Citation Nr: 1753482 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-03 490 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic arthritis of the left elbow with residual malunion, fracture of the left ulna with dislocation of the radial head, postoperative (left elbow disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO, inter alia, denied a rating in excess of 30 percent for the left elbow disability. The Veteran filed a notice of disagreement (NOD) in March 2009. A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. In March 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In June 2013, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim on appeal (as reflected in an October 2013 supplemental SOC (SSOC)) and returned that matter to the Board for further consideration. In December 2014 and April 2016, the Board again remanded the claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim on appeal (as reflected in the July 2015 and September 2016 supplemental SSOCs) and returned that matter to the Board for further consideration. The Board notes that in a June 2016 rating decision, the Veteran was awarded service connection for ulnar/median nerve peripheral neuropathy, left (minor) upper extremity, previously rated with posttraumatic arthritis, left elbow, residual of malunion, fracture of left ulna with dislocated or radial head, postoperative associated with post traumatic arthritis, left elbow, residual of malunion, fracture of left ulna with dislocated radial head, postoperative (minor) and assigned a 60 percent disability rating, effective November 26, 2013. As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In March 2017, the Board again remanded the claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. While the Veteran previously had a paper claims file, 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 matter on appeal is, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In March 2017, the Board remanded the appeal to, in pertinent part, afford the Veteran a VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59. The Board specifically, requested that the "[r]ange of motion should be tested in active motion and passive motion, weight-bearing, and non weight-bearing....[and] [if] the examiner is unable to conduct the required testing . . . he or she should clearly state and explain why." See Board remand dated in March 2017. In April 2017, the Veteran was afforded an elbow and forearm examination. Critically, the April 2017 VA examiner reported that the Veteran experienced pain on range of motion testing in active motion, passive motion, weight-bearing, and non weight-bearing, but only recorded the results of active motion testing. See April 2017 VA examination report, pages 7-8. Here, the absence of the requested additional range of motion testing results, or explanation as to why such could not be obtained, is particularly troubling, given the reported presence of pain. The Board notes that following the April 2017 examination, an August 2017 deferred rating decision acknowledged that the April 2017 examination report did not conduct the active range of motion testing pertaining to pain symptomology. Importantly, the August 2017 deferred rating decision requested for an addendum opinion to be obtained to discuss the results of range of motion testing for pain on active range of motion. Crucially, an addendum opinion was not obtained. As this information is central to the Veteran's claim, the Board finds that remand is needed to ensure compliance with the March 2017 Board remand directives, Correia, and 38 C.F.R. § 4.59 both of which require range of motion testing not only in active motion, but passive motion, weight-bearing, and non weight-bearing as well. See Stegall, supra; Correia, supra. Hence, the AOJ should arrange for the Veteran to undergo a VA examination of the left elbow by an appropriate medical professional. The Veteran is hereby advised that failure to report for the scheduled examination,, without good cause, may well result in denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to accomplishing action consistent with the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file (in VBMS and Virtual VA) all outstanding, pertinent records, to include records of VA evaluation and/or treatment of the Veteran dated since April 2017. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (West 2014); but see 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 (2017). 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 2012); 38 C.F.R. § 3.159 (2017). 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 remaining claim on appeal. Adjudication of the claim should include consideration of whether "staged rating" of the disability-assignment of different ratings for distinct periods of time, based on the facts found. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran's left elbow disability since April 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and 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. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA left elbow examination by an appropriate medical professional. The entire electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the left elbow (expressed in degrees). Range of motion should be tested in active motion and passive motion, weight-bearing, and non weight-bearing. 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 so state and explain why. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also identify and assess the severity of all associated neurological manifestations, including loss of grip strength and the extent of any incomplete paralysis. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid another remand, ensure that the 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, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted adjudicate the remaining claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the increased rating claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication), and legal authority (to include consideration of whether staged rating of the disability is appropriate).. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an 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 any 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 2012). ______________________________________________ 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) (6) (2017).