Citation Nr: 1805568 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-17 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for irritable bowel syndrome, including on an extraschedular basis. 2. Entitlement to an initial rating greater than 10 percent for right elbow tendonitis. 3. Entitlement to an initial compensable rating for right elbow limitation of extension. 4. Entitlement to an initial compensable rating for chronic kidney disease. 5. Entitlement to an initial compensable rating for post-operative dry eye syndrome in both eyes. 6. Entitlement to an initial compensable rating for residuals of a coccyx fracture. 7. Entitlement to an initial compensable rating for toenail fungus of the bilateral great toes. 8. Entitlement to an initial compensable rating for hemorrhoids. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1985 to December 2012, including in combat in Iraq in support of Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted, in pertinent part, the Veteran's claims of service connection for irritable bowel syndrome (which was characterized as irritable bowel syndrome, Crohn's disease, and ulcerative colitis), assigning a 30 percent rating effective January 1, 2013, right elbow tendonitis, assigning a zero percent rating effective January 1, 2013, right elbow limitation of extension, assigning a zero percent rating effective January 1, 2013, chronic kidney disease (which was characterized as kidney condition), assigning a zero percent rating effective January 1, 2013, and for post-operative dry eye syndrome in both eyes (which was characterized as status-post photorefractive keratectomy and dry eye syndrome, both eyes), assigning a zero percent rating effective January 1, 2013. This decision was issued to the Veteran and his service representative in March 2013. The Veteran disagreed with this decision in September 2013. He perfected a timely appeal in May 2014. This matter also is on appeal from a March 2013 rating decision in which the RO granted the Veteran's claims of service connection for residuals of a coccyx fracture (which was characterized as residual coccyx fracture), assigning a zero percent rating effective January 1, 2013, toenail fungus of the bilateral great toes (which was characterized as toe nail fungus), assigning a zero percent rating effective January 1, 2013, and for hemorrhoids, assigning a zero percent rating effective January 1, 2013. This decision was issued to the Veteran and his service representative later in March 2013. The Veteran disagreed with this decision in September 2013. He perfected a timely appeal in May 2014. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated on the title page. The Board notes that the Veteran appointed his attorney to represent him before VA in August 2013. The Board next notes that the Agency of Original Jurisdiction (AOJ) adjudicated this Veteran's claims as part of the Benefits Delivery at Discharge (BDD) program (now known as the Pre-Discharge Program or Joint VA/Department of Defense Disability Evaluation System (DES)). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran essentially contends that his service-connected irritable bowel syndrome, right elbow tendonitis and limitation of extension, chronic kidney disease, post-operative dry eye syndrome of both eyes, residuals of a coccyx fracture, toenail fungus of the bilateral great toes, and hemorrhoids are all more disabling than currently (and initially) evaluated. He specifically contends that all of these service-connected disabilities have worsened since his most recent VA examinations. A review of the record evidence shows that the Veteran was examined most recently for his service-connected disabilities in approximately February 2014. The Board notes that the February 2014 VA examination reports are in VVA and not VBMS. The Board also notes that the Veteran currently is in receipt of the maximum scheduler 30 percent rating available for his service-connected irritable bowel syndrome; thus, this claim includes consideration of entitlement to a higher initial rating on an extraschedular basis. See 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code (DC) 7319 (2017). The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examinations in February 2014, the Board finds that, on remand, he should be scheduled for updated VA examinations to determine the current nature and severity of each of these service-connected disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The Board next notes that, in 2016, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the right elbow and coccyx, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. A review of the Veteran's most recent VA examinations for his service-connected right elbow tendonitis and limitation of extension and service-connected residuals of a coccyx fracture in February 2014 shows that they did not comply with Correia. Accordingly, the Board finds that, on remand, the updated VA examinations concerning the current nature and severity of his service-connected right elbow tendonitis and limitation of extension and residuals of a coccyx fracture must address Correia. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected irritable bowel syndrome. The examiner is asked to state whether this service-connected disability markedly interferes with the Veteran's employment or requires frequent periods of hospitalization. 3. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected right elbow tendonitis and right elbow limitation of extension. In order to comply with the Court's decision in Correia, the examiner must test and record the range of motion for BOTH elbows in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. 4. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected post-operative dry eye syndrome in both eyes. 5. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected residuals of a coccyx fracture. In order to comply with the Court's decision in Correia, the examiner must test and record the range of motion for the coccyx in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. 6. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected toenail fungus of the bilateral great toes. 7. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected hemorrhoids. 8. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West 2012). _________________________________________________ L. M. BARNARD 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).