Citation Nr: 20043045 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 17-64 462 DATE: June 25, 2020 REMANDED Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for hemorrhoids is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2007 to September 2016, to include service in Pakistan and Afghanistan. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Board, in pertinent part, denied service connection for disabilities of the left wrist and right knee, and for hemorrhoids. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. 1. Entitlement to service connection for left wrist disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for hemorrhoids is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board erred in relying on November 2016 VA examination reports in denying service connection for disabilities of the left wrist and right knee, and for hemorrhoids. More specifically, the parties agreed that the reports contained inadequate rationales for the opinions to the effect that it was less likely than not that the Veteran’s disabilities were caused by or the result of his active duty service. As to the left wrist and right knee, the parties to the appeal agreed that the examiner noted that the Veteran suffered from flare-ups, but failed to quantify the extent of the Veteran’s functional loss in his range of motion, thereby rendering the examination report inadequate for rating purposes in accordance with Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). Regarding hemorrhoids, the parties noted that the examiner found there was no current disability. The parties observed, however, that the examiner noted the Veteran’s reported onset of hemorrhoid symptoms in 2010-11, but offered no opinion as to when the hemorrhoids supposedly resolved, including whether they had resolved during the appeal period. The parties agreed that a remand was required for a medical opinion addressing when, if ever, the Veteran’s hemorrhoids resolved after their reported onset in 2010-11. As the Court has directed the Board to take action consistent with the terms of the JMPR, the Board is bound by the parties’ assertions regarding the adequacy of the November 2016 VA examination reports. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). Further, the Court has also held that once VA has provided an examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, a new examination(s) and opinions are required in this case. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for examinations of his left wrist and right knee. The examiner(s) should review the record. All indicated tests should be conducted and the results reported. The examinations must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The examiner(s) must also attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner(s) should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any disabilities of the left wrist and right knee that have been present at any time since July 2016 (when the Veteran filed his claim for service connection). Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran scheduled for an examination for hemorrhoids. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should indicate whether the Veteran has had hemorrhoids at any time since July 2016 (when he filed his claim for service connection). If so, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that hemorrhoids had their onset in, or are otherwise attributable to, the Veteran’s period of active service. If the examiner concludes that the Veteran has not had hemorrhoids at any time since July 2016, the examiner should express an opinion addressing when, if ever, the Veteran’s hemorrhoids resolved after their reported onset in 2010-11. A complete rationale for any opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.