Citation Nr: 21068454 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-44 577 DATE: November 10, 2021 REMANDED 1. Entitlement to an initial (from June 28, 2014) rating in excess of 10 percent for left elbow limitation of flexion and pain as residuals of olecranon fracture with loose bodies (left elbow limitation), under Diagnostic Code (Code) 5206, is remanded. 2. Entitlement to increases in the staged (0 percent prior to December 30, 2019 and 10 percent from that date) ratings assigned for left elbow osteoarthritis as a residual of left olecranon fracture with loose bodies under Codes 5206-5003, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1977 to April 1984. The matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) rating decision. In May 2019 and May 2020, the matters were remanded for additional development. [The May 2020 remand requested further development only on the matter of the rating for left elbow osteoarthritis (under Code 5206-5003). However, as explained below, the Board finds it proper to also remand the issue of the rating for left elbow limitation of flexion (under Code 5206) (to acknowledge/reconcile that the Veteran has received separate ratings based upon the same symptomatology, which is prohibited; see 38 C.F.R. §4,14).] 1. , 2. Entitlement to increases in the separate ratings assigned for left elbow limitation of flexion and osteoarthritis. Unfortunately, there has not been substantial compliance with the Board's previous remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2020 Board remand pointed out that the Veteran was receiving (two separate) 10 percent ratings for left elbow limitation and osteoarthritis (from June 28, 2014 under Code 5206 and from December 30, 2019 under Code 5206-5003) (according to the January 2020 rating decision). Two (separate)10 percent ratings under Code 5206 would constitute pyramiding symptoms. 38 C.F.R. § 4.14; see also Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013). The remand requested the Agency of Original Jurisdiction (AOJ) to readjudicate (and issue a supplemental statement of case (SSOC) addressing) the two, separate 10 percent ratings under Code 5206. The July 2020 SSOC (pursuant to the May 2020 Board remand) discussed the 10 percent rating under Code 5206-5003 (and explained why a higher evaluation of 20 percent was not warranted) but did not address the 10 percent rating (effective June 28, 2014) under Code 5206. [The Board also notes that combination of ratings under Codes 5003 and 5206 is expressly prohibited (see Note 1 following Code 5003)] Therefore, development for a clarifying SSOC that explains the actions by the originating agency is necessary. The matters are REMANDED for the following: 1. Review the Veteran's record, including specifically the (two separate) 10 percent ratings (from June 28, 2014 under Codes 5206 and (from December 30, 2019) 5206-5003) listed in the January 2020 rating decision codesheet. 2. Issue a clarifying SSOC explaining (considering the provisions in 38 C.F.R. § 4.14 and 38 C.F.R. §4.71(a), Code 5003 and note 1 following) the assignment of those separate ratings (i.e., identify the regulatory provisions that allow for such assignment of separate ratings, for apparently the same symptoms under the same criteria, both apparently for the same symptomatology, with the addition of a hyphenated code including Code 5003 which includes directives that specifically prohibit combination with a Code based on limitation of motion). The explanation should include some discussion of any separate and distinct symptoms and impairment that would support assignment of separate ratings. 3. Afford the Veteran and his representative an appropriate opportunity to respond. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.