Citation Nr: 21070325 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-04 265 DATE: November 23, 2021 REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral pinguecula is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 to September 1996 and from August 2006 to August 2012. In June 2020, the Board denied the Veteran's claims for service connection for a left elbow disability and an evaluation in excess of 10 percent for bilateral pinguecula. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC); and in June 2021, the Secretary and the Veteran filed a Joint Motion for Partial Remand (JMPR) which was granted by the CAVC in a June 2021 Order. The parties to the JMPR determined that the Board failed to provide an adequate reasons or bases that considered and discussed whether the November 2019 VA examination substantially complied with the Board's previous January 2019 directive in light of the notations contained in the 2014 private treatment records for the claimed left elbow disability and whether the November 2019 VA examination's indication that the Veteran did not have a documented visual field defect substantially complied with the January 2019 remand directive. The June 2020 Board decision with respect to these issues were vacated, and the matter was remanded for the Board to readjudicate them accordingly. 1. Service connection for a left elbow disability A remand is required in order to substantiate the Veteran's claim that he has a current left elbow disability. His service treatment records indicate that he had an acute tendonitis of left elbow in February 2011. In March 2011, the elbow tendonitis was listed as "acute" problem. A May 2011 x ray of the left elbow showed a normal elbow. A July 2012 VA examiner determined that the Veteran does not have a current diagnosis for left elbow based on physical examination and a normal x ray taken for the examination. The objective tests conducted at the examination do not reflect any abnormality. In a January 2013 notice of disagreement, the Veteran reported that he had struck his elbow on a vice in the machine shop onboard a ship while on deployment and that he further tripped over a pipe and fell, striking his elbow and tearing his tendon. He reported that he no longer had cushion on his elbow. He stated that he had not seen a physician but planned to have his elbow examined. Pursuant to a January 2019 Board remand, a VA examination was conducted in November 2019. The examiner stated that this examination also revealed a normal elbow and was consistent with the prior 2012 VA examination. A review of the VA treatment records indicates that the Veteran did not complain or seek treatment for his left elbow. Of note, however, is the private treatment records, where enthesopathy and lateral epicondylitis of the left elbow is listed as "active problem." Although these treatment records concern his right knee and do not involve his left elbow, they do indicate that the Veteran has been seen for a left elbow condition. The Board notes that pursuant to the January 2019 remand, the AOJ requested the Veteran to submit any treatment records for his elbow disability or complete and return release authorization of such private treatment records in an August 2019 letter. However, to this date, VA has not received any response to this request. Therefore, upon remand, the AOJ must attempt to obtain pertinent private treatment records with proper authorization. And if the records obtained show a current treatment for the left elbow, a new VA examination must be scheduled and an etiology opinion must be obtained. 2. Evaluation in excess of 10 percent for bilateral pinguecula A remand is required in order to ascertain if the Veteran has a visual field defect due to his service-connected bilateral pinguecula. The Veteran is in receipt of 10 percent evaluation based on visual field defect. As noted in the January 2019 Board remand, however, a visual field test was not performed at a November 2015 VA examination. Per the January 2019 remand, the Veteran underwent another VA examination in November 2019. A visual field test was not conducted this time also though it was specifically requested by the Board in the remand. The Board notes that all the June 2012, November 2015, and November 2019 examiners are in agreement that the Veteran does not have visual field defect due to pinguecula and that this is the reason why a visual field test was not conducted in 2015 and 2019. Nonetheless, the Board finds that a remand is required because a visual field test was not conducted as directed in the January 2019 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in the January 2013 notice of disagreement, the Veteran stated that he had disfigurement in both eyes. He continued that while his condition did not yet obstruct or impair his vision, he had yellow bubbled areas on the inward port of each of his eyes. He requested an evaluation for the eye condition "adherent to underlying tissue" under Diagnostic Code 7800. Upon remand, the AOJ must schedule a VA examination for bilateral pinguecula. At the examination, a new visual field testing must be conducted. The examiner must also review the result of the visual field testing conducted in June 2012. If the examiner finds that the Veteran does not have visual field defect due to his pinguecula, the examiner must provide sufficient rationale. Moreover, the examiner must examine the Veteran's pinguecula for his claim for scarring and disfigurement. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for "Fox Valley Orthopaedic Institute" in Illinois or any other private clinics at which he sought treatment for his left elbow. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. If the private treatment records obtained in the step 1 reflect a treatment, complaint, or diagnosis of a left elbow disability, schedule the Veteran for a VA examination for left elbow. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner must opine whether the Veteran's left elbow disability or functional impairment thereof, if any, is at least as likely as not related to service, to include the in-service diagnosis of tendonitis of left elbow or the reported in-service elbow injury. Provide a rationale to support the opinion(s). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his serve-connected bilateral pinguecula. The examiner must review the claims file in its entirety, to include the June 2012 visual field testing results and All pertinent symptomatology and findings of the Veteran's bilateral pinguecula must be reported in detail. The eye examiner should give consideration to all applicable rating criteria (including the versions of the eye rating criteria effective prior to and since May 13, 2018). Visual field testing must be conducted, with the results available for review in the claims file. If the examiner finds that the Veteran's pinguecula does not result in any visual field defect, the examiner must provide a sufficient rationale for the finding and explain how the result of 2012 is reconciled with the new finding. Additionally, the examiner must provide a description of the extent of disfigurement or scar caused by the Veteran's pinguecula and opine whether the pinguecula has resulted in (a) any of the 8 characteristics of disfigurement under Diagnostic Code 7800; or (b) any visible or palpable tissue loss, gross distortion, or asymmetry of paired set of eyes, including eyelids, also under Diagnostic Code 7800. Provide a rationale to support the opinion(s). 4. After the development requested has been completed, the examination report(s) should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, corrective procedures should be implemented. 5. Readjudicate the claims. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.