Citation Nr: 21075530 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 09-31 960 DATE: December 20, 2021 REMANDED Entitlement to a compensable evaluation, for the period prior to March 10, 2012, and an evaluation in excess of 30 percent thereafter, for limitation of extension of the right elbow is remanded. Entitlement to an evaluation in excess of 10 percent, for the period prior to September 30, 2005, and in excess of 20 percent thereafter, for limitation of flexion of the right elbow is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1961 to April 1964. The claim was most recently before the Board in January 2018 when it was remanded for additional development. The Veteran testified at a hearing before the undersigned in August 2021. A transcript of the hearing has been associated with the record. 1. Entitlement to a compensable evaluation, for the period prior to March 10, 2012, and an evaluation in excess of 30 percent thereafter, for limitation of extension of the right elbow is remanded. 2. Entitlement to an evaluation in excess of 10 percent, for the period prior to September 30, 2005, and in excess of 20 percent thereafter, for limitation of flexion of the right elbow is remanded. The claims must be remanded again to obtain outstanding treatment records and an adequate examination. In August 2021 the Veteran's representative submitted a July 2019 statement of a private provider, Dr. J.N., which referred to a June 2019 follow-up appointment during which the Veteran continued to have symptoms. The report of a November 2018 VA examination indicated that an October 2018 private treatment record was brought to the examination. The record does not include related treatment records dated after December 2016; thus, no copy of the October 2018 or June 2019 treatment records. Those records should be obtained on remand. The November 2018 VA examination is inadequate because it is incomplete and in contrast from private treatment records; which the VA examiner questioned. The VA examiner said they were unable to test range of motion of the elbow and that the October 2018 private evaluation range of motion was normal. The VA examiner found that the Veteran did not have nerve condition and that the Veteran osteoarthritis does not cause nerve damage or entrapment. However, the examiner reported that there was no documentation of any electromyography (EMG) study. The examiner concluded there was no related functional impact. In the July 2019 statement, the private provider said the Veteran had chronic medial and lateral epicondylitis which, once chronic, can cause irritation of the ulnar nerve and constant flexion of the elbow to relieve pain can cause chronic stretch of the nerve and subsequent symptoms. The Veteran reported that sometimes his right elbow is fixed at 90 degrees and he complained of locking or catching on movement. The private provider said that at the most recent follow-up, after injection, there was passive range of motion of 30 to 125 degrees. The provider urged the Veteran to obtain a nerve conduction study to better evaluate the status of his nerve. The examination on remand should identify all manifestations of the right elbow disability, including whether there is any neurological involvement. 3. Entitlement to a TDIU is remanded. The TDIU claim must be remanded as intertwined with the increased rating being remanded and for further development. On his March 2017 Veteran's Application for TDIU, the Veteran said he last worked full-time in September 2009 and became too disabled to work in January 2010. However, his employment listed ends in January 2005. His employment dates may be clarified on remand. The examination on remand must include an opinion as to any functional impact related to the elbow disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. J.N. at Suncoast Orthopedic Surgery and Sports Medicine. Make two requests for the complete authorized records from Dr. J.N. at Suncoast Orthopedic Surgery and Sports Medicine, including records of treatment in October 2018 and June 2019, unless it is clear after the first request that a second request would be futile. 2. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 3. After completion of the above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to identify all manifestations and the current severity of the right elbow disability. Copies of all pertinent records should be made available to the examiner for review. The appropriate DBQs should be filled out for this purpose, if possible. The examiner must specifically indicate whether there are any related neurological manifestations. If there are, the examiner must identify the specific nerves involved and the level of severity. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during repetitive use and flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.