Citation Nr: 18153851 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-25 056 DATE: November 29, 2018 REMANDED Entitlement to an initial compensable rating for status post right-hand fracture is remanded. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain with lumbar degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome right knee is remanded. Entitlement to an initial compensable rating for lower limb length discrepancy right leg is remanded. Entitlement to an initial compensable rating for scar left forearm status post laceration is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2004 to July 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial compensable rating for status post right-hand fracture. 2. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain with lumbar degenerative disc disease. 3. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome right knee. 4. Entitlement to an initial compensable rating for lower limb length discrepancy right leg. 5. Entitlement to an initial compensable rating for scar left forearm status post laceration are all remanded. The Veteran has been scheduled for multiple VA examinations. Initially, he was scheduled in October 2013, but relocated according to a telephone report of contact in October 2013. He then cancelled a VA examination in November 2013 due to a training conflict as he was out of state. His representative contacted the VA in February 2014 to advise of a change of address and a request to re-schedule examinations near his current address of record. Subsequently, he was scheduled for a VA examination in March 2014 where he failed to report. The RO then issued a statement of the case (SOC) in June 2014 denying all issues. The Veteran promptly filed a Form 9 in June 2014, perfecting his appeal. The Form 9 asserted that the re-scheduled VA examinations were in the wrong location due to his change of address. Thereafter, the RO scheduled VA examinations in January 2016 and April 2016. The Veteran was contacted in March 2016 prior to the scheduling of the April 2016 examination. He asserted that he had been employed overseas and had recently returned to the United States, which is why he failed to report to the January 2016 examination. However, there is a question as to whether the Veteran received the notification for the April 2016 examination or whether or not he was actually present in the United States. After he failed to report in April 2016, the record contains returned mail in June 2017. There are no notifications from the Veteran regarding his address following his overseas employment associated with the claims file. Furthermore, his representative in a memorandum dated October 2017, asserted that the Veteran was still abroad when the April 2016 VA examination was scheduled. Therefore, the Board finds another set of VA examinations should be re-scheduled in order to afford the Veteran proper due process rights. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matters are REMANDED for the following actions: 1. Update/Obtain VA treatment records from July 2016 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to his status post right-hand fracture. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s right-hand fracture on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to his thoracolumbar strain with lumbar degenerative disc disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s thoracolumbar strain with lumbar degenerative disc disease on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to patellofemoral pain syndrome right knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s right knee patellofemoral pain syndrome on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 5. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to his lower limb length discrepancy right leg. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s right leg lower limb length discrepancy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 6. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to his scar left forearm status post laceration. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s left forearm scar on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel