Citation Nr: 1827191 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 05-28 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of fracture, right elbow. 2. Entitlement to an initial evaluation in excess of 40 percent for low back degenerative joint disease (DJD), status post traumatic injury and surgery. 3. Entitlement to an effective date earlier than February 1, 1995 for the grant of service connection for low back DJD, status post traumatic injury and surgery. REPRESENTATION Veteran represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 1995, October 2002, and August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2009, the Board denied claims for service connection for a bilateral leg disability, an evaluation in excess of 10 percent for residuals of fracture of the right elbow, an initial evaluation in excess of 40 percent for low back DJD status post-traumatic injury and surgery, and entitlement to an effective date earlier than February 1, 1995 for the grant of service connection for low back DJD, status post traumatic injury and surgery. In November 2011, the Court of Appeals for Veterans Claims (Court) issued a memorandum decision that vacated the part of the Board's January 2009 decision regarding earlier effective date. The Court also remanded the issues of increased ratings of low back and right elbow disabilities for further adjudication by the Board. In August 2012, the Board remanded these issues for new VA examinations and additional RO consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Increased Ratings for Right Elbow and Low Back The Board regrets any further delay in this case, but finds that a remand is required with respect to the claims for increased ratings for right elbow and low back disabilities. An additional VA examination is necessary in light of the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The Veteran's right elbow and low back were most recently examined by VA in January 2016 pursuant to the August 2012 Board remand; unfortunately, the examination reports do not meet the specifications of Correia. The examination report contains range of motion testing for what is presumably active motion, but not in passive motion, weight-bearing, and nonweight-bearing. An additional examination is therefore necessary under 38 C.F.R. § 3.159(c)(4) to ensure compliance with the decision in Correia. Earlier Effective Date Further development is necessary to comply with the terms of the May 2016 remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. In the November 2011 memorandum decision, the Court directed the Board to determine whether evidence the Veteran submitted within one year of the August 1986 rating decision was new and material for purposes of 3.156(b). Specifically, the Court directed the Board to consider whether the Veteran's August 19, 1986 submission of lay testimony to include a VA Form 21-4142 was new and material evidence under 38 C.F.R. § 3.156(b). These directives were also included in the Board's August 2012 remand. However, the December 2016 supplemental statement of the case (SSOC) provides a blanket denial of an earlier effective date, as it does not specify whether the Veteran's August 1986 submission of lay testimony and VA Form 21-4142 constitute new and material evidence under 38 C.F.R. § 3.156(b). As a result of this Stegall violation, further development is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his right elbow and low back disabilities. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. The examiner should provide the range of motion of the Veteran's right elbow and low back and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right elbow and low back are used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from 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. The examination report must confirm that all such testing has been made and reflect the results of the testing. 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 examiner must provide a complete rationale for any opinion given. 2. Then readjudicate the Veteran's claims with consideration of all the evidence of record. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case (SSOC) and return the case to the Board. Provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. 3. Readjudicate the Veteran's claim of entitlement to an effective date earlier than February 1, 1995 for the grant of service connection for low back DJD disability, to include a determination if the Veteran's August 19, 1986 submission of lay testimony, to include a VA Form 21-4142, is new and material evidence under 38 C.F.R. § 3.156(b). If the benefits sought on appeal are not fully granted, issue a SSOC and return the case to the Board. Provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. 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). _________________________________________________ M.H. HAWLEY 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).