Citation Nr: 21069030 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-54 874 DATE: November 17, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to December 17, 2018, and in excess of 20 percent on and thereafter for the service-connected right elbow limited flexion is remanded. Entitlement to an initial rating in excess of 10 percent for the service-connected right elbow limited supination is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to June 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, and awarded separate compensable evaluations of 10 percent each, for limited supination and limited flexion of the right elbow. In February 2019 and March 2021, the Board remanded these initial increased rating claims for further development. After completion of the development instructed in the March 2021 Board remand, the RO awarded an increased evaluation of 20 percent, effective from December 17, 2018, for the Veteran's service-connected right elbow limited flexion. As higher ratings remain available, this matter remains on appeal. In a due process waiver received in September 2021, the Veteran's representative waived the remaining time and the opportunity to present additional argument. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Initial rating in excess of 10 percent prior to December 17, 2018, and in excess of 20 percent on and thereafter for the right elbow limited flexion Initial rating in excess of 10 percent for the right elbow limited supination In March 2021, the Board remanded this appeal to accord the Veteran an updated VA examination. The Board directed the examiner to include the ranges of motion of the Veteran's right elbow in active and passive range of motion, as well as on weight-bearing and nonweight-bearing, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also requested that the examiner address the functional impairments due to the Veteran's right elbow joint disability and the effect of such on any occupational functioning and activities of daily living. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Here, the August 2021 VA examiner diagnosed right elbow limited flexion and right elbow limited supination. The examiner included active range of motion testing and indicated that the passive range of motion was the same but did not address or appear to perform range of motion testing in weightbearing and non-weightbearing. In responding to the Correia questions, the examiner noted that there was pain on active and passive range of motionand when the joint is used in weightbearing and non-weightbearing but did not provide any range of motion measurements or indicate whether the Veteran's pain impacted his range of motion. Unfortunately, this amounts to only a cursory consideration of Correia and renders the examination inadequate for rating purposes. Stegall, 11 Vet. App. at 271. The examiner further noted that pain was shown on the examination but failed to note at which point the Veteran experienced this pain in any range of motion testing. The examiner indicated that the pain does not result in or cause functional loss but failed to note whether the Veteran's pain manifested in additional loss of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examiner noted that the Veteran's right elbow limited flexion and limited supination impact his ability to work as he avoids lifting or carrying heavy objects but did not note any further impairments or address the impact of these disabilities on his daily living and occupational functioning. Because the August 2021 examination report failed to provide full range of motion testing of his right elbow and failed to include information regarding functional loss attributable to pain in range of motion testing, the Board finds the examination to be inadequate for rating purposes. As such, there has not been substantial compliance with the directives of the March 2021 Board remand. Stegall, 11 Vet. App. at 271. Accordingly, a remand is necessary for corrective action, to include obtaining a new examination that adequately addresses the current severity of the Veteran's right elbow limited flexion and limited supination disabilities. The Board acknowledges that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's right elbow limited flexion is currently rated under Diagnostic Code 5010-5206. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Thus, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5010 pertained to traumatic arthritis which was rated as degenerative arthritis under Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, degenerative or traumatic arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating requires X-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Beginning February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is rated under limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Again, while the August 2021 examiner addressed some symptoms of the Veteran's right elbow disabilities, the examination report did not solicit the full picture of these conditions and does not contain all information required to assess the severity of these disabilities under the appropriate diagnostic codes. On remand, therefore, the nature and severity of the Veteran's right elbow limited flexion and limited supination disabilities should be adequately assessed, and the examination obtained should be compliant with the requirements set out in Correia and the new appropriate diagnostic codes. This matter is, thus, REMANDED for the following: Schedule the Veteran for a VA examination to determine the current severity of his service-connected right elbow limited flexion and limited supination. The claims file should be made available to, and reviewed by, the examiner. All indicated tests and studies must be accomplished. All clinical findings found on examination to be associated with this disability must be reported in detail, to include, but not limited to, any limitation of motion of the Veteran's right elbow and the symptoms required for assessing this disability under the appropriate diagnostic criteria. The examiner should test the range of motion and pain in the Veteran's right elbow in active and passive motion and in weight-bearing and nonweight-bearing and should provide the range of motion measurements for such testing using a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and after repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must opine as to whether there would be additional limits on functional ability during flare-ups. All loses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding the Veteran's flare-ups by alternative means. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's right elbow joint disabilities alone and discuss the effect of these disabilities on any occupational functioning and activities of daily living. The examiner is also advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.