Citation Nr: 18152289 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-49 898 DATE: November 21, 2018 REMANDED Entitlement to a compensable rating for right medial epicondylitis is remanded. Entitlement to a compensable rating for mild degenerative changes of the lumbosacral spine is remanded. Entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1990 to April 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The matters are currently under the jurisdiction of the Cleveland RO. In the October VA Form 9, the Veteran declined an optional hearing before a member of the Board. However, in a March 2018 VA Form 9, the Veteran requested a travel Board hearing. In August and September 2018, VA sent the Veteran letters informing him that he was scheduled for an October 2018 hearing before the Board. However, the Veteran failed to appear and did not provide an explanation for his failure to appear. Pursuant to 38 C.F.R. § 20.704 (d), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. 1. Entitlement to a compensable rating for right medial epicondylitis and mild degenerative changes of the lumbosacral spine are remanded. First, on the March 2018 VA Form 9, the Veteran stated that he was unaware that he was scheduled for a VA examination in November 2016 and requested that he be scheduled for another examination. He also stated that he has begun to experience worsening of his back and elbow disabilities. Particularly, he stated that he experiences swelling and pain in his back when standing for long periods; bending over or lifting everyday objects and pain in his elbow when trying to straighten it. The Veteran was last afforded a VA examination in March 2011. Based on the foregoing, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his back and elbow disabilities. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The new examination should also include any testing for pain on active and passive motion. Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding 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). Second, the Veteran also reported that in October 2017 he underwent an x-ray examination of his elbow and it was determined that he had a fracture that was reset and healed on its own. There are no x-rays from October 2017 currently of record. As there is evidence that there may be outstanding private treatment records that have not been obtained and associated with the Veteran’s electronic claims folder, the Board finds that a remand is necessary to obtain those records. On remand, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. Third, at the March 2011 VA examination, the examiner noted that the Veteran was not currently working. It is unclear if the Veteran is currently unemployed and if the reason for his unemployability is due to his service-connected disabilities. On remand, the Veteran should be notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the claim for entitlement to TDIU, and request that he supply the requisite information. 2. Entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities is remanded. Fourth, the issue of entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities is inextricably intertwined with the increased rating claims for the service connected back and elbow disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Here, the outcome and potential grant of a compensable rating for the service-connected back and elbow claims would affect the applicability of the claim. Therefore, the Board remands the matter of entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities for adjudication following the development of the remaining remanded claims. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide or authorize the release of any private treatment records where he received treatment (including x-rays conducted in October 2017, see March 2018 VA Form 9) for his claimed back and elbow disabilities, as well as any other records, not already of record, that are relevant to his claims. If, after making reasonable efforts to obtain non-VA records the Agency of Original jurisdiction (AOJ) is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the claim for entitlement to TDIU, and request that he supply the requisite information. 3. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected back and elbow disabilities. *A copy of the letter notifying the Veteran of the scheduled appointment must be associated with the electronic claims folder.* The electronic claims folder, including a copy of this remand, must be made available to the examiner for review prior to the examination. Any indicated evaluations, studies, and tests should be conducted. The examination report should also include joint testing for pain on both active and passive motion, and do so on weight bearing and non-weight bearing. See Correia, supra. 4. After ensuring that the requested actions are completed, and undertaking any additional development action that is deemed warranted, adjudicate the claims on the merits, including the inextricably intertwined claim of entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. If the benefits sought are not fully granted, furnish the Veteran a supplemental statement of the case (SSOC), before the electronic claims file is returned to the Board, if otherwise in order. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Department of Veterans Affairs