Citation Nr: 1756728 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-04 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to February 18, 2010, and since June 1, 2010, for service-connected right elbow injury with traumatic arthritis. 2. Entitlement to an initial rating in excess of 10 percent prior to October 24, 2013, and to a rating in excess of 20 percent between October 24, 2013 and November 21, 2013, and from January 1, 2014, for service-connected left shoulder tendonitis and impingement syndrome associated with right elbow injury with traumatic arthritis. 3. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected right elbow injury with traumatic arthritis. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right elbow injury with traumatic arthritis. 5. Entitlement to service connection for right L5 radiculopathy/peroneal neuropathy, to include as secondary to service-connected right elbow injury with traumatic arthritis. ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran had active duty service from February 1984 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007, March 2008, and January 2009 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was most recently before the Board in February 2011, when the claims were remanded for further development. An October 2016 supplemental statement of the case (SSOC) was most recently issued and the case is once again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Increased Ratings for Right Elbow and Left Shoulder- With regard to the issues of entitlement to increased ratings for the Veteran's right elbow injury with traumatic arthritis and left shoulder tendonitis and impingement syndrome, although VA examinations were most recently conducted in October 2013, recent case law renders those examinations inadequate. Correia v. McDonald, 28 Vet. App. 158 (2016). In particular, the Board notes that findings from the previous examinations now are insufficient to assess the Veteran's elbow and shoulder range of motion in passive motion, and (where relevant) weight-bearing and nonweight-bearing settings. Accordingly, the Veteran should be afforded a VA examination to assess the current nature and severity of his right elbow and left shoulder disabilities. Additionally, with respect to his service-connected left shoulder disability, the Veteran informed the VA that he underwent surgery on his left shoulder in November 2013. See December 2013 Statement. This surgery changes the nature of the disability, and a new examination should thus be afforded to the Veteran. Service Connection for Cervical Spine, Lumbar Spine, Radiculopathy- In its February 2011 Remand, the Board found that a remand was necessary for new VA examinations and opinions for the Veteran's claimed cervical spine, low back, and radiculopathy disabilities. Direct and secondary service connection opinions were requested. Accordingly, the Veteran was scheduled for and attended a September 2011 VA examination for his cervical spine, low back and radiculopathy. However, this examination is not adequate. Specifically, although the September 2011 VA examiner concluded that the Veteran's cervical spine disability is not secondary to his service-connected right elbow, the examiner did not discuss whether the Veteran's service-connected right elbow aggravated (worsened) his cervical spine disability. 38 C.F.R. § 3.310(b). The examiner additionally failed to discuss whether the Veteran's service-connected right elbow aggravated (worsened) his lumbar spine disability or radiculopathy. 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). Based on the foregoing, the Board finds that the Veteran should be afforded VA addendum opinions that address the medical matters raised by these issues. As the examiner did not comply with the Board's remand directives, remand is necessary for new examinations. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA orthopedic examination concerning the severity of his service-connected right elbow and left shoulder disabilities. The electronic claims file must be made available to the examiner for review. The report of examination should include a complete rationale for all opinions expressed. The examiner should set forth all current complaints and findings pertaining to the service-connected right elbow and left shoulder disabilities. The examiner should address the range of motion of the right elbow and left shoulder disabilities. The examiner should also address any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. For each joint, the examiner must identify the point in range of motion where pain begins. Any additional functional loss of any examined joint should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion of the right elbow or the left shoulder that is associated with flare-ups or on repetitive use. The examiner must specifically test the range of motion of the right elbow and left shoulder in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. 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. 2. Forward the Veteran's claims folder to an examiner for addendum opinions regarding the Veteran's cervical spine, lumbar spine, and radiculopathy disabilities. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner should provide opinions on the following: (a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's cervical spine disability is caused by his service-connected right elbow disability, or any other service-connected disability. (b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's cervical spine disability is aggravated by his service-connected right elbow disability, or any service-connected disability. (c) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar spine disability is caused by his service-connected right elbow disability, or any other service-connected disability. (d) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar spine disability is aggravated by his service-connected right elbow disability, or any service-connected disability. (e) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's radiculopathy disability is caused by his service-connected right elbow disability, or any other service-connected disability. (f) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's radiculopathy disability is aggravated by his service-connected right elbow disability, or any service-connected disability. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, and any other indicated development, the Veteran's claims must be re-adjudicated. If any of the benefits remain denied, a supplemental statement of the case must be provided to the Veteran, if applicable. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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 your appeal. 38 C.F.R. § 20.1100(b) (2017).