Citation Nr: 21076946 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 06-25 072A DATE: December 28, 2021 ORDER Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114 (s), effective October 6, 2021, is granted. REMANDED Entitlement to an increased rating for left elbow degenerative arthritis, evaluated as 10 percent disabling prior to February 24, 2007, and as 20 percent disabling thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of extension of the left elbow is remanded. Entitlement to an initial compensable rating for limitation of flexion of the left elbow is remanded. Entitlement to an initial compensable rating for left elbow surgical scar is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disabilities prior to October 6, 2021 is remanded. Entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) prior to October 6, 2021 is remanded. FINDING OF FACT Since October 6, 2021, the Veteran has had a single service-connected disability rated as 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different bodily systems. CONCLUSION OF LAW Effective October 6, 2021, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to April 1987. In January 2009, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing at the local Regional Office; a transcript of the hearing has been associated with the claims file. He was afforded another hearing in December 2012 before the undersigned VLJ because the VLJ who presided over the January 2009 hearing was no longer employed by the Board. A transcript of the December 2012 Board videoconference hearing has also been associated with the claims file. This matter has a long procedural history as outlined in prior Board decisions. Most recently, in June 2021, the Board again remanded this matter for further development. Unfortunately, as discussed below, the Board finds that another remand is necessary as the Veteran has still not been provided an adequate VA examination as previously directed by the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, in an October 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for limitation of extension of the left elbow, evaluated as 10 percent disabling, effective October 6, 2021; limitation of flexion of the left elbow, evaluated as noncompensable, effective October 6, 2021; and left elbow surgical scar, evaluated as noncompensable, effective July 27, 2006. As these disabilities are considered symptoms of the Veteran's service-connected left elbow degenerative arthritis, these issues are considered part and parcel of the original increased rating issue on appeal. In turn, the Board finds that these issues should also be viewed as being in appellate status. The Board notes that the Veteran has been awarded a maximum 100 percent disability rating for his service-connected major depressive disorder from December 5, 2016. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114 (s). Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. As discussed below, the Veteran herein has been granted an award of SMC from October 6, 2021 based on a total scheduler rating for major depressive disorder and his additional service-connected disabilities independently rated at 60 percent from that date. As the Veteran has been awarded SMC from October 6, 2021 and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114 (s), the facts of Bradley are sufficiently differentiable from the facts of this case. Therefore, any TDIU claim from October 6, 2021 is rendered moot. However, the Board must still determine whether a TDIU is warranted prior to October 6, 2021. Further, entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, this issue has been added for appellate consideration. Entitlement to SMC at the housebound rate SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated at 100 percent and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). As noted above, the Veteran has been awarded a maximum 100 percent disability rating for major depressive disorder from December 5, 2016. Service-connection is also in effect for left ulnar neuritis, evaluated as 30 percent disabling from December 1, 2007; left elbow degenerative arthritis, evaluated as 10 percent disabling prior to February 24, 2007, and 20 percent disabling thereafter; degenerative arthritis of the left wrist, evaluated as 10 percent disabling from May 6, 2004; and limitation of extension of the left elbow, evaluated as 10 percent disabling from October 6, 2021. He is also service-connected for limitation of flexion of the left elbow and left elbow surgical scar, both evaluated as noncompensable. Thus, for the period since October 6, 2021, the Veteran has had a service-connected disability rated as total (major depressive disorder) and additional anatomically distinct service-connected disabilities (left ulnar neuritis, left elbow degenerative arthritis, left wrist degenerative arthritis and limitation of extension of the left elbow), which are independently ratable at 60 percent. Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted, effective October 6, 2021. REASONS FOR REMAND Entitlement to an increased rating for left elbow degenerative arthritis, evaluated as 10 percent disabling prior to February 24, 2007, and as 20 percent disabling thereafter; an initial rating in excess of 10 percent for limitation of extension of the left elbow; and an initial compensable rating for limitation of flexion of the left elbow are remanded. The Board has previously remanded this case in July 2017, October 2020 and most recently in June 2021 in order to afford the Veteran an adequate examination under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, in Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Unfortunately, the most recent October 2021 VA examiner again did not provide an estimate of motion loss in terms of degrees during flare-ups or after repeated used over time as directed by the Board. Rather, the examiner stated that after examination of the Veteran, review of medical records, history, and current subjective complaints, combined with objective clinical evidence, the examiner had no basis to offer additional losses of function or motion when it comes to repetitive use and/or during a flare-up. It is unclear whether the examiner is saying there is not additional loss or if he lacks the medical knowledge to estimate such loss. Importantly, as noted in prior remands, the Veteran has reported that he cannot use his arm during flare-ups; his fiancée has to help him at the bathroom; and he cannot drive a couple times a week. The flare-up can last hours to 1-2 days and impacts his ability to grip, grasp, extend, lift and to supinate or pronate. Given that the examiner did not provide an estimate of additional loss of motion during flare-ups or repeated use over time, this examination again is inadequate under Sharp. Moreover, while noting that the Veteran experienced painful motion in supination and pronation, the examiner did not indicate whether the Veteran's symptoms, especially during flare-ups or repeated use over time more nearly approximates the hand fixed in supination or hyperpronation, the criteria for a higher rating. Thus, an addendum opinion is necessary. Entitlement to an initial compensable rating left elbow surgical scar is remanded. As noted above, on remand, the Veteran was awarded service connection for left elbow surgical scar. While the October 2021 VA examiner gave the measurements of the scar, there was no further description of the scar, including whether it is painful or unstable. As such, the Board finds that the Veteran should be afforded a VA scar examination to determine the severity of his left elbow surgical scar. Entitlement to a TDIU prior to October 6, 2021 and entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) prior to October 6, 2021 are remanded. These issues are inextricably intertwined with the remaining increased rating issues on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, on remand, the examiner was directed to opine as to the occupational impairment caused by the left elbow disability as well as his service-connected disabilities of degenerative arthritis of the left wrist and left ulnar neuritis in terms of functional limitations. However, the October 2021 examiner did not offer any such opinion, but rather just indicated that per the Veteran, his left elbow limited mobility mainly due to pain in the entire left arm. Thus, in order to comply with the Board's prior remand, the examiner must offer an opinion concerning the Veteran's occupational impairment in terms of functional limitations. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Obtain an addendum opinion from appropriate medical professional to determine the current nature and severity of his service-connected left elbow degenerative arthritis, left elbow limitation of extension, and left elbow limitation of flexion. The need for another examination is left to the discretion of the examiner. After reviewing the complete record, the examiner must respond to the following: (a.) Describe the Veteran's report of flare-ups at the March 2005, February 2007, August 2010, February 2015, August 2017, and current VA examinations. In doing so, for each report, the examiner should: 1. Identify whether there is any functional loss or limitation of motion based on his report. 2. If there is any functional loss based on his report, discuss its impact and severity. If there is no functional loss, explain why. 3. If there is any limitation of motion based on his report, provide an estimate, in degrees, of the additional limitation of motion due to flare-ups or repeated used over time. If unable to provide an estimate or if there is no limitation of motion, explain why. 4. Determine whether the functional impairment caused by the Veteran's left elbow degenerative arthritis more nearly approximates the hand fixed in supination or hyperpronation. 5. If his report of flare-ups more appropriately describes a baseline of the severity of his left elbow disability, indicate the same and explain why. 6. Provide an estimate, if at all possible, of the additional impairment due to flare-ups or repeated use over time 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). 7. The Board notes that the Veteran is competent to report his own lay observable symptoms as he experienced them, to include physically demonstrating the extent of his claimed limitation of motion during past flare-ups. In providing the requested opinions, consider the Veteran's description of his symptoms. If there is any medical reason to accept or reject the Veteran's description of his symptoms, this should be noted. Stated another way, do the Veteran's reports about his symptoms presented align with how the currently diagnosed disability is known to manifest or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b.) To the extent possible, distinguish between the limitation of motion and/or functional loss attributable to his left elbow disability from any conditions related to his cervical spine, neck, and/or left shoulder documented in the claims file. (c.) Opine as to the occupational impairment caused by the left elbow disability as well as his service-connected disabilities of degenerative arthritis of the left wrist and left ulnar neuritis in terms of functional limitation(s). (d.) For any opinion rendered, provide a complete rationale. 3. Schedule the Veteran for an examination to determine the current severity of his left elbow surgical scar. The claims file must be reviewed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner should determine whether the scar is painful, unstable or causes any functional impairment. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.