Citation Nr: 21074777 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 10-29 786 DATE: December 16, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent prior to October 17, 2016, in excess of 30 percent prior to July 1, 2021, and in excess of 40 percent thereafter, for right elbow limitation of flexion due to traumatic arthritis with loose body of right elbow is remanded. Entitlement to a disability rating in excess of 10 percent prior to June 4, 2019, and in excess of 30 percent from June 4, 2019, and thereafter, for right elbow limitation of extension, is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from July 1976 to July 1979. The Veteran served during Peacetime. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in March 2015, August 2016, August 2017, February 2019, and, most recently, in December 2020. In March 2015 and August 2016, the case was remanded to obtain a VA examination to determine the nature and severity of his right elbow disability. In August 2017, the claims for an increased disability rating for the right elbow and the right knee were denied. The Veteran timely appealed the decision to the Court of Appeals for Veterans Claims (Court). In July 2018, the Veteran's representative and an attorney from VA's Office of General Counsel, entered into a Joint Motion for Partial Remand (JMPR), agreeing to vacate and remand only the decision concerning the Veteran's right elbow disability rating; the Court ordered the August 2017 Board decision vacated and remanded to the Board, in accordance with the JMPR. In February 2019, the Board, again, remanded the claim to obtain a new VA examination to determine the nature and severity of the Veteran's right elbow, in compliance with all appropriate law and regulations. The Veteran underwent a VA examination in June 2019. The Board again remanded the case in December 2020 due the June 2019 VA examiner's failure to include pertinent information, as discussed below. A medical opinion was requested. Subsequently, another VA examination was conducted in July 2021. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Regional Office (RO) does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Here, the RO did not substantially comply with the December 2020 remand as it failed to provide the medical opinion requested by the Board. Unfortunately, another remand is required. 1. Entitlement to a disability rating in excess of 20 percent prior to October 17, 2016, in excess of 30 percent prior to July 1, 2021, and in excess of 40 percent thereafter, for right elbow limitation of flexion due to traumatic arthritis with loose body of right elbow is remanded. 2. Entitlement to a disability rating in excess of 10 percent prior to June 4, 2019, and in excess of 30 percent from June 4, 2019, and thereafter, for right elbow limitation of extension, is remanded. The Veteran underwent a VA examination of his right elbow condition in June 2019. The examiner opined the Veteran's right elbow disability was so severe that the Veteran would be equally well served with an amputation of the extremity with a prosthesis. However, the examiner did not provide an opinion as to the appropriate level of amputation. Therefore, the Board remanded the case in December 2020, requesting an addendum opinion from the provider who conducted the June 2019 examination. Specifically, the Board requested an opinion as to what level of amputation that the Veteran would best be served by above the insertion of the pronator teres or below the insertion of the pronator teres. This is a question that the June 2019 examiner had not specified in the examination report, and which the Board cannot answer itself absent medical evidence. The Board also provided the following instruction: If the Veteran's right elbow function demonstrated significant periods of improvement or regression, the examiner should specifically state whether the Veteran's symptomatology rendered the Veteran equally well served by an amputation throughout the period on appeal, or whether there was a clear date this this function worsened to the point of being equally well served by an amputation with prosthesis. If there was a clear date of such change in function, this date should be specifically stated and supported by the evidence of record. The Board then stated that if the examiner was unable to provide the requested opinion without resorting to speculation, the examiner "must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training." The Board also noted that if there was an evidentiary reason to doubt the veracity of the Veteran's statements of symptomatology, this should be specifically addressed. The evidence reflects that the RO requested the addendum opinion, but the June 2019 examiner was no longer working with the VA. A new VA examination was ordered and conducted in July 2021. This examination showed improvement in the Veteran's elbow condition, and the examiner indicated the Veteran would not be equally well served by an amputation with a prosthesis. The RO requested the examiner who completed the July 2021 examination to provide an addendum opinion responsive to the Board's remand directives regarding level of amputation and/or periods of improvement or regression (in light of the June 2019 examination). In a September 2021 addendum opinion, the July 2021 examiner merely responded that the Veteran would not be equally well served by amputation of the extremity with a prosthesis. The examiner did not address the June 2019 opinion and the Veteran's condition at that time or what level of amputation was appropriate (nor indicate any disagreement with that examiner's conclusion), did not discuss whether the Veteran had had periods of improvement or regression, nor whether there were any periods where the Veteran's symptomatology would have rendered him equally well served by an amputation with a prosthesis. The addendum opinion does not substantially comply with the Board's December 2020 remand as it does not address the June 2019 examination, the appropriate level of amputation (if any), nor periods of improvement or regression. It did not discuss the discrepancies in the examinations at all. Further, without a medical opinion responsive to these questions, the Board would be left to draw its own medical conclusions and substitute its judgment for that of a medical professional, which it is forbidden from doing. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the RO awarded an increased rating of 40 percent for the Veteran's right elbow limitation of flexion based on the results of the July 2021 examination, this constitutes a partial grant of the issue on appeal, since the Veteran has not been awarded the highest possible evaluation under the schedular criteria for the duration of the period on appeal. As the Veteran is presumed to be seeking the maximum possible evaluation and has not indicated his satisfaction with the increased award or its effective date, the issue of increased ratings for the right elbow condition remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, a thorough analysis of the Veteran's right elbow condition throughout the period on appealnot only at the time of the July 2021 examinationis essential for proper adjudication of the claim. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician that is responsive to the inquiries of the December 2020 remand, namely, what level of amputation the Veteran would have been best served by at the time of the June 2019 examination (if the clinician agrees with the conclusion of that examiner), and addressing any periods of improvement or regression of the Veteran's condition where he may no longer have been equally well served by amputation with a prosthesis. The clinician must first be provided with the Veteran's entire claims file, including a copy of this remand and the December 2020 remand. (a.) The clinician must review the June 2019 VA examination and the July 2021 VA examination of the Veteran's elbow condition. The examiner must provide a medical opinion, based on the examinations and any other relevant evidence, which opines as to the level of amputation that the Veteran would have best been served by at the time of the June 2019 examinationabove the insertion of the pronator teres or below the insertion of the pronator teres. If the clinician disagrees with the June 2019 examiner's conclusion that the Veteran would have been equally well served by amputation, the clinician should so state. The opinion must be supported by, and specifically address, the evidence of record. (b.) If the clinician concludes that the Veteran's right elbow function has demonstrated significant periods of improvement or regression (i.e., considering that the July 2021 examination appears to demonstrate improvement), the clinician should specifically state whether there was a clear date that the elbow function worsened to the point of being equally well served by an amputation with prosthesis, and if there was a clear date that the function improved such that the Veteran would no longer be equally well served by amputation with prosthesis. If there were clear dates of such change in function, they should be specifically stated and supported by the evidence. If there were no clear dates, or if the dates are only estimable, the clinician should so state and provide estimate if applicable. (c.) If the clinician believes that the requested opinions cannot be rendered without resorting to speculation, he or she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Given that the requested opinion is retrospective, i.e., backward-looking, the Board notes that an additional in-person examination of the Veteran is not required. However, the need for an additional examination is left to the RO's discretion. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.