11-29 245
11-29 245
| Board of Vet. App. | May 22, 2017Background
- Veteran served active duty (1972–1976; 1990–1991) and National Guard/Reserve service; claimed service connection for bilateral elbow epicondylitis later characterized to include degenerative arthritis.
- RO awarded service connection in Sept 2010 (noncompensable) and in Aug 2012 recharacterized to include degenerative arthritis and assigned 10% ratings effective Aug 22, 2012.
- Board in June 2015 awarded initial increased 10% ratings for both elbows prior to Aug 22, 2012 but denied ratings in excess of 10% for the appeal period; Veteran appealed to the Court.
- Court vacated the Board’s denial and remanded for readjudication per the parties’ joint motion (Apr 2016); Board remanded in Jun 2016 for updated records and a VA exam addressing flare-ups and additional ROM loss.
- June 2016 VA examiner stated she could not estimate additional impairment during flare-ups without speculation but gave no explanation; VA also failed to obtain VA treatment records since Dec 2014 as previously directed.
- Board found the exam inadequate for failing to explain why speculation was required and ordered (1) obtain outstanding VA records since Dec 2014, (2) provide the file to the June 2016 examiner (or other clinician) for an addendum opinion quantifying additional ROM loss from pain/flare-ups or explaining why it cannot be estimated, and (3) readjudicate. Case REMANDED for further development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >10% for right elbow epicondylitis with degenerative arthritis | Veteran: symptoms, pain on use, and flare-ups cause greater functional loss warranting >10% | VA: existing evidence and exam do not support assignment of >10%; examiner could not opine beyond record | Remanded for addendum opinion and obtain missing VA records; no final rating made |
| Entitlement to >10% for left elbow epicondylitis with degenerative arthritis | Veteran: same functional loss and flare-ups justify >10% | VA: current evidence/exam inadequate to show >10% | Remanded for addendum opinion and obtain missing VA records; no final rating made |
Key Cases Cited
- Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner’s statement that an opinion would be speculative must be explained to be adequate)
- Stegall v. West, 11 Vet. App. 268 (1998) (Board remand imposes duty on VA to comply with remand instructions)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations/opinions are adequate for adjudication)
- Bowling v. Principi, 15 Vet. App. 1 (2001) (inadequate exam should be returned for clarification when necessary for appellate decision)
- Dunn v. West, 11 Vet. App. 462 (1998) (VA facilities’ records are constructively in VA’s possession for claim adjudication)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (same principle regarding VA possession of its records)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence after remand)