Citation Nr: 21040306 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-30 031 DATE: July 3, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion is remanded. Entitlement to an initial compensable disability rating for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, prior to February 27, 2019, is remanded. Entitlement to a rating in excess of 10 percent for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1995 to August 1998, and from February 1999 to September 2007. These matters on appeal before the Board of Veterans' Appeals (Board) arise from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for a left elbow injury disorder but granted a noncompensable evaluation effective December 22, 2017. In a subsequent August 2019 rating decision, the RO increased the rating to 10 percent, effective February 27, 2019. Following an appeal of the rating, in a March 2020 decision, the Board denied the increased evaluation claims. Subsequently, the Veteran appealed the decision to the United States Court of Veterans Appeals (Court). In a February 2021 Joint Motion for Partial Remand (JMPR), the parties agreed the Board erred when it denied the claims as it relied on inadequate VA examinations conducted in January 2018 and February 2019. In a February 2021 Order, the Court granted the JMPR in which the parties agreed to vacate the Board's March 2020 decision as to the increased evaluation claims related to the left elbow injury only, and remand them for readjudication consistent with the JMPR. Notably, it was indicated that the Veteran no longer sought the Court to review the claim for irritable bowel syndrome. Thus, it was dismissed, is no longer in appellate status, and will not be addressed in this decision as the Board has no jurisdiction over the matter. The Veteran and his attorney were notified in a March 2021 correspondence that the appeal had been returned to the Board and that they had a period of 90 days to submit additional evidence or argument. The 90-day period has passed; thus, the Board will proceed with the adjudication of the appeal. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). 1. Entitlement to a disability rating in excess of 10 percent for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of flexion is remanded. 2. Entitlement to an initial compensable disability rating for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, prior to February 27, 2019, is remanded. 3. Entitlement to a rating in excess of 10 percent for a left elbow injury with tendonitis, involving the epicondyle, with posttraumatic heterotrophic ossification of the common extensor tendon and flexor tendon, limitation of supination and/or pronation, on or after February 27, 2019, is remanded. As noted above, before adjudication of the claims, remand is necessary for an adequate VA examination. In a January 2018 evaluation, the Veteran reported he was unable to extend his left arm completely and experienced numbness and pain. The examiner indicated the Veteran did not report having flare-ups. However, he did report functional loss or impairment as he was unable to reach behind his back. His left elbow range of motion was noted to be abnormal with flexion from 0 to 110 degrees and extension from 110 to 0 degrees. The examiner indicated there was no pain on exam and no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. However, in the notes, the examiner indicated the Veteran reported pain at 110 degrees flexion. Concerning repetitive use testing, the examiner indicated the Veteran was able to do such without additional loss of function or range of motion after three repetitions. The Veteran was not tested immediately after repetitive use over time and the examiner indicated it was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She further indicated she could not say without mere speculation whether there was pain, weakness, fatigability, or incoordination that significantly limits his functional ability with repeated use over a period of time. She stated there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner then indicated that functional loss did not cause pain, fatigue, weakness, lack of endurance, or incoordination and she could not determine an estimated loss of range of motion without resorting to mere speculation. Regarding flare-ups, the examiner found the same as it related to weakness, fatigability, or incoordination that significantly limits the Veteran's functional ability with flare-ups or functional loss. As noted in the JMPR, the January 2018 VA examination report is internally inconsistent and fails to describe the disability in sufficient detail so that the Board can accurately evaluate the disability. The examiner stated that the Veteran reported pain at 110 degrees flexion for the elbow but also checked the box indicating there was no pain on exam. Additionally, during the examination, the Veteran reported intense pain after daily usage. However, the examiner stated that she was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Notably, the examiner indicated the same as it relates to flare-ups. The statements are inadequate because the examiner was required to elicit information from the Veteran regarding functional loss manifestation after repetitive use, any flare-ups, or indicate whether such information could be gleaned from medical records or other sources. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). During a February 2019 VA examination, the Veteran reported experiencing sharp, shooting pain and numbness within the last 18 months. He indicated the pain radiated from his hands to his shoulders occasionally. He also reported that the pain was aggravated by reaching behind his back, laying his arm flat on a table, tying his shoes, and showering. The Veteran did not report flare-ups at the time. However, he did report having functional loss or impairment of his joint as he did not have full extension in his elbow. He also indicated that he could not do certain activities with his kids like swinging a bat or golf club or swimming. On examination, he was found to have abnormal range of motion in his left elbow with flexion from 105 to 110 degrees and extension from 110 to 105 degrees. The examiner noted he experienced pain at 80 degrees of supination and 110 degrees of flexion, but it did not result in or cause functional loss. Concerning repetitive use testing, the examiner indicated the Veteran was able to do such without additional loss of function or range of motion after three repetitions. The Veteran was not immediately tested after repetitive use over time and the examiner indicated it was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She further indicated she could not say without mere speculation whether there was pain, weakness, fatigability, or incoordination that significantly limits his functional ability with repeated use over a period of time. She stated there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner then found that functional loss did not cause pain, fatigue, weakness, lack of endurance, or incoordination and she could not determine an estimated loss of range of motion without resorting to mere speculation. Regarding flare-ups, the examiner indicated the same as it related to weakness, fatigability, or incoordination that significantly limits the Veteran's functional ability with flare-ups or functional loss. Likewise, the February 2019 VA examination is inadequate for the same reason as the January 2018 VA evaluation. While the Veteran reported that his pain is aggravated when he reaches behind his back, lays his arm flat on a table, ties his shoe, and showers, as well as, he is unable to play sports with his kids because of the pain, the examiner stated she was unable to say without mere speculation whether weakness, pain, fatigability, or incoordination significantly limit his functional ability with repeated use over time. The same was noted for flare-ups. Therefore, the examination is inadequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus, for the reasons stated above, the claims are remanded for another VA examination that includes all pertinent information to ascertain the current severity and manifestations of the Veteran's service-connected disabilities. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestation of his service-connected left elbow disability. The claims file should be reviewed in conjunction with the examination. The examiner should identify all left elbow disabilities found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing, if possible. If the examiner 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 examiner should describe any pain, weakened movement, excess fatigability, instability, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner 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 examiner 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 examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner 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 examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes during the past 12 months. In addition, the examiner should identify any and all associated neurologic abnormalities. 2. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.