Citation Nr: 21065906 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-18 313 DATE: October 27, 2021 REMANDED Entitlement to service connection for a recurrent right elbow disability, to include lateral epicondylitis, is remanded. Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to a rating in excess of 10 percent prior to August 19, 2020, and 20 percent on and after August 19, 2020, for lumbosacral strain is remanded. Entitlement to a rating in excess of 10 percent for right foot sprain residuals with degenerative joint disease is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1977 to June 1997. He served in Southwest Asia. The issues of entitlement to service connection for both a left shoulder disability and a left hand disability and increased ratings for right knee tendinitis/tendinosis with meniscal tear residuals and left knee tendinitis/tendinosis with meniscal tear residuals are the subject of a separate Board of Veterans' Appeals (Board) decision and will not be addressed below. 1. Entitlement to service connection for a recurrent right elbow disability, to include lateral epicondylitis, is remanded. In its January 2020 Remand instructions, the Board directed that the Veteran be afforded a Department of Veterans Affairs (VA) elbow examination. The examiner was requested to address "whether it is at least as likely as not that any right elbow disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." The report of an August 2020 elbow examination conducted for VA states that the Veteran was diagnosed with right lateral epicondylitis. The examiner related that the disability was diagnosed in 1991. The doctor concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." She commented that "after thorough review of service medical records, I was unable to find an encounter that addressed evaluation or treatment of right elbow condition" and "a nexus has not been established." The examiner did not address "whether it is at least as likely as not that any right elbow disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." Given the concurrent conflicting findings that the diagnosed right elbow disability was both diagnosed in 1991, a date during active service, and was not incurred in active service, the Board finds that the examination report is of limited probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that further VA elbow evaluation is needed. 2. Entitlement to service connection for a right hand disability is remanded. In its January 2020 Remand instructions, the Board directed that the Veteran be afforded a VA hand examination. The examiner was directed to address "whether it is at least as likely as not that any right hand disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." The report of an August 2020 hand examination conducted for VA states that the Veteran was diagnosed with right hand degenerative arthritis. The doctor concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." She commented that "after thorough review of service medical records, I was unable to find an encounter that addressed evaluation or treatment of right hand disability or condition" and "a nexus has not been established." The examiner did not address "whether it is at least as likely as not that any right hand disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." Given such deficiency, further right hand evaluation is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for a left hip disability is remanded. In its January 2020 Remand instructions, the Board directed that the Veteran be afforded a VA hip examination. The examiner was directed to address "whether it is at least as likely as not that any left hip disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." The report of an August 2020 hip examination conducted for VA states that the Veteran was diagnosed with left hip greater trochanteric bursitis. The examiner stated that the disability was diagnosed in 1991. The doctor concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." She commented that "after thorough review of service medical records, I was unable to find an encounter that addressed evaluation or treatment of left hip disability or condition" and "a nexus has not been established." The examiner did not address "whether it is at least as likely as not that any left hip disorder is (1) proximately due to a service-connected disability which include disabilities of the left knee, right knee, lumbar spine and right shoulder, or (2) aggravated beyond its natural progression by a service-connected disability." Given the concurrent conflicting findings that the diagnosed right elbow disability was both diagnosed in 1991, a date during active service, and was not incurred in active service, the Board finds that the examination report is of limited probative value. Given such deficiencies, further left hip evaluation is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to a rating in excess of 10 percent prior to August 19, 2020, and 20 percent on and after August 19, 2020, for lumbosacral strain is remanded. The report of an August 2020 spine examination conducted for VA states that the Veteran complained of progressive worsening radiating lumbosacral spine pain. On examination of the lumbosacral spine, the Veteran exhibited a range of motion of forward flexion to 50 degrees, extension to 10 degrees, lateral flexion to 20 degrees, bilaterally, and lateral rotation to 20 degrees, bilaterally; pain on "exam on rest/non-movement;" "pain with sitting and standing;" and "objective evidence of pain on non weight bearing. The examiner reported that repetitive-use testing was not performed due to severe pain and the lumbosacral spine disability impacted the Veteran's ability to work as he "has difficulty with prolonged standing, sitting, bending forward." The Board observes that while she noted that the Veteran exhibited significant pain even at rest, the examiner did not indicate at what degree of lumbosacral spine motion that the Veteran exhibited pain. In light of such deficiency, the Board finds that the functional loss associated with the service connected lumbosacral spine disability is unclear and the examination report is of limited probative value. Clinical documentation dated after August 2021 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 5. Entitlement to a rating in excess of 10 percent for right foot sprain residuals with degenerative joint disease is remanded. The report of a March 2021 foot examination conducted for VA conveys that the "Veteran's diagnosis was "changed from the previous service connected diagnosis to pes planus, right Morton's neuroma, bilateral metatarsalgia, and bilateral hallux valgus." The nurse practitioner clarified that "the Veteran was previously diagnosed with degenerative arthritis in 1993, p. 28" and "his bilateral flat foot (pes planus), right Morton's neuroma, bilateral metatarsalgia, bilateral hallux valgus are new diagnoses that are separate and unrelated to the service-connected diagnosis." In light of the examiner's statements, the Board is unable to discern what are the current symptoms associated with the service connected right foot disability and the disability associated with such symptoms. Therefore, further foot evaluation is needed. 6. Entitlement to a TDIU is remanded. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. The claim is inextricably intertwined with other issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any right elbow, right hand, and left hip disabilities and the service connected lumbosacral spine and right foot disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after August 2021. 3. Schedule the Veteran for a VA elbow examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right elbow disabilities and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right elbow disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent right elbow disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent right elbow disability is due to or caused by the service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent right elbow disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service connected disabilities. 4. Schedule the Veteran for a VA hand examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right hand disabilities and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right hand disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right hand disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent right hand disability is due to or caused by the service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent right hand disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service connected disabilities. 5. Schedule the Veteran for a VA hip examination conducted by a medical doctor to assist in determining the nature and etiology of any identified left hip disabilities and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all left hip disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left hip disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent left hip disability is due to or caused by the service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent left hip disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service connected disabilities. 6. Schedule the Veteran for a VA examination conducted by a medical doctor who has not previously examined the Veteran, to assist in determining the current nature and severity of the service connected lumbosacral strain. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbosacral spine. The examiner should state whether there is any additional loss of lumbosacral spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The degree of range of motion at which pain is exhibited should be specifically reported. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the lumbosacral spine due to pain or any other symptoms during flare ups or with repeated use. (c) Note any incapacitating episodes associated with the lumbar spine disability, and the duration and frequency. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether or not there is any ankylosis of the spine or any segment of the spine. 7. Schedule the Veteran for a VA foot examination conducted by a medical doctor to assist in determining the current nature and severity of the service connected right foot sprain residuals with degenerative joint disease. The examiner should specifically state the current impairment, if any, associated with the service connected right foot disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.