Citation Nr: 1754823 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-45 545 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an increased (compensable) rating for service-connected left elbow disability, due to limitation of extension. 3. Entitlement to a rating in excess of 10 percent for service-connected left elbow tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1952. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2013 rating decision in which the RO, inter alia, denied service connection for PTSD, continued a 10 percent rating for service-connected left elbow tendonitis, based on painful motion, and assigned a separate noncompensable evaluation for the Veteran's service-connected left elbow disability, due to limitation of extension, effective from April 30, 2012. In September 2013, the Veteran filed a notice of disagreement (NOD) wherein he disagreed with the RO's denial of service connection for PTSD and with the evaluations assigned for his service-connected left elbow disability. A statement of the case (SOC) was issued in July 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2016. The Board notes that in his VA Form 9, the Veteran requested a Board video-conference hearing. A hearing was scheduled for July 25, 2017. However, in correspondence received on July 20, 2017, the Veteran cancelled his request for a Board hearing. Notably, the Veteran did not request to postpone or reschedule his hearing at that time, and has not since then requested that another hearing be scheduled. Accordingly, the Board finds no further action necessary with regard to the Veteran's original request and will proceed with its adjudication of the appeal. While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file, consisting of adjudicatory decisions, notification letters, VA examination reports, to include the report of June 2013 VA Elbow and Forearm Conditions and PTSD examinations. All such records have been reviewed. Also, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. 38 U.S.C. § 7107(a)(2) ( 2012) and § 20.900(c) (2017). . For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Generally, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). Turning first to the Veteran's claim for service connection for PTSD, the RO denied service connection for PTSD because PTSD was not diagnosed at the time of a June 2013 VA examination. A review of the June 2013 VA examination report, which is contained in the Veteran's Virtual VA (Legacy Content Manager) file, shows that the examiner found that although the Veteran exhibited some symptoms of PTSD, the Veteran's "symptoms do not meet the diagnostic criteria for PTSD under [the] DSM-IV criteria." The Board points out that for cases certified to the Board prior to August 4, 2014, the diagnosis of PTSD must be in accordance with the DSM-IV. 38 C.F.R. § 4.125(a) (2014). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to, among other things, remove outdated references to the DSM-IV and replace them with references to then recently updated DSM-5. See 79 Fed. Reg. 45,093 (Aug. 4, 2014); see also 38 C.F.R. § 4.125(a) (2017). The instant matter was not certified to the Board until November 2016. Thus, because the Veteran's claim was pending before the AOJ as of August 4, 2014, he is entitled to have his claim evaluated in accordance with the criteria set forth in the DSM-5. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). As it is unclear whether the Veteran would meet the criteria for a diagnosis of PTSD under DSM 5, the claim for service connection for PTSD is being remanded for the Veteran to be afforded a new VA examination to fully assess his psychiatric picture, to include a determination regarding whether he meets the criteria for a diagnosis of PTSD in accordance with the DSM-5. As regards the Veteran's left elbow disability, the Veteran is in receipt of two ratings. Specifically, his left elbow tendonitis is evaluated as 10 percent disabling under 38 C.F.R. 4.71a, Diagnostic Code (DC) 5003-5206, and as noncompensably disabling based on limitation of extension under DC 5003-5207. A note following the relevant DCs provides that "[i]n all the forearm and wrist injuries, codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss of use of hand." 38 C.F.R. § 4.71a, DCs 5205-5213, Note (2017). Notably, in correspondence dated in March 2014, the Veteran indicated that he was left handed and was barely able to hold a pen and reported the hands and fingers were quite often numb. Private treatment records dated in 2013 also note the Veteran's complaints of increasing left upper extremity pain and weakness and decline of functional use/disuse of his left hand. These private records also note pain with resisted finger extension, thumb flexion, and elbow extension, decreased pinch and grip strength, and difficulty making a full fist. The Board finds that this evidence raises a question as to whether the Veteran may be entitled to separate ratings for impaired finger movement due to tendon, muscle, or nerve injury, a question that the most recent VA examination, afforded to the Veteran in May 2014, does not address. The Board also notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." In this case, the Veteran's left elbow is being in accordance with the criteria set forth in DCs 5206 and 5207, which pertain to limitation of flexion and extension. Notably, the examination reports of record do not reflect findings that comport with the requirements set forth in 38 C.F.R. § 4.59 and Correia, supra. Given the above noted deficiencies, the Board finds that a new examination, by an appropriate medical professional, is needed to obtain appropriate testing results and clinical findings to assess the severity of the service-connected left elbow disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of his claim(s)-in particular, his increased rating claim(s).. See 38 C.F.R. § 3.655(a), (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. If the Veteran fails to report to any scheduled examination(s), the AOJ should obtain and associate with the claims file any copy(ies) of correspondence-referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, , to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Miami, Florida, VA Health Care System (VAHCS), and that records from those facilities dated through October 2017 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the Miami VAHCS all pertinent, outstanding records of evaluation and/or treatment of the Veteran since October 12, 2017, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal (particularly as regards any private (non-VA) treatment, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b) (2012). But see 38 U.S.C. § 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. §§ 5103, 5103A ( 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 matters on appeal. In adjudicating each claim, the AOJ should consider all evidence added to the claims file since the last adjudication. Adjudication of each increased rating claim should also include consideration of whether staged rating of the disability-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Miami VAHCS (and any associated facility(ies)) all outstanding, pertinent records of cervical spine evaluation and/or treatment of the Veteran since October 12, 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any 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, 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. 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 PTSD examination by a psychiatrist or psychologist. The contents of the entire 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 reflect full consideration of the Veteran's documented medical history and assertions. All indicated tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be set forth, in detail. After examining the Veteran and reviewing the claims file, the examiner should clearly indicate whether the Veteran meets the diagnostic criteria for PTSD under the DSM-5 If a diagnosis of PTSD is deemed appropriate, the examiner must fully explain how the DSM-5 diagnostic criteria are met, to include clearly identifying the stressor(s) underlying the diagnosis (specifically indicating whether such stressor(s) is/are associated with combat and/or hostile military and/or terrorist activity), and commenting upon the link, if any, between the stressor(s) and the Veteran's symptoms. If a diagnosis of PTSD is deemed not appropriate, the examiner must clearly explain which DSM-5 diagnostic criteria are not met, and why. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay evidence-to include the Veteran's competent assertions as to in-service experiences, and 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. 5. 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 examination VA examination for evaluation of his service-connected left elbow disability, by an appropriate medical professional. The contents of the entire 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 reflect full consideration 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 (expressed in degrees) of the left elbow/forearm on both active motion and passive motion and in both weight-bearing and non-weight-bearing. The same range of motion testing should also be accomplished for the right elbow/forearm (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he/she should clearly so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the left elbow/forearm 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 indicate whether there is any ankylosis of the left elbow and, if so, whether it is favorable or unfavorable and the angle at which the elbow is held. Additionally, the examiner should fully describe the nature and extent of impairment of the radius associated with the left forearm disability, to include indicating whether there is malunion or nonunion of the radius; and, if so the location and characteristics of such. Also, based on all examination findings/testing results, and review of the record, the examiner should clearly indicate whether the claims file reflects any change(s) in the severity of the left forearm disability at an point since April 30, 2012 (one year prior to the filing of the current claim for increase); and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date. Lastly, the examiner must address the Veteran's complaints of decreased grip strength, inability to hold a pain, and disuse of left hand and assess whether the Veteran suffers from any impaired finger movements and, if so, whether such is due to tendon tie-up, muscle or nerve injury. In all forearm injuries if there are impaired finger movements due. Any additional Disability Questionnaire(s) such as the Hand, Peripheral Nerve, and/or Muscle Injuries Questionnaire, should be completed as necessary. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. 7. 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). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the claims for service connection for PTSD and for increased ratings for the Veteran's service-connected left elbow disability. If the Veteran fails, without good cause, to report to the examination scheduled in connection with the increased rating claims, in adjudicating those claims, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim on appeal in light of all pertinent evidence (to include all that added to the claims file since the last adjudication), and legal authority (to include, with respect to each increased rating claim, whether staged rating of the disability is appropriate). 9. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative a supplemental SOC 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 ( 2012). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).