Citation Nr: 21062284 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-06 960 DATE: October 6, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left elbow bursitis is remanded. Entitlement to a total disability rating for compensation based on the unemployability of the individual (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from March 1983 to July 1991. The matter of left elbow bursitis comes before the Board of Veterans' Appeals (Board) initially from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2018 decision, the Board remanded the issue for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in March 2020, at which time the Board denied the claims. In July 2021, the Veteran appealed to the Court of Appeals for Veterans Claims (Court), which approved a joint motion for partial remand (JMPR) in which the parties agreed that the Board had relied on three inadequate VA examinations in denying a rating in excess of 20 percent for the elbow bursitis, and therefore failed to ensure compliance with the VA's duty to assist and provide adequate reasons and bases for its decision. The JMPR also held that the Veteran satisfied the criteria for schedular TDIU as of 2015, yet the Board erred in applying 38 C.F.R. § 4.16(b) for an analysis of extraschedular TDIU instead. Additionally, the parties agreed that the Board's conclusion that the Veteran was capable of substantially gainful employment was conclusory and speculative. Therefore, both issues were remanded to the Board to ensure compliance with the VA's duty to assist and to support its decisions with adequate reasons and bases. The Board sincerely regrets the delay; however, the issues must be remanded again for further development and a new, adequate VA examination. 1. Entitlement to a rating in excess of 20 percent for left elbow bursitis is remanded. The Veteran's most recent VA examination for the left elbow took place in November 2018. Unfortunately, the examiner failed to substantially comply with the Board's July 2018 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 remand order, the Board requested that the VA provide the Veteran a new left elbow examination and that, "with respect to range of motion testing, this must be conducted on active and passive motion and in weightbearing and nonweight bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016))," and that, "if the examiner is unable to conduct the required testing or finds that this testing is medically inappropriate in this case, he or she should clearly explain why that is so." The Board also required that the examiner "either estimate functional loss due to flares based on all the evidence of record, including lay information or explain why he or she cannot do so," and that "the examiner's determination in this regard 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." Id. at 398 (citing Sharp v. Shulkin, 29 Vet. App. 26 (2017)). At the November 2018 VA examination, the examiner stated that he was unable to say without resorting to speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability on repeated use or during flare-ups because the Veteran "was not evaluated" on repeated use or during a flareup. This finding is inadequate under Sharp and did not comply with the July 2018 remand orders set out above. Regarding the testing required under Correia, the examiner stated that pain "limits bending" on passive range of motion, on weightbearing, and in non-weightbearing conditions, but he did not describe that limitation in terms of degrees. Accordingly, on remand, the Board must obtain a new left elbow examination that complies with its July 2018 remand order. See D'Aries, 22 Vet. App. at 105; Stegall, 11 Vet. App. at 271. 2. Entitlement to a total disability rating for compensation based on the individual unemployability (TDIU) is remanded. Here, the left elbow bursitis and TDIU claims are inextricably intertwined. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (holding that, where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). As explained by the Board in the July 2018 decision, the Veteran "noted left elbow bursitis (limitation of flexion), on the May 2015 Form 21-8940 as a service-connected disability that prevented him from securing or following any substantially gainful occupation." Because a decision on the increased rating of left elbow bursitis could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for both left elbow bursitis and TDIU is required. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to clarify his work history from May 2015 to the present. 2. Obtain the Veteran's VA treatment records for the period from May 2016 to the present. 3. Afford the Veteran an appropriate VA examination to determine the severity of his left elbow disability. The examiner must conduct a full and thorough review of the evidence of record to include lay statements from the Veteran, as well as this remand. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and non-weight-bearing conditions. If the examiner is unable to conduct the required testing or finds that this testing is medically inappropriate, he or she must clearly explain why that is so. Further, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran. The examiner must either 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 he or she cannot do so. The examiner's determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flareups. The examiner must also comment on the functional effects of the Veteran's service-connected left elbow disability. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, Associate 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.