Citation Nr: 1804690 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 09-31 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to increased disability rating for limitation of flexion of the right elbow, currently rated as 10 percent disabling prior to September 30, 2005, and in excess of 20 percent thereafter. 2. Entitlement to a higher initial rating for limitation of extension of the right elbow, currently rated as 30 percent disabling effective March 10, 2012. 3. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from March 1961 to April 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2005 and December 2006 ratings decisions of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO), and a September 2012 rating decision of the Appeals Management Center. The RO in Saint Petersburg, Florida, currently has jurisdiction over the Veteran's claims. In February 2012, November 2014, and February 2016, the Board remanded these matters for further development, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Specifically, the Veteran has presented a December 2016 letter from his treating physician, Dr. J.N., stating the findings of an examination of the Veteran's right elbow that had been performed that day. It was stated that the examination revealed "weakness with resisted wrist extension middle finger extension on the right. He also has pain with resisted wrist flexion. He's experiencing some numbness over the ulnar aspect of the hand in the ulnar nerve distribution. Positive Tinel's over the ulnar nerve. Slight weakness with finger abduction and interosseous muscle testing." It was noted that the Veteran was suffering from exacerbation of his elbow pain with worsening of lateral and medial epicondylitis. Dr. J.N. also stated: "Possible ulnar nerve irritation." It was noted that the elbow was injected that day. Through his representative's January 2018 brief, the Veteran has submitted a website citation for right ulnar entrapment, which is argued to be one of the Veteran's symptoms of his service-connected right elbow disability. The Board notes that this claim of manifestation of neurologic symptomatology of the Veteran's service connected right elbow disability is not new to this case. In a November 2011 letter, Dr. J.N. wrote that the Veteran's right elbow had been examined that day, which revealed tenderness over the medial epicondyle. He stated that there was a slightly positive Tinel's over the ulnar nerve; no interosseous atrophy. It was noted that there was some soft tissue swelling over the medial epicondyle, weakness with the resisted wrist flexion and finger flexion. It was noted that the Veteran was becoming more symptomatic and that the injections were becoming less effective in treating symptoms. Attached to the letter was a copy of an article on ulnar nerve entrapment. Based in part upon Dr. J.N.'s November 2011 letter and accompanying article, in February 2012, the Board remanded the issue of the severity of the of the Veteran's service-connected right elbow disability for a new VA examination. In March 2012, the Veteran was afforded a VA examination for elbow and forearm conditions. In the report, the examiner stated that the examination was very unusual in that the Veteran was very reluctant to let the examiner touch the elbow and refused active range of motion. It was stated that the Veteran refused to extend the elbow beyond 90 degrees and noted that a bony mechanical block to extension was not felt. It was stated that the examiner could feel the Veteran resisting with his elbow flexors. It was stated that the Veteran would not allow pronation or supination of the forearm. It was noted that the arm did not demonstrate signs of atrophy consistent with his limited subjective motion. It was noted that the neurovascular examination was normal. The examiner opined that there was gross inconsistency between the Veteran's radiographs, showing mild arthrosis, and his clinical examination. It was opined that the Veteran's subjective pain and motion were not at all what was expected given his history and radiographic and clinical findings. The examiner suggested that the Veteran be reexamined. When the case was returned to the Board, it found that there was not substantial compliance with its February 2012 remand directives, and in November 2014, it remanded for a new VA examination by a different examiner pursuant to Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded a new VA examination of his elbow and forearm in April 2015. During the April 2015 VA examination, the Veteran reported that he had no motion in his right elbow at all. The examiner noted that he was unable to perform initial range of motion testing because "patient states has no ability to do any range of motion." It was noted that the Veteran stated that he was unable to move his right elbow but that there was no organic reason for this to be true. It was indicated that the Veteran did not have muscle atrophy. It was noted that there was a normal neurovascular examination with no objective evidence of any neurological impairment despite the "shooting" description of pain. It was noted that he Veteran regularly uses a sling as an assistive device. It was noted that the Veteran would not permit the examiner to perform passive range of motion of elbow and that the Veteran stated that he was unable to use the arm. The examiner observed that he did not see muscle atrophy that correlated with disuse. It was noted that the 2012 X-rays showed minimal degenerative joint disease that would not cause this degree of immobility by organic cause. The examiner referred back to the March 2012 VA examination report in which the examiner questioned the validity of the Veteran's self-reported limitations. In a March 2016 letter, Dr. J.N. stated that despite being treated with steroid injections on multiple occasions, the Veteran still had trouble with right elbow stiffness and pain. It was stated that the Veteran had pain-free range of motion of the right elbow of approximately 60 to 90 degrees; further motion elicited severe pain and spasms. Dr. J.N. stated: "He has very little functional use of the right elbow." The Board finds that a remand for another VA examination is warranted because the March 2012 and April 2015 VA examination reports are inadequate as they do not contain accurate range of motion measurements of the Veteran's right elbow and forearm and do not address whether ulnar nerve entrapment is present. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). Additionally, the Veteran has presented medical evidence suggesting that his neurologic symptoms related to his service-connected right elbow disability have worsened. Dr. J.N. reported in November 2011 that the Veteran had a slightly positive Tinel's over the ulnar nerve. In December 2016, Dr. J.N. reported that the Veteran had a positive Tinel's over the ulnar nerve and that he experienced numbness over the ulnar aspect of the hand in the ulnar nerve distribution. Dr. J.N. noted possible ulnar nerve irritation. Thus, the Veteran should be scheduled for another VA examination for another opportunity to fully present the severity of his service-connected right elbow disability, including orthopedic and neurologic manifestations and symptoms. The Veteran is advised that a claimant's cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Absent a showing of good cause, a claimant's refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. See 38 C.F.R. § 3.655 (2017). Claimants who fail to cooperate during VA examinations subject themselves to the risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (citing 38 C.F.R. § 3.655 (a)). Since the claims file is being returned it should be updated to include VA treatment records complied since April 2015. See 38 C.F.R. 3.159(c)(2) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the service-connected right elbow disability for the period from April 2015 to the present. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records. All efforts to obtain additional evidence must be documented in the record. 2. After all additional records are associated with the claims file, schedule the Veteran for a new VA examination to reassess the severity of the Veteran's right elbow disability, including orthopedic and neurological manifestations and symptoms. The claims file, including a copy of this REMAND in its entirety must be made available to the examiner for review, and the examination report should reflect that the claims folder was reviewed in connection with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. After reviewing the entire record, examining the Veteran, and performing any medically indicated testing, the examiner should provide specific findings as to the range of motion of the Veteran's right forearm/elbow. Any pain during range of motion testing should be noted, and the examiner should accurately measure and report where any recorded pain begins and ends when measuring range of motion (with and without repetition). He or she should also note whether there is any objective evidence of weakness, excess fatigability, and/or incoordination associated with the Veteran's right elbow/forearm disability. If observed, the examiner should specifically comment on whether the Veteran's range of motion is affected, and if possible, provide the additional loss of motion in degrees. The examiner should also indicate whether there is any abnormality of the elbow, including evidence of ankylosis or flail joint. All limitation of function must be identified. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be expressly noted in the report. Additionally, the examiner should identify all neurological manifestations of the Veteran's right elbow disability, including ulnar nerve entrapment. If there are no neurological manifestations, that fact must be expressly noted in the report. If neurological symptoms are deemed to be related to the right elbow disability, the examiner should identify the affected nerve group. He or she should also state whether there is complete paralysis of the affected nerve or whether the Veteran experiences severe, moderate, or mild incomplete paralysis. The examiner is specifically asked to comment on the November 2011 and December 2016 statements of Dr. J.N., wherein he observed neurological manifestations of the Veteran's right elbow disability, in a slightly positive and positive Tinel's sign over the ulnar nerve, weakness of fingers, and numbness over the ulnar aspect of the hand in the ulnar nerve distribution. The examiner must discuss the underlying medical rationale for all opinions or conclusions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. The Veteran is hereby advised that a claimant's cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Absent a showing of good cause, a claimant's refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. See 38 C.F.R. § 3.655 (2017). Claimants who fail to cooperate during VA examinations subject themselves to the risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (citing 38 C.F.R. § 3.655 (a)). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any of the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG 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).