Citation Nr: 21023328 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-23 361 DATE: April 20, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected right elbow chronic strain status post ulnar fracture is remanded. Entitlement to service connection for a cervical spine disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to February 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2008 and March 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, January 2015, and July 2018, the Board remanded this appeal for further evidentiary development. Following development conducted in response to the July 2018 Board remand, the RO a rating decision in July 2020 in which the RO awarded a 10 percent rating for the right elbow chronic strain status post ulnar fracture (previously rated as fracture, right ulna), effective August 18, 2009; granted service connection for residuals of right ulnar fracture affecting supination and/or pronation and assigned a 10 percent rating, effective August 18, 2009, for this disability; granted service connection for a surgical scar on the right mid-ulna and assigned a noncompensable rating, effective August 18, 2009; and granted service connection for right ulnar neuropathy and assigned a 10 percent rating, effective February 27, 2018. 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. Entitlement to a rating in excess of 10 percent for the service-connected right elbow chronic strain status post ulnar fracture In July 2018, the Board remanded this matter for a new VA examination to ascertain the current severity of the Veteran’s service-connected right elbow chronic strain status post ulnar fracture, previously rated as right ulna fracture residuals. He was accorded the requested VA examination in April 2019. Unfortunately, the Board finds this examination to be inadequate, as there has not be substantial compliance with the July 2018 Board remand directives. Stegall, 11 Vet. App. at 271. While examinations were undertaken to assess the Veteran’s additional symptoms, the Board finds that the examiner failed to respond to the Board’s request for information about this disability. Specifically, the examiner did not provide a response to the Board’s request regarding whether the Veteran has arthritis associated with his service-connected right elbow chronic strain status post ulnar fracture. The examiner indicated that imaging studies and X-rays were not done or not available and explained that these studies “were not indicated,” despite the Board’s clear request. The examiner also failed to explain or provide reasoning as to why the requested testing could not be conducted or was not appropriate. In any event, as the examination did not include requested information relating to arthritis and did not include the requested tests and studies, a remand is necessary to obtain an adequate VA examination that properly addresses the current severity of the Veteran’s service-connected right elbow chronic strain status post ulnar fracture. Entitlement to service connection for a cervical spine disability, to include degenerative joint disease Entitlement to service connection for a left shoulder disability Entitlement to service connection for a right shoulder disability Entitlement to service connection for a right hand disability Also, in the July 2018 remand, the Board found that the Veteran’s claims for service connection for a cervical spine disability, to include degenerative joint disease; a left shoulder disability; a right shoulder disability; and a right hand disability were tied to a not-yet-filed claim for service connection for fibromyalgia. The Board found that the Veteran’s claim for fibromyalgia needed to be filed and adjudicated before further consideration could occur regarding his other service connection claims. The Veteran’s attorney has since clarified that the Veteran’s claims for service connection for a cervical spine disability, to include degenerative joint disease; a left shoulder disability; a right shoulder disability; and a right hand disability should have been interpreted as a claim for fibromyalgia manifested by pain and disabilities in his neck, shoulders, and hand. See September 2020 Correspondence. In other words, the Veteran’s representative has argued that the Veteran’s claim for these disabilities should have been interpreted broadly to include fibromyalgia. See Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000). At an April 2019 VA examination, the examiner acknowledged the Veteran’s reports of left shoulder pain, neck pain, and a prior breaking of his right hand, but indicated that the Veteran did not have any right shoulder or right hand pain at the time of the examination. The examiner explained that the Veteran did not have a diagnosis of fibromyalgia and that no diagnostic tests or imaging studies were performed. The examiner opined that, despite a diagnosis of fibromyalgia provided in a private medical opinion dated August 2016, the Veteran’s current records and the then-current examination conducted did not confirm a diagnosis of fibromyalgia. The examiner indicated that the objective findings during the examination were not clearly indicative of a fibromyalgia and gave little to no consideration to the August 2016 private opinion and a March 2010 VA treatment note suggesting that the Veteran’s symptoms may be indicative of fibromyalgia. Instead, the examiner indicated that the Veteran’s separate diagnoses of cervical degenerative joint disease, left shoulder degenerative joint disease with bursitis, right shoulder rotator cuff tear, and right hand degenerative arthritis are likely conditions that explain his widespread musculoskeletal pain. Unfortunately, the Board finds that the April 2019 VA examination is inadequate, as it failed to provide adequate rationale explaining why the Veteran’s disabilities cannot or should not be characterized as fibromyalgia. It is unclear, between the August 2016 private opinion and the April 2019 VA examination, whether the Veteran’s disabilities fall under one disability, i.e. fibromyalgia, or if the disabilities are manifested as their own individual disabilities with unique etiologies. In this regard, the Board notes that VA examinations with etiological opinions were provided for the Veteran’s neck, left shoulder, and right shoulder disabilities in March 2010 and for the right hand in December 2013. The March 2010 examinations indicate that the Veteran has separate disabilities, not related to fibromyalgia, but the examiners provided negative etiology opinions and failed to provide adequate rationale explaining why the Veteran’s documented in-service complaints of bilateral shoulder pain and neck pain. See, e.g., January 1977, October 1978, and January 1979 Service Treatment Records. The December 2013 right hand examination, despite noting degenerative changes in the right hand, did not indicate a disability of the right hand other than his already service-connected right hand 5th digit disability. Accordingly, the Board finds that a remand is necessary to clarify the nature of the Veteran’s cervical spine, right shoulder, left shoulder, and right hand disabilities and to address adequately the etiology of these disabilities. On remand, an examiner is asked to address specifically whether the Veteran’s disabilities can be characterized as part of a fibromyalgia or other systemic disability, or whether they are best characterized as individual disabilities with their own unique etiologies. Entitlement to a TDIU As the remand of the claims for an increased rating for service-connected right elbow chronic strain status post ulnar fracture and for service connection for a cervical spine disability, to include degenerative joint disease; a left shoulder disability; a right shoulder disability; and a right hand disability could affect the claim for a TDIU, the Board finds that these issues are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Also, the July 2018 Board remand directed the RO to obtain copies of the Veteran’s Office of Personnel Management (OPM) records, to include particularly disability retirement records and any associated decisions and medical records. The Board asked, if these records were unavailable or do not exist, that a certification be obtained from OPM stating such—and that the Veteran be notified. The record reflects that records were requested from OPM in December 2018. To date, however, no response from OPM is contained in the claims file, and it does not appear that these records have been determined to be unavailable or that the Veteran has been notified of any unavailability of these records. Thus, an additional attempt should be made to obtain any outstanding OPM records, and, if these records cannot be obtained, the Veteran should be duly notified. Accordingly, these matters are REMANDED for the following action: 1. Obtain copies of the Veteran’s OPM disability retirement records, to include any decisions and any medical records utilized in making such a decision. If these records are unavailable or do not exist, obtain certification from OPM stating such is the case. The Veteran should be notified and provided an opportunity to provide any such records he may have. All efforts and responses should be documented and placed in the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right elbow chronic strain status post ulnar fracture. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings should be reported in detail. The examiner is then direct to: a. discuss the presence, or absence, of arthritis in the Veteran’s right elbow and arm & b. address how the Veteran’s right elbow chronic strain status post ulnar fracture residuals impacts his functioning and ability to obtain or maintain substantially gainful employment. A clear explanation for all opinions would be helpful, 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. 3. Also, schedule the Veteran for the appropriate examination to determine the nature and etiology of any cervical spine, right shoulder, left shoulder, and right hand disability that the Veteran may have. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. Indeed, all relevant pathology for these disabilities shown on examination should be annotated in the examination report(s). Following a review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: (a.) Identify/diagnose any cervical spine, right shoulder, left shoulder, and right hand disability that presently exists or that has existed during the appeal period. (b.) For each such diagnosed disability, indicate whether these disabilities are separate and distinct disabilities from the Veteran’s privately diagnosed fibromyalgia or whether such diagnosed orthopedic disabilities are considered manifestations of fibromyalgia, for which the Veteran is not presently service-connected. (c.) Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that the Veteran’s diagnosed cervical spine, right shoulder, left shoulder, and right hand disabilities (whether related to a finding of fibromyalgia or to separate and distinct disabilities) onset in, or are otherwise etiologically related to, his service. In expressing these opinions, the examiner is asked to consider and address the Veteran’s reports that he injured his neck, both shoulders, and right hand during service. See January 1977, October 1978, and January 1979 Service Treatment Records. The examiner is advised that the Veteran is competent to report that he has had neck, bilateral shoulder, and right hand pain (and related symptoms) since active service and that he hurt his neck, bilateral shoulders, and right hand in service. 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.