Citation Nr: 21028784 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-11 574 DATE: May 12, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for right elbow flexion contracture is remanded. Entitlement to a disability rating in excess of 10 percent prior to October 10, 2017, and in excess of 30 percent thereafter, for limitation of pronation and supination for right elbow flexion contracture is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1957 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision which reduced the rating for the Veteran's service-connected right elbow flexion contracture from 30 percent to 10 percent, effective March 1, 2011. In a December 2015 Board decision, the Board found that the RO had adjudicated the Veteran's notice of disagreement with the rating reduction as one for an increased rating, resulting in the issues currently before the Board. In November 2010, the Veteran and C.W. testified at a RO hearing. In May 2014, the Veteran, A.R., and V.S. testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of each transcript is associated with the claims file. In an October 2018 decision, the Board, in pertinent part, denied entitlement to a disability rating in excess of 30 percent for right elbow flexion contracture, and granted a separate rating of 10 percent, but no higher, prior to October 10, 2017, and 30 percent thereafter, but no higher, for limitation of pronation and supination for right elbow flexion contracture. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a September 2019 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's decision as it pertained to the increased rating claims for the Veteran's right elbow disability, and remanded the matter back to the Board for adjudication consistent with the JMPR. In April 2020, the Board remanded the matters for a new VA examination and a retrospective medical opinion as to the severity of the Veteran's disability during prior examinations. 1. Entitlement to a disability rating in excess of 30 percent for right elbow flexion contracture is remanded. 2. Entitlement to a disability rating in excess of 10 percent prior to October 10, 2017, and in excess of 30 percent thereafter, for limitation of pronation and supination for right elbow flexion contracture is remanded. The Board cannot make a fully-informed decision on the increased rating claims at this time. Specifically, in April 2020, the Board remanded the claims to obtain VA examination and a retrospective medical opinion addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations, which were inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran was afforded a VA examination in January 2021. While the examiner was able to state that the Veteran had increased pain with lifting objects, increased weakness, and limitation of motion, the examiner was unable to provide a retrospective medical opinion because the system utilized to review the claims file "continued to lag, lock-up, and kick the reviewer out." The examiner recommended that the RO have the records indexed and resent for further review. In a second January 2021 opinion, the examiner reiterated that the Veteran had increased pain with lifting objects, increased weakness, and limitation of motion, and recent range of motion results were documented in the January 2021 VA examination report. Upon review of the record, it is not clear that the examiner was ever able to review the Veteran's medical records and neither of the January 2021 opinions provided a retrospective opinion on the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations, as directed by the Board's April 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). As such, the Board finds that a remand is warranted to obtain a retrospective medical opinion addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from October 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician as to the Veteran's service-connected right elbow disability. An in-person examination is not necessary unless deemed so by the examiner. The entire claims file should be made available to the examiner in such a manner that the examiner is able to access and review the medical records, to include in an indexed format, if necessary. The examiner must provide a retrospective medical opinion addressing the severity of the Veteran's right elbow disability during the July 2010, October 2017, and February 2018 VA examinations. As the examiner must provide a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, to the extent possible, the examiner should still provide an opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his July 2010, October 2017, and February 2018 VA examinations, and his pertinent lay statements, including during the May 2014 Board hearing. To the examiner's best ability, the additional range of motion lost should be described in degrees based on that information. 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). 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.