Citation Nr: 1809286 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-18 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Evaluation of left elbow olecranon bursitis, currently evaluated as 10 percent disabling. 2. Evaluation of left cubital tunnel syndrome (CTS) with ulnar neuropathy, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a back disability, characterized as chronic lumbar strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May to August 2008 and from September 2008 to August 2009. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. VA will notify the Veteran when further action, on his part, is required. REMAND Left Elbow During the pendency of this appeal, a new precedential opinion that directly affects the Veteran's claim for an increased rating for his left elbow disability has been issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the previous VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. It also does not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Left CTS with ulnar neuropathy The Veteran last underwent a VA examination to evaluate his left CTS with ulnar neuropathy in March 2013. In a January 2017 statement to VA, his representative asserted that the previous examination was too far remote to provide a proper evaluation of the Veteran's service-connected disability. Although the representative indicated, incorrectly, that the last examination took place in January 2000, the Board agrees that the March 2013 examination is sufficiently remote to warrant an update. In addition, the Board finds that, in light of the possibility that left CTS symptoms could be discussed in a VA examination of the left elbow, the mandated remand of the left elbow disability above could provide information concerning the left CTS disability. Thus, a remand is warranted. Back disability Finally, the record shows that, in connection with his claim for service connection for a back disability, the Veteran was scheduled for a VA examination in April 2014. The record subsequently reveals that the Veteran failed to report to the scheduled VA examination. Generally, where, as here, a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (b) (2017). However, an exception occurs when a veteran shows good cause for a failure to report. See 38 C.F.R. § 3.655 (a). A review of the record shows that the Veteran was incarcerated in both state and Federal facilities from December 2013 until October 2016. Thus, the Board finds that good cause exists for the Veteran's failure to report for the VA examination. The record indicates that the Veteran has previously reported for VA examinations when scheduled, thus showing his willingness to undergo such examinations. The Board finds that the Veteran should be given another opportunity to report for a VA examination in conjunction with his claim for service connection for a back disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to determine the nature, severity and extent of his current left knee pathology. In order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should test and record the range of motion for the in active motion, passive motion, weight-bearing, and nonweight-bearing. 2. Schedule the Veteran for a VA examination to identify the nature, extent and severity of all manifestations of his service-connected left carpal tunnel syndrome. 3. Schedule the Veteran for an appropriate VA examination to determine the etiology of any lower back disability. All medically necessary tests should be performed. The record should be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions, to specifically include his lay statements regarding the onset of his back disability. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or higher degree of probability) that the Veteran's lower back disability began in, or is otherwise related, to his military service. The examiner is advised that the Veteran's in-service back injury has been conceded. All examination findings, along with complete rationale for the conclusions reached, must be provided. The Veteran 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 (2012). _________________________________________________ R. FEINBERG 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).