Citation Nr: 21003061 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-39 627 DATE: January 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to January 9, 2020, and in excess of 20 percent thereafter for bursitis of the left elbow is remanded. Entitlement to an initial compensable rating prior to January 9, 2020, and a rating in excess of 10 percent thereafter for impairment of supination and/or pronation (forearm) is remanded. Entitlement to an initial compensable rating for limitation of extension, left elbow is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1974 to December 1977. This matter comes before the Board of Veterans’ Appeals on appeal from rating decisions issued in January 2016 and September 2017 by a Department of Veterans Affairs (VA) Regional Office. An August 2018 Board decision denied the issues on appeal, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Partial Remand (JMR) finding the duty to assist had not been satisfied with respect to the adequacy of a September 2017 examination. Specifically, the JMR stated that the September 2017 VA examiner did not adequately explain the basis for the conclusion that a non-speculative opinion cannot be offered as to whether pain, weakness, fatiguability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used over a period of time. Furthermore, the JMR found the Board should obtain a VA examination that complies with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In September 2019, the Board remanded the issues for development in accordance with the JMR. Specifically, the Veteran was afforded a VA examination in January 2020 and, consistent with the findings therein, an August 2020 Decision Review Officer Decision granted an increased rating of 20 percent for bursitis of the left elbow, an increased rating of 10 percent for left elbow impairment of supination and/or pronation (forearm), and service connection for limitation of extension, left elbow, each effective January 9, 2020, respectively. Although the Veteran did not submit a formal disagreement with the initial rating assigned for limitation of extension, left elbow, the Board finds the issue is part and parcel of the increased rating claims on appeal. Moreover, the Veteran’s representative submitted a Post-Remand Brief in December 2020 stating asserting the Veteran’s left elbow disability, and more specifically, the impairment in terms of ranges of motion of such, had worsened. The Veteran representative further reported that the Veteran has marked interference with his daily activities, presents significant deficits with activities of daily living, continues to have symptoms of incapacitating attacks of pain, functional loss due to weakness, fatigability, incoordination or pain on movement of a joint, and limitation of motion due to pain on use, including use during flare-ups. Upon review, the Board finds that the Post-Remand Brief regarding the Veteran’s current symptomatology regarding his left elbow and forearm demonstrates a potential increase in severity of his disabilities since his most recent VA examination. Moreover, the Board ascertains that a retrospective opinion addressing the findings from the September 2017 VA examination would be useful in properly assessing the severity of impairment throughout the pendency of the appeal. Consequently, a remand is warranted to schedule the Veteran for a new examination and addendum opinion. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected left elbow disability and impairment of supination and/or pronation (forearm). If possible, such should be scheduled during a flare-up. The VA examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s bursitis of the left elbow disability, impairment of supination and/or pronation (forearm), and limitation of extension, left elbow under the rating criteria. The VA examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups (if reported), and the degree of functional loss during flare-ups (if reported) and after repetitive use over time and offer an opinion, expressed in terms of degrees, if possible, regarding ranges of motion during such flare-ups and after repeated use over time. To the extent possible, the examiner is to identify any symptoms and functional impairments due to the service-connected left elbow and forearm disabilities and discuss the effects of such on his occupational functioning and activities of daily living. Following a review of the VA examination conducted in September 2017, the examiner is requested to offer an opinion, expressed in terms of degrees, if possible, regarding ranges of motion during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Board notes that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. A complete rationale for any opinion offered should be provided. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, Counsel 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.