Citation Nr: 1605650 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 09-26 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2003 to November 2008, including service in Iraq and Afghanistan, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for a low back disability, a bilateral knee disability, left ear hearing loss, and tinnitus. In June 2009, the RO granted service connection for tinnitus assigning a 10 percent rating effective November 13 2008. There is no subsequent correspondence from the Veteran expressing disagreement with the rating decision. Accordingly, the issue of service connection for tinnitus is no longer in appellate status. This case was previously before the Board in November 2013 when, in pertinent part, the current appellate claims were remanded for further development. Although further delay is regrettable, for the reasons discussed in greater detail below, the Board finds that additional remand is necessary in this case. Consequently, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. In the November 2013 Board decision, the Board denied service connection for left ear hearing loss. There is no subsequent correspondence from the Veteran expressing disagreement with the Board decision. Accordingly, the issue of service connection for left ear hearing loss is no longer in appellate status. REMAND The Veteran seeks service connection for low back, right knee and left knee disability, essentially maintaining that the onset of these conditions was during service. He also cites his in-service treatment for back problems, which were acknowledged by the RO. As to his back disability, however, he has not been diagnosed as having a current disability despite credibly reporting having recurrent back problems since service; the Veteran has also not been diagnosed as having right knee or left knee disabilities. In the Board's November 2013 remand, it directed the RO to send the claims file to an appropriate VA examiner to provide an opinion as to whether it is at least as likely as not that any currently diagnosed low back and/or bilateral knee disability had its onset during active duty or is otherwise causally or etiologically related to his active duty or any incident therein. In addition, if the VA examiner determines that the Veteran's symptoms cannot be attributed to any known clinical diagnoses, the examiner should provide an opinion as to whether such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service, or a medically unexplained chronic multisymptom illness. In a correspondence dated January 14, 2014, the VA hospital in Buffalo notified the Veteran that they have been unable to reach him by phone to schedule a VA examination. The Veteran was instructed to call the hospital to schedule an examination, and that if they did not hear from the Veteran by January 28, 2014, the referral would be cancelled. A February 2014 deferred rating decision indicates that on two occasions VA examinations were not scheduled because the notifications sent to the Veteran were returned as undeliverable. However, it was noted that the Veteran had several appointments at that VA hospital in recent months. The Veteran has not submitted a response to why he did not show for the examinations. In a November 2014 rating decision, the disability rating for the Veteran's posttraumatic stress disorder (PTSD)/depression disability was proposed to be decreased from 50 percent to 0 percent because the Veteran failed to report for a scheduled VA reexamination without good cause. In a November 2014 statement from the Veteran, he stated that he intended to attend the reexamination but three appointments that were scheduled for him were postponed by the hospital. Further, he indicated that he was not provided the date for the last appointment. He stated that, "there seems to be some kind of miscommunication here or a paperwork error." In addition, he indicated that he would attend a rescheduled examination. The examination for PTSD was rescheduled and provided to the Veteran in July 2015. Although the Veteran has not submitted a response regarding him not scheduling his back and bilateral knee VA examinations, his response to why he missed his PSTD examination indicates that he had communication difficulties with VA in scheduling the examination; and thus, affording the Veteran the benefit of the doubt, the Board finds that he also had communication difficulties with VA in scheduling his back and bilateral knee examinations. Therefore, the Board finds that the Veteran provided good cause for not scheduling his post-remand VA examinations. See 38 C.F.R. § 3.655(a). Consequently, the Board finds that another remand to provide him with these needed VA examinations is required. See 38 U.S.C.A. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Accordingly, the Veteran should be re-scheduled for the requisite examinations. The AOJ should send a notification letter to the Veteran regarding the consequences if he fails to appear for the examination and should ensure that a copy of the letter is associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran notice that advises him of the information and evidence necessary to substantiate his claims for service connection, to include as due to an undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service low back, right knee, and left knee symptomatology. This should specifically include whether the Veteran began having back or knee problems while serving in combat. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Ask the Veteran to identify any VA and non-VA health care providers who rendered post-service treatment to him for low back and bilateral knee conditions. After he signs the appropriate releases and/or authorizations, any identified records must be obtained. All negative responses must be included in the record. If any identified records are not available the Veteran must be notified. 4. Thereafter, schedule the Veteran for a VA examination to determine the nature, extent, and etiology of any low back as well as any right knee or left knee disability that he may have. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies) ? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. The examiner must also acknowledge the Veteran's service in Iraq and Afghanistan, his award of the Combat Infantryman Badge, and his competent and credible report of having recurrent back problems since service. A report of the examination should be prepared and associated with the Veteran's VA claims file. 5. Then readjudicate the appeal. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).