Citation Nr: 22013472 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-13 305 DATE: March 9, 2022 THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to a compensable disability rating from December 7, 2016, to September 25, 2018, and in excess of 30 percent from September 25, 2018, to January 20, 2021 for dermatitis and pruritus left anterior leg. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 25, 2016 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to a compensable disability rating from December 7, 2016, to September 25, 2018, and in excess of 30 percent from September 25, 2018, to January 20, 2021, for dermatitis and pruritus left anterior leg is remanded. Entitlement to a TDIU prior to August 25, 2016 is remanded. REASONS FOR REMAND The Veteran had active service from February 1982 to February 1986. Additionally, the Veteran had active-duty service from February 1987 to November 1988 but received a discharge under other than honorable conditions for that period. This case is before the Board of Veterans' Appeals (Board) on appeal from February 2014 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in San Diego, California. A transcript of the hearing is of record. In an October 2019 decision, the Board observed that it appeared that not all documents had been properly associated with the claims file. Upon remand, the RO associated numerous pertinent documents, which revealed that the additional issues of service connection for a neck and elbow disability and increased disability ratings for a left knee and skin disability were and are properly before the Board. However, all of these issues were addressed in the July 2019 Board hearing. Upon remand, the RO obtained the requested documents. In a subsequent October 2020 Board decision, these matters, along with the issue of entitlement to service connection for throat cancer, were remanded for further development. In a February 2021 rating decision, the RO granted the Veteran's claim for entitlement to service connection for throat cancer. Therefore, that issue is no longer before the Board. Additionally, the February 2021 rating decision granted a staged increased rating of 60 percent effective January 20, 2021 for the Veteran's service-connected skin disability. However, this staged increase does not represent a full grant of benefits sought. Finally, these matters, along with the issue of entitlement to an acquired psychiatric disability, were again remanded in May 2021. In a February 2021 rating decision, the RO granted the Veteran's claim for entitlement to service connection for throat cancer. Therefore, that issue is no longer before the Board. 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a right elbow disability is remanded. 3. Entitlement to a compensable disability rating from December 7, 2016, to September 25, 2018, and in excess of 30 percent from September 25, 2018 to January 20, 2021 for dermatitis and pruritus left anterior leg is remanded. 4. Entitlement to a TDIU prior to August 25, 2016 is remanded. The Board previously remanded these matters in order to obtain addendum opinions as to the etiology of the Veteran's neck and right elbow disabilities, and to obtain an opinion identifying any and all of the Veteran's past and current skin medications and indicate whether each is a systemic therapy that is like or similar to corticosteroids or other immunosuppressive drugs. Such opinions were provided in October 2021. With regards to the opinion on the veteran's claimed right elbow disability, the examiner rendered a negative opinion and essentially indicated that the Veteran did not have a currently diagnosed right elbow disability. Even without a current diagnosis, these reports of elbow pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Accordingly, a remand for a new VA medical opinion is warranted to better determine whether there is a current diagnosis of a right elbow condition, or alternatively if the Veteran's pain rises to the level of functional impairment in line with Saunders. Importantly, when VA undertakes to provide a Veteran with an examination or medical opinion, that examination or opinion must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). As a result, the Board finds that the October 2021 VA opinion is inadequate. As it is contrary to the holding in Saunders. Additionally, the Board notes that the Veteran's representative in the February 2022 Appellate Brief requested copies of the October 2021 examiners' curriculum vitae. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. However, if the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 21884 (Fed. Cir. July 23, 2019) (stating "The veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner.") Accordingly, upon remand, the curriculum vitae of Dr. A.J and Dr. L.F, the two October 2021 examiners, should be obtained, associated with the claims file, and a copy forwarded to the Veteran and his representative. Because the intertwined issues that would affect his determination for a TDIU are being remanded, his TDIU claim must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate them with the claims folder. 2. To the extent possible, obtain the curriculum vitae of Dr. A.J and Dr. L.F., the October 2021 examiners, associate them with the Veteran's claims file, and provide copies to the Veteran and his representative. 3. After completion of the first two directives, forward the Veteran's claims file to a qualified medical professional to obtain an addendum opinion as to the nature and etiology of the Veteran's claimed right elbow disability. If the clinician determines that an examination is necessary, one should be scheduled. First, the examiner should determine whether the Veteran has any current bilateral knee condition, which may include pain alone that rises to the level of functional impairment. If a diagnosis or functional impairment is not shown, it should be explained why this is so. After reviewing the record, including lay evidence submitted by the Veteran, the examiner must also provide and opinion as to whether it is at least as likely as not that the Veteran's right elbow disability is etiologically related to active service, to include as secondary to his service-connected right wrist disability. A full rationale must be provided. The examiner must address the May 2018 VA treatment note and the April 2014 private positive medical opinion by Dr. P.W. If necessary, the examiner must reconcile her or his findings with those documents. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate 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.