Citation Nr: 22010588 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-05 223 DATE: February 24, 2022 REMANDED A rating in excess of 10 percent for the service-connected reactive arthritis of the right elbow, residuals of epicondylar lateral debridement surgery, is remanded. An initial compensable rating for the service-connected surgical scar of the right elbow is remanded. REASONS FOR REMAND The Veteran had active service from August 1988 to December 2008. In July 2019, he testified at a hearing before the undersigned Veterans Law Judge. In October 2019, the Board of Veterans' Appeals (Board) remanded these claims for further evidentiary development. Specifically, the October 2019 Board remand directed the Regional Office (RO) to provide the Veteran with VA orthopedic, neurologic, and scar examinations to address all manifestations of his reactive arthritis of the right elbow and his right elbow surgical scar. The record reflects that, pursuant to the Board remand, the Veteran was scheduled for VA scar and elbow examinations in January 2020 but that he cancelled the examinations. Notably, the RO did not schedule the Veteran for a VA neurologic examination, as directed in the Board remand. In March 2020, the Veteran asked that the VA examinations be rescheduled because he was now willing and able to attend the examinations. The RO did not reschedule these examinations in relation to this appeal. However, before the appeal returned to the Board, the Veteran filed a new claim in November 2020 for an increased rating for his reactive arthritis of the right elbow. Pursuant to this new claim, and despite the fact that the issue was already on appeal, the Veteran was afforded an orthopedic VA examination for his right elbow in January 2021, which the RO considered in issuing a January 2021 rating decision continuing the 10 percent rating for the Veteran's reactive arthritis of the right elbow. However, the Veteran has not been afforded the VA scars and neurologic examinations for the disabilities on appeal as directed by the 2019 Board remand, despite his request to have them rescheduled and statement indicating that he is now available to attend them. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the Board cannot find that the RO complied with directive 3 of the October 2019 Board Remand. As such, the Board has no recourse but to remand these issues again to ensure that the previously requested development is completed. Id. The Board also notes that the January 2021 VA elbow examination did not adequately address the Veteran's right elbow ranges of motion after repetitive use over time or during flare-ups. Thus, the examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In Sharp, the United States Court of Appeals for Veterans Claims (Court) addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability," and the examiner's determination in such regard should, if feasible, be portrayed in terms of the degree of additional loss of range of motion due to pain on use or during flare-ups. In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court also concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot opine as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he/she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In the January 2021 VA examination report, the examiner provided contradictory statements regarding whether the Veteran's reported additional functional loss after repeated use over time and during flare ups of his right elbow. The examiner noted that the Veteran reported the limited motion during these times would vary from him not being able to move his elbow to it being only minimally affected. He also stated that he was unable to estimate ranges of motions during those times because the Veteran's medical records did not identify previous ranges of motion during repetitive use over time or during flare ups. Then, he noted that the Veteran was unable to describe the decreased ranges of motion after repetitive use over time or during flare ups, after he had already noted that the Veteran reported it varied from total loss of motion to minimal. As such, the report indicates that the examiner was able to elicit information from the Veteran which would have allowed him to provide estimates of functional loss during flare-ups or after repetitive use over time, but did not provide them. Thus, the Board finds the January 2021 VA elbow examination to be inadequate under Sharp. As such, a new VA examination is also needed to assess the current severity of the Veteran's service-connected right elbow reactive arthritis orthopedic disability before the Board can decide this claim. Finally, because the record shows that the Veteran cancelled his VA examinations in January 2020 but later submitted information indicating that he had been unavailable to attend them at that time, the Board hereby notifies the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, the Veteran must make reasonable efforts to assist VA in obtaining these VA examinations, including attending them as scheduled or providing good cause for rescheduling. This matter is, thus, REMANDED for the following action: Provide the Veteran with appropriate orthopedic, neurologic, and scar examinations to determine the severity of the service-connected reactive arthritis of his right elbow and residuals of epicondylar lateral debridement surgery as well as the service-connected surgical scar of his right elbow. The entire claims file must be made available to, and be reviewed by, the examiners in conjunction with the examinations. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiners should address the Veteran's reports of numbness and loss of grip strength in his right hand and pain associated with the surgical scar of his right elbow, to which he testified before the Board in October 2019. The orthopedic examiner in particular must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare upsas well as the degree of functional loss after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding additional functional loss due to repetitive use over time or flare-ups 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). A rationale for all requested opinions shall be provided. 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 the determination 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 this matter. 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 C. Davidoski, 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.