Citation Nr: 20004306 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 13-09 004A DATE: January 17, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than major depressive order, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for spine disorder (claimed as low back pain) is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for bilateral ankle disorder is remanded. Entitlement to a disability rating in excess of 10 percent for left knee disability is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2008 to November 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge during a March 2017 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The Board notes this appeal originally included entitlement to service connection for major depressive disorder; however, this issue was granted in a December 2017 Board decision, and as such, is no longer on appeal. The claims file indicates that in November 2017, the California Department of Veterans Affairs (CDVA) submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative. In a November 2019 correspondence, the RO informed the Veteran that the form was incomplete as the POA did not provide the date the form was signed. The most recent POA form of record, dated December 2019, again appointed the CDVA as the Veteran's representative, but was missing the second page of the form, which included the signature portions. In a January 2020 correspondence, the RO informed the Veteran that the VA is unable to disclose any records to the representative or provide the representative access to her VA electronic file until a completed form is received. Unless a claimant specifically indicates otherwise, the receipt of a new POA executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. See 38 C.F.R. § 14.631(f)(1). As of the issuance of this Board decision, a completed VA Form 21-22 for the CDVA has not been submitted. However, with the submission of a VA Form 21-22 for CDVA, there is clear intent by the Veteran to revoke any previous POA. Accordingly, the Board recognizes that the Veteran is unrepresented in this matter until a completed Form 21-22 is signed by the CDVA. Furthermore, if a completed Form 21-22 is submitted for CDVA, the CDVA should have the opportunity to submit a Statement of Accredited Representative in Appealed Case (VA Form 646) prior to the Board’s review of the case should the case return to the Board. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that she is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Service connection for an acquired psychiatric disorder, other than major depressive order, to include PTSD 2. Service connection for spine disorder 3. Increased rating in excess of 10 percent for left knee disability 4. Increased rating for hemorrhoids This matter was previously before the Board in December 2017, wherein the Board remanded for additional development to include scheduling the Veteran for examinations. Per the December 2017 Board remand instructions, in September 2019, the RO scheduled the Veteran for VA examinations for service connection for the spine and mental health disability and examinations for increased ratings for the left knee and hemorrhoids. However, correspondence from the examination contracting facility dated October 2019 shows that the examinations were cancelled because the facility was unable to contact the Veteran. It is unclear what steps the RO and/or the VA contracting facility took to contact the Veteran to provide notice of the examinations. No further explanation was provided, and there is no documentation in the record of any specific attempts to contact the Veteran. It is well established that VA's duty to assist includes the provision of an adequate examination when additional medical evidence is needed to substantiate a claim on appeal. See 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the lack of documentation regarding the scheduling of the examinations in this case, the Board finds that VA is obligated to attempt to reschedule the examinations in compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In doing so, all attempts to contact the Veteran and inform her of the scheduled examinations should be documented in the record. If the Veteran cannot be reached, and there is an updated VA Form 21-22 on file, the CDVA should be contacted to assist with contacting the Veteran. 5. Service connection for left shoulder disorder 6. Service connection for right knee disorder 7. Service connection for bilateral ankle disorder The Veteran asserts that her left shoulder, right knee, and bilateral ankle disorders are causally related to her active service. More specifically, she relates her injuries to an incident during basic training when she fell off a rope and landed into a net. A review of the Veteran’s service treatment records (STRs) show that she complained of knee pain and ankle pain in October 2008. STRs from October 2008 also show that the Veteran stated the pain in her ankles and knees progressed while wearing a rucksack. The Veteran’s STRs are silent for treatment related to her left shoulder. However, during the March 2017 Board hearing, the Veteran testified that she fell into a net landing on her shoulder in basic training and was injured. She also injured her spine, right knee and bilateral ankles due to this fall. She further testified that during a separate incident, she was marching and fell down with her gear. See March 2017 Board transcript at pgs. 25-27. In conjunction with the Veteran’s claim for service connection for orthopedic disorders, to include the left shoulder, right knee, and bilateral ankles, she was afforded a VA examination in October 2009. The VA examiner diagnosed right knee sprain, left shoulder sprain, and bilateral ankle sprain, but stated that the conditions were quiescent at the time and therefore did not opine as to whether such conditions were related to service. A VA treatment record from February 2010 indicates that the Veteran continued to have knee, ankle and shoulder pain. As there is no VA medical opinion with respect to the left shoulder, right knee, and bilateral ankles, a remand is necessary to determine the nature of these conditions. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2019 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should be informed of her scheduled examinations by all available avenues, including by telephone and/or letter. If there is an updated VA Form 21-22 for the CDVA, and if the RO is unable to contact the Veteran directly, the Veteran’s representative, CDVA, should be contacted. The RO is asked to document and include in the record all efforts taken to accomplish the scheduling of the examinations. 3. Once the above has been completed, schedule the Veteran for a VA knee examination to assess the severity of the service-connected left knee disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Specifically, the Veteran’s left knee should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask her to report or demonstrate her range of motion during the flare-ups. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The VA examiner should also describe the functional impairment caused by the Veteran’s left knee disability. 4. Schedule the Veteran for a VA examination to determine the current severity of her hemorrhoid disability. The Veteran’s file must be reviewed by the VA examiner. 5. Schedule the Veteran for a VA mental health examination with medical opinion to address the claim for the acquired psychiatric condition. The decision for an in-person examination of the Veteran for the psychiatric condition is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to her acquired psychiatric disorders other than depression at any time during the claim period (i.e., from September 2009 to present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service. If a diagnosis of PTSD is provided, opine as to whether any of the Veteran’s claim in-service stressors support a diagnosis of PTSD. In so opining, the examiner should consider all medical and lay evidence of record, including the Veteran’s March 2017 Board hearing testimony. During the March 2017 Board hearing, the Veteran reported that her problems began during basic training when she was called names, teased, accused of giving sexual favors, and encountered other types of race, sex, and age-related harassment. See March 2017 Board hearing transcript at pgs. 7-13. Service treatment records note a diagnosis of adjustment disorder with disturbance of emotions and conduct. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 6. Schedule the Veteran for a VA examination with medical opinion to address the claim for a back and/or neck condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to her cervical, thoracic, or lumbar spine disorder at any time during the claim period (i.e., from September 2009 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall into a net landing on her back/neck/shoulder and her fall when marching with all of her gear. If arthritis is diagnosed, the examiner should also opine whether it is at least as likely as not (50 percent probability or greater) arthritis manifested to at least a compensable degree within one year of her discharge from active duty. If so, the examiner should comment on the nature of those manifestations. In so opining, the examiner should consider all medical and lay evidence of record, including the Veteran’s March 2017 Board hearing testimony. During the March 2017 Board hearing, the Veteran testified that she fell into a net landing on her back/neck/shoulder in basic training and was injured, and that another time she fell down when marching with all of her gear and was placed on profile. Service treatment records note neck and back pain, and also note the pain is worse with carrying gear. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 7. Schedule the Veteran for a VA examination with medical opinion to address the claim for a left shoulder condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to her left shoulder disorder at any time during the claim period (i.e., from September 2009 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall into a net landing on her back/neck/shoulder and her fall when marching with all of her gear. In so opining, the examiner should consider all medical and lay evidence of record, including the Veteran’s March 2017 Board hearing testimony. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 8. Schedule the Veteran for a VA examination with medical opinion to address the claim for a right knee condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to her right knee disorder at any time during the claim period (i.e., from September 2009 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall into a net landing on her back/neck/shoulder and her fall when marching with all of her gear. Service treatment records note knee pain. In so opining, the examiner should consider all medical and lay evidence of record, including the Veteran’s March 2017 Board hearing testimony. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 9. Schedule the Veteran for a VA examination with medical opinion to address the claim for the bilateral ankle condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to bilateral ankle disorder at any time during the claim period (i.e., from September 2009 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall into a net landing on her back/neck/shoulder and her fall when marching with all of her gear. Service treatment records note ankle pain. In so opining, the examiner should consider all medical and lay evidence of record, including the Veteran’s March 2017 Board hearing testimony. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.