Citation Nr: 21028463 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-17 122 DATE: May 11, 2021 REMANDED Entitlement to an initial compensable disability rating for left elbow epicondylitis, medial and lateral, is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on a period of active duty for training from August 1991 to November 1991, and he had active duty service from August 2004 to January 2006 and from August 2008 to October 2009, including service in Southwest Asia. His awards and decorations include the Combat Action Badge. He had additional service in the Army National Guard. This current appeal before the Board arose from a May 2010 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for left elbow epicondylitis, medial and lateral, assigning a noncompensable disability rating, effective October 28, 2009; and continued a noncompensable rating for service-connected bilateral hearing loss. The Veteran previously requested a hearing before the Board on the claims on appeal; however, he withdrew his hearing request in November 2017. In February 2018, the Board remanded the claims on appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Afterward, in a November 2020 rating decision, the AOJ granted service connection for left elbow epicondylitis with painful supination and pronation, thereby assigning a separate 10 percent rating for the disability, apart from the service-connected epicondylitis, medial and lateral. Notably, however, the Veteran did not appeal the assigned separate rating; therefore, that issue is not currently before the Board. Also, in the November 2020 rating decision, the AOJ granted service connection for right median nerve injury, forearm level, and for erectile dysfunction, which were also issues remanded by the Board in February 2018. Thus, the Veteran's appeal as to those matters was granted in full. As a final preliminary matter, the Board notes that the Veteran has a separate appeal pending for entitlement to service connection for restrictive lung disease, which was remanded by the Board in April 2019, and is undergoing further development by the AOJ. Moreover, the Veteran is represented in that matter by a private attorney, who limited his representation to matters apart from those that are the subject of the current appeal. Thus, while that matter is not currently before the Board, it may well be the subject of a future Board decision. Higher initial rating for left elbow epicondylitis, medial and lateral Pursuant to the Board's February 2018 remand, the Veteran was afforded a new VA-contracted examination in September 2020 to assess the severity of his service-connected left elbow epicondylitis. Notably, however, the examination findings do not fully comply with the holding of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the Court in Correia held that the final sentence of 38C.F.R. §4.59 requires that an examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." Here, in the September 2020 examination report, the examiner noted that there was evidence of pain in weight-bearing, and briefly added that there was objective evidence of pain on passive ROM testing and in non-weight bearing testing of the left elbow joint. The examiner did not report at what degree this pain was indicated or whether such pain amounted to an additional loss in the ranges of motion of the Veteran's left elbow. Nor did the examiner provide clear findings with respect to the presence of pain on active motion. Thus, the examiner's findings amount to only a cursory evaluation of the Correia criteria. Accordingly, due to the deficiencies in the September 2020 VA-contracted examination report, remand is necessary to afford the Veteran a new VA examination to adequately assess the severity of his left elbow epicondylitis. Higher rating for bilateral hearing loss With respect to the Veteran's claim for a higher rating for bilateral hearing loss, review of his VA treatment records reveals that, during the pendency of his appeal, he was seen for VA audiological evaluations where audiometric testing was conducted. An October 2009 entry indicates that the audiology evaluation was scanned and available via "Vista Imaging." Also, a January 2017 VA audiology report notes that the Veteran exhibited hearing loss at certain audiological frequencies; thus, clearly indicating that audiometric testing was conducting during the evaluation. The complete report from the October 2009 evaluation and the audiometric testing results from the January 2017 VA evaluation, however, have not been associated with the claims file. As the foregoing VA audiological evaluation records, to include audiometric testing conducted during these evaluations, are essential for the Board to properly rate the Veteran's hearing loss during the course of the appeal period, remand is required for the AOJ to obtain and associate the respective reports with the claims file. See 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain the complete report from the Veteran's October 2009 VA audiological evaluation, to include specifically audiological/audiometric testing results. Also, obtain the results of audiological/audiometric testing performed during the January 2017 VA audiological evaluation. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the file. 2. Also, schedule the Veteran for a new VA examination to determine adequately the current severity of his service-connected left elbow epicondylitis, medial and lateral. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the pertinent criteria. The examiner should specifically test the ranges of motion and pain in the Veteran's left elbow in active and passive motion, and in weight-bearing and non-weight bearing (with all range of motion testing results expressed in degrees). The same range of motion testing should also be accomplished for the Veteran's right elbow (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of reported flare-ups of left elbow disability, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to the above factors must also be noted. The examiner must offer opinions as to whether there would be additional limits on functional ability during reported left elbow flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. A clear explanation for all opinions expressed 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 a requested opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.