Citation Nr: 1803498 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-28 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to service-connected disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left leg/knee disability. 3. Entitlement to a rating in excess of 10 percent for lumbar strain disability. 4. Entitlement to a rating in excess of 30 percent for status post open tibia fibular fracture 3rd degree with rod placement, right leg (right leg disability). 5. Entitlement to a rating in excess of 30 percent for right ankle limitation of motion (right ankle disability) 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1997 to January 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript is of record. In December 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. These matters were previously before the Board in September 2014 (for the Veteran to be scheduled for a Board hearing), and in June 2015 (for clinical records and VA examinations). They have now returned to the Board for further appellate consideration. The Board acknowledges that in June 2017 correspondence, the Veteran wrote "[p]lease do not send correspondences to Jan Dils". An April 2013 VA Form 21-22 reflects that the Veteran appointed Jan Dils as his representative, someone from her office represented him at the December 2014 Board hearing, and September 2017 correspondence reflects that she was still representing him. The claims file does not include a proper revocation of her representation, nor a withdrawal by her. Thus, VA should continue to treat her as the Veteran's representative until the Veteran revokes authorization, or the Board approves her withdrawal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The claims file includes VA examination reports from April 2017 for the Veteran's left ankle, which notes right ankle ranges of motion and that the Veteran is unable to dorsiflex the right ankle leading to abnormal gait. Another VA examination report for the Veteran's feet reflects that he contended that he had tingling and burning in both feet which the Veteran felt was due to his arthritic changes, to include in the right ankle. A VA examination for the hip and thigh reflects that the Veteran reported slipping and falling on the ice and fracturing his right proximal femur resting in right hip since, and also reported that his left hip is minimally bothersome. An April 2017 VA examiner opined that it is as likely as not that the Veteran's left ankle is due to a service-connected disability. Finally, another VA examination for the Veteran's right knee and lower leg reflects that the Veteran reported that he was unable to work due to his right knee inability to kneel or squat; the report includes range of motion findings. While the above examination reports were procured for issues not currently before the Board, they do contain some relevant information as they pertain to the lower extremities; however, the RO did not consider the evidence in rendering a supplemental statement of the case (SSOC) on the issues currently on appeal. In October 2017 correspondence, the Board asked the Veteran's representative if she waived RO consideration of the evidence. She did not respond; thus, the Board assumes that she does not wish to waive RO consideration of the evidence and the pertinent issues should be remanded. Pursuant to the Board's 2015 remand, the Veteran was scheduled for examinations for an acquired psychiatric disability, a lumbar strain disability, a right leg disability, and a right ankle disability; the evidence reflects that he did not report for the scheduled examinations. Notably, he did report for several other examinations as detailed above. In June 2017 handwritten correspondence, the Veteran contends that he failed to report for the examinations due to a change of address, and he appears willing to appear for future examination. As several of the claims are being remanded for RO consideration of newly received evidence, the Board finds that the Veteran should be afforded another opportunity to report for the examinations, and where pertinent, the examinations, should comply with the requirements of 38 C.F.R. § 4.59 as interpreted by the Court in Correia v. McDonald, 28 Vet. Appl. (2016) as it pertains to active, passive, weight-bearing, and nonweightbearing ranges of motion. The Board notes that it has been difficult for VA to reach the Veteran in the past and/or to get him to show for examinations (e.g. see January 30, 2017 and February 7, 2017 clerical notes and July 2013 VA "no show" record. He has also changed addresses more than once during the pendency of his claims and has been homeless. March and April 2017 VA correspondence (regarding a notice of disagreement and an SSOC) were returned to VA as undeliverable with no forwarding address for the Veteran. In September 2017, the Veteran's representative provided "formal notification" of another new address. Based on the foregoing, if the Veteran fails to report for a future scheduled examination, the RO should document to the extent possible efforts to identify the Veteran's last address of record. Accordingly, the case is REMANDED for the following action: 1. Attempt to secure for the record copies of any (and all) updated clinical records of any VA and private treatment the Veteran has received. 2. Schedule the Veteran for examinations as detailed below. If the Veteran fails to show for an examination, please detail to the extent possible VA attempts to notify him of the examination (i.e. by phone and/or by mail and to which address). Please note the Veteran has a history of homelessness, but a new address was provided in Correspondence in VBMS dated 09/06/2017. A. With regard to an acquired psychiatric disability, following examination of the Veteran and review of his record, the examiner should respond to the following: (i.) Please identify by diagnosis each psychiatric disorder entity found since the appeal period began in approximately April 2008, to include PTSD, mood disorder, major depression with anxiety, psychotic disorder, and obsessive compulsive disorder. The examiner should reconcile any conflicting information in this regard. (ii.) As to any psychiatric disorder diagnosed, and to include PTSD, mood disorder, major depression with anxiety, psychotic disorder, and obsessive compulsive disorder, is it at least as likely as not (a 50% or greater probability) that such was caused or aggravated by (increased in severity due to) his service, and/or a service-connected disability (e.g. lumbar spine, right leg, and/or right ankle). (iii.) If the opinion is that a psychiatric disorder was not caused, but was aggravated by a service-connected disability, specify, to the extent reasonably possible, the degree of psychiatric disorder disability that resulted from such aggravation (i.e., identify the baseline level of severity of the psychiatric disorder before the aggravation occurred, and the level of severity of the psychiatric disorder after aggravation). A complete rationale for all opinions must be provided. B. With regard to the Veteran's service-connected lumbar spine, right leg, and right ankle disabilities, determine the severity of the Veteran's disabilities, to include as follows: (i.) Range of motion testing should include findings for active, passive, weight-bearing, and nonweight-bearing motion. (ii.) The examiner(s) should also describe the Veteran's functional impairment from his service-connected lumbar spine, right leg, and/or right ankle disabilities. (iii.) If the Veteran alleges that he has flare-ups of a disability, annotate the frequency, duration, alleviating, and precipitating factors, and if reasonably possible, the additional loss of function, if any, during a flare-up. 3. Thereafter, readjudicate the claims with consideration of examination findings in April 2017 and all additional examination reports and clinical records, if any. If any claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2017).