Citation Nr: 21064969 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-19 238 DATE: October 22, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for right elbow osteoarthritis, prior to August 2, 2018, is remanded. Entitlement to a rating in excess of 20 percent for right elbow osteoarthritis, after August 2, 2018, is remanded. Entitlement to an initial schedular rating higher than 10 percent for left foot hallux valgus is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from March 1980 to March 1984, March 2003 to August 2003, and August 2010 to July 2011. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board issued a decision in April 2020 granting service connection for left elbow latera epicondylitis, lumbar spine degenerative disc disease and osteoarthritis, and right foot hallux valgus, as well as granting an initial rating of 10 percent for left foot hallux valgus and denying an initial rating higher than 10 percent for right elbow osteoarthritis prior to August 2, 2018. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's April 2020 decision pertaining to the increased rating for right elbow osteoarthritis and left foot hallux valgus and remanded the claim to the Board for readjudication. 1. Prior to August 2, 2018, entitlement to an initial rating higher than 10 percent for right elbow osteoarthritis is remanded. 2. After August 2, 2018, entitlement to a rating in excess of 20 percent for right elbow osteoarthritis is remanded. The Veteran appeals her denial of an increased rating for her right elbow osteoarthritis. In the Court's JMPR, the Parties agreed that the Board erred by failing to ensure that the August 2018 and November 2012 VA examinations were adequate. It was found that the August 2018 VA examination failed to adequately address the Veteran's functional loss after repeated use over time. The examiner did not adequately explain her finding that it would be speculative to provide such an opinion without directly observing it. Whereas the November 2012 VA examination failed to opine on the functional loss of the Veteran's reported flare-ups in terms of the degree of additional loss of range of motion. The Parties also agreed that the Board failed in its duty to assist with regard to outstanding treatment records. It was found that the Veteran had outstanding VA treatment records that were not associated with the file. Specifically, there are records that were scanned into Veterans Health Information Systems and Technology Architecture (VISTA) but have not been associated with the records, as well as records from Salt Lake City VA dated August 2011 to March 2012, May 31, 2012, and physician recommendations received in September 2012. The Parties also addressed the Veteran noted seeing an outside therapist, and that the Board did not discuss whether adequate efforts were made to obtain these records. The VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, and no adequate efforts were undertaken to obtain these records. See 38 C.F.R. § 3.159 (e)(2). Finally, the parties agreed that the Veteran did not intend to limit her appeal for an increased rating for a right elbow disability to 20 percent from August 2, 2018. Accordingly, that issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). On remand, the RO should associate all VISTA records, to include from Hilltop Physical Therapy, and any other outstanding VA treatment records, to include from Salt Lake City VA, with the claims file. The Veteran should also be given the opportunity to submit or authorize VA to obtain any outstanding private treatment records referable to her claimed disorders. Once that development is completed, the Veteran must be afforded a new VA examination in order to ascertain the current severity of the right elbow osteoarthritis with functional loss during flare-ups and in weightbearing and passive motion. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). 3. Entitlement to an initial schedular rating higher than 10 percent for left foot hallux valgus is remanded. The Veteran appeals her denial of an increased rating for her left foot hallux valgus. In the Courts JMPR, the parties agreed that the records from Salt Lake City VA may pertain to the Veteran's claim for an increased rating for her left foot hallux valgus. Also, the Parties noted there were outstanding VA treatment records from Las Vegas VA Medical Center. On remand, the RO should associate any outstanding VA treatment records, to include from Las Vegas VA Medical Center from 1999 through 2010. The matters are REMANDED for the following actions: 1. Obtain the Veteran's outstanding VA treatment records to include from VISTA electronic records system, Hilltop Physical Therapy, Salt Lake City VA dated August 2011 to March 2012, May 31, 2012, and physician recommendations received in September 2012, and Las Vegas VA Medical Center from 1999 through 2010. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for right elbow osteoarthritis and left foot hallux valgus condition, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for her right elbow osteoarthritis and left foot hallux valgus from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right elbow osteoarthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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 examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.