantly, the United States Court of Appeals for Veterans' Claims (Court) has recently held that 38 C.F.R. § 4.59 (2015) creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing 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. Id. As noted above, the Veteran's appeal was previously remanded by the Board in October 2015, in order to obtain relevant treatment records and to afford the Veteran an VA examination. Notably, a review of the evidence of record reveals that the subsequent January 2016 VA examination fails to fully comply with the Court's holding in Correia; as such, remand is required to obtain an adequate examination. See id.; see also Barr, 21 Vet. App. 303. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of his service-connected ununited fractured, medial epicondyle, left humerus, to include degenerative changes in the left elbow, based upon limitation of flexion, limitation of extension, and impairment of supination and/or pronation. The examiner must fully review the claims file, including a copy of this remand, in conjunction with the examination. The examiner must specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both right and left elbows. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Additionally, the examiner should clearly document any functional impairment as a result of the Veteran's left elbow disabilities. 2. Thereafter, review the resulting examination report to ensure its adequacy with above directives and the Court's holding in Correia v. McDonald, 21 Vet. App. 158 (2016). If the resulting examination is inadequate for any reason, return the matter to the VA examiner for corrective action. 3. Readjudicate the Veteran's increased rating claims on appeal regarding his left elbow. If any claim is not fully granted, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matters should be returned to the Board for further adjudication, if otherwise in order. The Veteran 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). _________________________________________________ K. PARAKKAL 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).