Citation Nr: 1800962 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-14 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for degenerative arthritis of the thoracolumbar spine (back disability). 2. Entitlement to an initial compensable rating for degenerative arthritis of the left elbow. 3. Entitlement to service connection for a left lower extremity disability. REPRESENTATION Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2016, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In December 2016, the Board remanded the Veteran's increased rating claims in order to provide him with new VA examinations to assess the current severity of his service-connected low back and left elbow disabilities. The record shows that the Veteran underwent a VA examination in February 2017, during which he reported being unable to perform range of motion testing of the thoracolumbar spine due to pain. Range of motion testing of the left elbow revealed significantly decreased motion compared to that demonstrated at his previous VA examination. The examiner indicated that the Veteran did not appear to put forth his best effort during either examination and that his subjective complaints were inconsistent with the medical evidence of record and the examiner's observations of the Veteran before and after range of motion testing was conducted. Therefore, the examiner concluded that the February 2017 VA examination reports were not reliable for rating purposes. In a March 2017 written statement, the Veteran disputed the accuracy of the VA examiner's assessment and asserted that he was in severe pain on the day of the examination due to sitting in an uncomfortable hospital chair at his wife's bedside for four days. In light of the Veteran's assertions and conflicting medical evidence of record, the Board finds that the Veteran should be afforded a new VA examination to assess the current severity of his service-connected low back and left elbow disabilities. The Veteran is advised that his failure to cooperate fully during a scheduled VA examination could result in an adverse determination. See 38 C.F.R. § 3.655 (2017). In October 2011, the Veteran submitted a signed authorization to obtain records of treatment from MedEx Urgent Care in support of his claims for low back, left elbow, and left lower extremity disabilities. Although he subsequently submitted radiology reports of x-rays taken at MedEx Urgent Care, there is no indication in the record that VA ever requested complete records of treatment from MedEx. Accordingly, the Board finds that a remand is necessary in order to obtain those records. See 38 § C.F.R. 3.159(c)(1) (2017). Additionally, the record shows that VA obtained records of treatment from the Womack Army Medical Center at Fort Bragg dated through September 2009 and the Fayetteville VA Medical Center (VAMC) dated through June 2011. The record indicates that the Veteran was subsequently treated at both facilities for low back, left elbow, and left knee disabilities. Therefore, on remand, all outstanding VA and Tricare treatment records should also be obtained. See 38 § C.F.R. 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Veteran received a VA examination pursuant to his service connection claim for a left lower extremity disability in February 2017. The examiner indicated that the Veteran had a diagnosis of mild degenerative joint disease of the left knee and opined that it was less likely than not incurred in or caused by service. In support of this, the examiner noted that the earliest post-service treatment record for a left knee disability was an October 2011 x-ray report from MedEx Urgent Care and a November 2011 letter from the Veteran's MedEx treatment provider indicating that the Veteran's knee and leg pain was likely related to his military service. The examiner further noted that those treatment records did not contain any documentation relating to the date of the Veteran's left knee diagnosis. Therefore, if additional treatment records relevant to the Veteran's service connection claim for a left lower extremity disability are received, then a supplemental opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for a low back, left elbow, and left lower extremity disability, to specifically include MedEx Urgent Care. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain all outstanding VA treatment records from the Fayetteville VAMC dated June 2011 to the present and all Tricare records from the Womack Army Medical Center at Fort Bragg dated September 2009 to the present. If any requested records are unavailable, the Veteran should be notified of such. If possible, the Veteran himself should submit such records in order to expedite the case. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. The electronic claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner should report all range of motion measurements in degrees actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should also consider whether there is likely to be additional range of motion loss as a result of pain, weakness, fatigability, or incoordination, or during flare-ups and describe the additional loss in terms of degrees, if possible. Indications of exaggeration (if any) should also be noted for the record. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left elbow disability. The electronic claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner should report all range of motion measurements for both elbows in degrees actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should also consider whether there is likely to be additional range of motion loss as a result of pain, weakness, fatigability, or incoordination, or during flare-ups and describe the additional loss in terms of degrees, if possible. 4. If, and only if, additional treatment records are obtained which are relevant to the Veteran's service connection claim for a left lower extremity disability, provide the claims file to the VA examiner who conducted the February 2017 VA examination in order to obtain a supplemental opinion. If the February 2017 VA examiner is not available, provide the claims file to another appropriate examiner in order to obtain an opinion with respect to the Veteran's service connection claim for a left lower extremity disability. If another examination is deemed necessary to respond the question, one should be scheduled. If a VA medical opinion is requested, the examiner must review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that a currently diagnosed left lower extremity disability was incurred in or caused by the Veteran's active duty service. A complete rationale for all opinions must be provided. 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). JOHN J. CROWLEY 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) (2017).