Citation Nr: 1815486 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-16 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent for a right elbow joint spur, to include the propriety of a rating reduction from 50 to 10 percent effective February 1, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from September 1986 to December 1986 and from October 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The November 2011 rating decision decreased the evaluation from 50 percent to 10 percent for right elbow joint spur, effective February 1, 2012. The Veteran appealed the propriety of the reduction and also requested an increased evaluation. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran and his representative have argued that the VA examinations conducted in 2010 and 2014 were inadequate because they did not comply with the holding of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158, 166 (2016). The Board agrees that these examinations were not compliant with Correia. Although not specifically raised by the Veteran or his representative, the examinations also do not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court in Correia 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran's right elbow joint spur. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right elbow joint spur. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The Board requests the examiner to: (a) Identify all right elbow joint spur pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight bearing and non-weight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint. 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. (b) Describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c) State whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. If any benefit on appeal remains denied, the AOJ should issue a Supplemental Statement of the Case. After the Veteran and his representative are given opportunity to respond, the case should be returned to the Board, if otherwise in order. The Veteran and his representative have the right to submit additional evidence and argument on the matter 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). _________________________________________________ Donnie R. Hachey 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).