Citation Nr: 21029045 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-89 885A DATE: May 12, 2021 REMANDED Entitlement to an increased disability rating in excess of 10 percent for residuals of a gunshot wound of the left elbow is remanded. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 23, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and March 2020 rating decisions. In July 2015, in pertinent part, the agency of original jurisdiction (AOJ) continued the evaluation of 10 percent disabling for the Veteran's service-connected residuals of a gunshot wound of the left elbow and granted service connection for PTSD, evaluated as 30 percent disabling, effective February 23, 2015. After perfecting his appeal of the assigned evaluations of his disabilities, in March 2020, the AOJ evaluated the Veteran's PTSD as 70 percent disabling and granted entitlement to TDIU, each effective February 23, 2015. The Board notes that was the date on which the Veteran met the schedular criteria for TDIU. In its May 2020 remand, the Board took jurisdiction over the issue of entitlement to an effective date earlier than February 13, 2015, for the award of TDIU, finding that it was part and parcel of the Veteran's claim for entitlement to an increased disability rating for his service-connected left elbow disability, which was filed on February 13, 2015. The Board remanded these issues for further development, and the case has been returned for appellate consideration. 1. Left Elbow Disability 2. PTSD The Veteran has appealed the disability ratings assigned for his left elbow disability and PTSD. The Board notes that the last examinations for his disabilities were in June 2015. See C&P Exam (Elbow & Forearm), received 6/9/2015; C&P Exam (PTSD), received 6/10/2015. During a January 2021 hearing before a decision review officer, the Veteran stated that he had pain and that his elbow was "shot." He reported that his left elbow ached and that it lacked strength such that he recently had dropped a cup of coffee. He estimated that he could lift only five pounds now and, with repetitive use, his left elbow would give out. He reported that he could not fully straighten his left arm. He reported that, in certain positions, his fingers started tingling as if they are asleep. As to his PTSD, the Veteran reported that he did not want to leave his house and he did not want to be near people. He reported that so long as he was in his house, he was fine but as soon as he left his house, he became very anxious. See Hearing Transcript, received 1/19/2021. When a veteran alleges that a service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, the examination of the left elbow pre-dated the guidance for musculoskeletal examinations provided in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Consequently, as currently developed, the evidence of record does not provide the Board with a thorough and contemporaneous evaluation of these service-connected disabilities. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (stating that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); 38 C.F.R. § 3.326(a). Accordingly, on remand, the Veteran must be afforded new VA examinations to determine the nature and severity of his service-connected left elbow disability and PTSD taking into consideration his statements, the evidence of record, and accepted medical principles. 38 C.F.R. § 3.159(c)(4). Also, on remand, any pertinent ongoing VA and private treatment records should be associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. TDIU The Board also finds that any decision with respect to the increased rating claims remanded herein may affect the Veteran's claim for TDIU. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of the Veteran's claim for TDIU must be deferred until the appropriate actions concerning the Veteran's increased rating claims are completed and the matter is either resolved or prepared for appellate review. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left elbow disability and PTSD. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an appropriate examination to assess the current severity of his service-connected left elbow disability. The claims file should be made available to and reviewed by the examining clinician and all necessary tests should be performed. All findings should be reported in detail. All studies, tests, and evaluations deemed necessary by the examining clinician should be performed, including range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the clinician is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examining clinician should describe any pain, weakened movement, excess fatigability, and incoordination present. The clinician should also state whether the examination is taking place during a period of flare-up. If not, the clinician should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examining clinician should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the clinician cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the clinician should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the development in item #1 is completed, the Veteran should be afforded a VA examination to determine the nature and severity of his service-connected PTSD. All studies, tests, and evaluations deemed necessary by the examining clinician should be performed. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examining clinician should provide a fully reasoned explanation. The examining clinician 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 for mental disorders, with particular attention to occupational and social impairment. The clinician must attempt to elicit information regarding severity, frequency, and duration of symptoms. 4. Readjudicate the claims. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leanne M. Innet, 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.