Citation Nr: 21068094 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-04 669A DATE: November 9, 2021 REMANDED Entitlement to service connection for a right elbow disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2011 to May 2012. These matters are on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2021 the Board remanded this issue for additional development. Per the May 2021 remand instructions, the Veteran underwent a VA examination in July 2021. The examiner opined that the Veteran's claimed right elbow disability was less likely than not incurred in or caused by the claimed in-service event, injury or illness as no chronic diagnosis was made for the claimed elbow disability. The examiner also noted that there was no evidence of an elbow condition on x-rays or in the Veteran's medical or military records and the objective examination was normal. The symptoms were subjective only. However, the examiner also noted that the Veteran presented with complaints of right elbow pain as the Veteran reported right elbow pain with lifting. The Veteran reported having pain in his inside antecubital area with activity only. The examiner noted that the Veteran denied any joint pain in the right elbow and it was believed that it may be related to his already service-connected bicep tendonitis. The Board notes that while the July 2021 VA examiner found that the Veteran did not have a current right elbow diagnosis, the current disability definition for VA compensation purposes is broad and includes functional impairment due to pain. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). As noted by the May 2021 Board remand, the Veteran's treatment records note that the Veteran has been suffering from right elbow pain and during his Board hearing, the Veteran stated that his right elbow began hurting when he was in service. He also stated that the pain would shoot down from his shoulder to his elbow. As noted above, under Saunders, pain is considered a current disability if manifested by functional impairment. Thus, the Board finds that the evidence currently of record is insufficient to resolve the claim for entitlement to service connection for a right elbow disability, and that further development is warranted so an examiner can provide an opinion to determine whether the Veteran has a current right elbow disability that is related to his service. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). Additionally, as noted above, the July 2021 VA examiner indicated the Veteran reported having pain in his inside antecubital area with activity only, denied any joint pain in the right elbow and it was believed that it may be related to his already service-connected bicep tendonitis. The Board notes that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Accordingly, a remand is required in order for the Veteran to undergo a new VA examination to determine whether the Veteran has a right elbow disability that is distinct from his bicep tendonitis disability. If a right elbow disability is determined to exist distinct from the bicep tendonitis, the examiner should determine whether it is at least as likely as not that the distinct right elbow disability is related to service or secondary to his service-connected bicep tendonitis disability. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the above development has been accomplished, schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of his claimed right elbow disability. The examiner should provide an opinion regarding whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran has a current right elbow disability, or functional impairment in the right elbow, and if so, whether the Veteran's right elbow disability/functional impairment is a symptom of his service-connected bicep tendonitis disability, or whether it is a distinct disability. If it is determined that the right elbow disability/functional impairment is a distinct disability, the examiner should determine if it is at least as likely as not (50 percent or greater probability) that the right elbow disability/functional impairment had its onset in service or is otherwise related to active service; or was caused or permanently aggravated by his service-connected lumbar bicep tendonitis. If the examiner finds that the Veteran has a current right elbow disability/functional impairment that is a distinct disability that has been permanently aggravated/worsened by a service-connected bicep tendonitis disability, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.