Citation Nr: 21065194 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-28 495 DATE: October 25, 2021 REMANDED The claim for service connection for a right elbow disability, claimed as right elbow injury with residual loss of motion and extension, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to March 1980. The Department of Veterans Affairs (VA) is grateful for his service. In January 2018, the Board of Veterans' Appeals (Board) reopened and remanded the claim for service connection for a right elbow disability. The Board remanded the claim again in January 2020 and August 2021 for additional development. Regrettably, remand is again necessary due to failure to substantially comply with the Board's remand instructions. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). The claim for service connection for a right elbow disability, claimed as right elbow injury with residual loss of motion and extension, is remanded. The Veteran contends that his current right elbow disability, manifested by loss of motion and extension, is the result of his falling backwards and landing on his right elbow when a welding machine landing on his right hand, lacerating fingers and amputating one. The Veteran was afforded a VA examination in June 2021 addressing the right elbow. The examiner noted a clinical history of right elbow swelling which by 2010 had worsened to the point that it interfered with his occupation driving an 18-wheel truck, such that he had to frequently stop to ice down the elbow and he would lose grip strength in his hand. He had surgery in September 2014 to remove a bone mass/spur in the elbow and to repair a triceps tendon. X-rays in 2019 and 2020 revealed severe arthritis of the right elbow, with the Veteran no longer able to fully extend his arm at the elbow. He was scheduled to begin physical therapy in the next month and to undergo an MRI. The examiner noted diagnosed olecranon bursitis of the right elbow in 2010, diagnosed osteoarthritis of the right elbow in 2013, and diagnosed gout in both elbows in approximately 2012. The Veteran reported at the June 2021 examination that his right elbow condition had its onset in 1977 when he was moving heavy machinery and fell backward, landing on the right elbow and back and the machine falling onto his right hand. He reported that the elbow had been swollen since that time. The examiner noted that the Veteran's February 1980 discharge examination noted a partial amputation of a finger of the right hand but not any problem with the elbow. The examiner opined that it was not at least as likely as not that the Veteran's right elbow disability was caused by the claimed in-service injury, event, or illness. The examiner then explained that it was "not possible to assert that osteoarthritis, olecranon bursitis and history of exostosis which was surgically removed, are due solely to the injury sustained during service, and there is no mention of an elbow problem cited in exams during service, and the Veteran has a diagnosis of gout in both elbows. In addition[,] he drove an eighteen wheeler for many years after service which could account for pain, bone spur and bursitis." In August 2021, the Board remanded the claim because the June 2021 examiner provided an opinion against all of the Veteran's identified disabilities of the right elbow being causally related to service, whereas service connection could be established for a single disability of the elbow and not others, and hence the medical opinion failed to address each potential basis of entitlement. All potential theories of entitlement to a benefit under the law and regulations implicated by the record must be considered. Floyd v. Brown, 9 Vet. App. 88 (1996). In August 2021, rhe Board accordingly instructed that the examiner upon remand must provide a separate opinion for each identified disability of the right elbow. This should have included at least the osteoarthritis, olecranon bursitis, status post excision of exostosis, and gout, which were each identified by the June 2021 examiner. Regrettably, an examiner in August 2021 failed to provide nexus opinions separately addressing each condition of the right elbow, instead only providing a general opinion speaking to "the claimed condition." Hence, an addendum or new examination is warranted. The matter is REMANDED for the following actions: 1. Obtain and associate with the record any unobtained records of treatment or hospitalization. 2. Return the claims file to the August 2021 VA examiner for an addendum with new nexus opinions. If an addendum cannot be obtained, then a new examination addressing these instructions should be provided. The examiner must be informed that the August 2021 examination report was deficient because separate opinions were not provided for each identified condition of the right elbow present during the claim period. The examiner should note that this should, at minimum, include a separate opinion for the conditions of the right elbow identified by the June 2021 VA examiner: osteoarthritis, olecranon bursitis, status post excision of exostosis, and gout. The examiner should carefully review the June 1977 service treatment records documenting the injury to the middle and fourth fingers of the right hand, and should note that this is the incident which the Veteran contends resulted in a right elbow injury by his falling backwards and landing on his right elbow when a welding machine landed on his right hand, lacerating fingers and amputating one. The examiner should consider the inconsistencies between service records and the Veteran's self-reported history. The examiner should also review the balance of service and post-service records. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for each identified condition of the right elbow present during the claim period, to include osteoarthritis, olecranon bursitis, status post excision of exostosis, and gout (thus, at minimum, four separate opinions), the examiner must opine whether the condition at least as likely as not (50 percent or greater probability) developed in service or is otherwise causally related to service, including related to the June 1977 incident which resulted in lacerated fingers. The examiner should provide a separate rationale (explanation supported by facts of record and medical knowledge) for each opinion expressed. (Continued next page) 3. Thereafter, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.