Citation Nr: 18142496 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-15 420 DATE: October 16, 2018 REMANDED Entitlement to service connection for right knee condition, claimed as arthritis is remanded. Entitlement to an increased rating, in excess of 10 percent, for left elbow condition, to include degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to July 1981. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), Muskogee, Oklahoma. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In August 2016, the Board remanded the appeal for further development. Specifically, the Board directed the AOJ to obtain outstanding records and to schedule the Veteran for several examinations related to his claims. As discussed below, several of these actions have not been completed. Unfortunately, the Board finds that further AOJ action on the issues of service connection for a right knee disability, a higher initial rating for a left elbow disability, and entitlement to TDIU is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for right knee condition, claimed as arthritis. With respect to the claim for service connection for right knee disability, the Board remanded this issue, in part, to assist the Veteran in obtaining records of his reported history of treatment for right knee disability at St. Johns Hospital in 1994/95. This development has not been completed. The Board also requested a medical etiology opinion with consideration of the Veteran’s service treatment records (STRs) documenting a right knee injury and the Veteran’s reports about continuity of symptomology since service. The September 2016 VA examiner provided negative medical opinion with a cursory rationale. The rationale essentially acknowledged a right knee strain, but did not address whether that was the in-service event or whether it is a current condition suffered by the Veteran. The rationale also simply stated that the Veteran’s pain, without an underlying diagnosis, was attributable to obesity and activity and rejected a military nexus without further discussion. Notably, the Veteran demonstrates degenerative joint disease by x-ray examination. The Board finds the September 2016 VA medical opinion for the right knee disability to be unresponsive to the specific remand instructions given in the August 2016 Board remand. The examiner does not consider the Veteran’s reports concerning an in-service injury and follow-on self-treatment. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). For these reasons, the September 2016 VA medical opinion regarding service connection for a right knee disability is inadequate as the rationale is incomplete and conclusory. Therefore, the examination did not substantially comply with the Board’s August 2016 remand directives. Thus, another remand of this matter is required to ensure such compliance. Stegall, supra.; See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board’s remand instructions were substantially complied with). 2. Entitlement to an increased rating in excess of 10 percent for left elbow condition, to include degenerative joint disease The United States Court of Appeals for Veterans Claims (Court) has held that “when conducting evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp v. Shulkin, 29 Vet. App. 32 (2017) (see generally VA CLINICIAN’S GUIDE § 0.1, ch. 11 (March 2002)). In a March 2017 VA examination, the VA examiner noted a diagnosis of right elbow strain with complaints of elbow pain. The examiner noted that the Veteran’s pain “comes and goes and depends with activity. He states having a numb feeling in his elbow at times.” The Veteran also reported “his flare-ups occur daily with any activity of his elbow.” However, the examiner stated “I have not seen veteran during a flare up therefore it is not feasible to determine additional functional loss due to flare ups.” In a May 2017 addendum, the examiner noted The patient’s previous C&P examination which I performed 08/29/2016 was also reviewed prior to this dictation. According to my note, the patient’s active range of motion bilateral elbows to flexion was 0-145 degrees without pain. The patient's extension was 0-145 degrees without pain. The patient’s supination was 0-70 degrees without pain. The patient's forearm pronation was 0-80 degrees without pain. This was true for both elbows…Both elbows do not appear to have pain with weightbearing or non-weightbearing with passive range of motion testing. The Court has held that examiners should estimate the functional loss that occurs during flare-ups. Sharp v. Shulkin, 29 Vet. App. 34 (citing Mitchell v. Shinseki, 25 Vet. App. 44 (2011) (finding inadequate a medical opinion where an examiner did not offer an opinion as to additional function loss during flares “despite noting the appellant’s assertions” regarding the frequency, duration, and severity of those flares); cf. Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation)). Therefore, the Board finds that, on remand, the Veteran should be afforded a new examination in order to address the requirements under Sharp. The examiner should elicit from the Veteran an estimation of the level of functional loss, to include descriptions of weakness, fatigability, and loss of range of motion of the elbow. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). 3. Entitlement to TDIU is remanded. The Veteran seeks a total disability rating based on individual unemployability (TDIU). Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). In November 2015, the Veteran met the schedular requirements for TDIU. He was rated as 60 percent disabled for hypertension, and a combined rating of 80 percent for his disabilities. In his May 2016 Board testimony, the Veteran stated that he works as a security guard but has some limitations due to his service-connected disabilities. In the August 2016 remand, the Board directed the AOJ to provide the Veteran notice of the criteria for establishing entitlement to TDIU, and to provide the Veteran an evaluation by a vocational specialist. In January 2018, the AOJ provided the Veteran a VA Form 8940 (Veteran’s Application for Increased Compensation Based on Unemployability) to complete and submit to VA. The Veteran has not returned this form. The Veteran’s representative argues that the AOJ failed to obtain an evaluation for a vocational specialist. However, the record reflects that a Social and Industrial Survey was conducted in October 2016. Thus, the Board finds compliance with prior remand instructions on the issue of entitlement to TDIU. However, as the above remanded claims require additional development, the Board defers consideration of the TDIU claim pending completion of the necessary development. The matter is REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records 2. Assist the Veteran in obtaining records of treatment for right knee disability at St. Johns Hospital in 1994/95. 3. Return the claims folder for an addendum opinion as to the nature and etiology of the Veteran’s right knee disorder. All indicated tests and studies should be undertaken. The need for additional examination is left to the discretion of the examiner. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current right knee disorder is related to any event or injury during service, to include the reported twisting injury in approximately 1988. The examiner is requested to discuss whether the severity and mechanism of injury in 1988 was of sufficient severity to result in the current radiographic changes of the right knee. The examiner is requested to accept as true the Veteran’s description of injury and treatment for a twisting injury in 1988 even though not documented in the service treatment records. The examiner is free to comment as to whether there is any medical reason to accept or reject the Veteran’s contention of manifesting a chronic right knee disability since the 1988 injury in light of the entire evidentiary record, including the lay and medical evidence existing at the time of service separation. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the evidence of record and any relevant medical literature, must accompany each opinion provided. 4. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected left elbow disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • 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, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 5. After completing the development requested above, and any other development deemed necessary, readjudicate the claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor