Citation Nr: 20021092 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-27 100 DATE: March 24, 2020 REMANDED Entitlement to a disability rating in excess of 0 percent for residuals of a left radius osteoid osteoma is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from August 1975 to April 1978. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2018, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). The Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103. In a June 2018 decision, the Board denied this claim. The Veteran appealed that decision to the Veterans Court. In a May 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision in part, and remanded this issue to the Board for additional development consistent with the Joint Motion. In June 2018, the Board also denied entitlement to service connection for a cervical, thoracic, and/or lumbar spine disability, a right and/or left shoulder disability, a right and/or left hand disability, to include carpal tunnel syndrome, a right and/or left knee disability, and a right and/or left ankle disability. The parties to the Joint Motion agreed that, to the extent of those matters, the Board’s decision should not be disturbed, and any appeal as to those matters is abandoned. Entitlement to a disability rating in excess of 0 percent for residuals of a left radius osteoid osteoma is remanded. The parties to the Joint Motion agreed that partial vacatur of the Board’s decision and remand of the Veteran’s claim for a compensable disability rating for the service-connected left arm disability are appropriate in this case because the Board failed to ensure satisfaction of the duty to assist under 38 U.S.C. § 5103A(d) when it failed to provide the Veteran with an adequate medical examination of his left arm disability. The parties to the Joint Motion also agreed that the March 2011 examination was not premised on consideration of the Veteran’s accurate medical history and did not provide the Board with sufficient information to render a fully informed decision on this claim. The parties agreed that the examiner did not render a clear conclusion, supported by an analysis that connects the conclusion with supporting data, so as to allow the Board to weigh the examination against other evidence of record (Record 05/22/2019 at 3). Specifically, the parties agreed that, during the examination, the Veteran reported that “he is having some pain in his arm again and [he] states he is unable to carry anything.” However, upon examination of the Veteran’s left arm, the medical examiner noted only that the Veteran retained the ability to extend his elbow without difficulty or residual pain. The examiner also noted that the Veteran’s activities of daily living were not affected by his disability, and that the Veteran experienced “no increased pain on repetitive movements.” The examiner concluded that “the function of the forearm is stable.” The examiner stated that “[r]ange of motion is noted” but did not specify the results of any range of motion testing. Nor did the examiner provide any objective information regarding the Veteran’s asserted inability to carry objects with his left arm. Given this lack of information regarding the Veteran’s functional abilities with the left arm, and given the Veteran’s clear assertion that his left arm disability renders him unable to carry “anything” with his left arm, the parties agreed that the examiner’s failure to provide any objective examination information regarding the Veteran’s ability to carry with the left arm renders the March 2011 medical examination inadequate. Thus, the parties agreed that the examiner failed to provide an examination that allows the Board to render a fully informed decision on the claim presented. The parties also agreed that remand was warranted for an adequate medical examination that addresses the Veteran’s ability to carry with the left arm in light of his left arm disability. The parties to the Joint Motion did not address VA’s efforts to obtain another VA examination in January 2017, to which the Veteran failed to report. This was discussed in detail in the Board’s decision. The parties to the Joint Motion neither found this discussion to be adequate or inadequate. The parties also did not discuss the Board hearing in March 2018, at which the Veteran was afforded an additional 60 days to submit evidence in support of his claim, but did not do so. Nevertheless, the Board is bound by the findings contained in the Joint Motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court’s prior action with respect to the same claim). The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the manifestations and functional impairment caused by the service-connected residuals, removal, osteoid osteoma, left radius. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is requested to complete the most appropriate examination(s) DBQ(s) in light of the Veteran’s reported symptomatology. The VA examiner is requested to specifically address the Veteran’s ability to move any affected joint(s), to manipulate objects with his left upper extremity, as well as to lift and to carry objects with his left upper extremity. The examiner should assess the impact of the disability on the Veteran’s earning capacity and activities of daily living. Range of motion should be reported with active and passive motion, and with weight-bearing and non-weight-bearing. Comparison should be made to equivalent joints on the nonservice-connected right arm. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.