Citation Nr: 21001613 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-31 980 DATE: January 11, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to a compensable evaluation prior to December 27, 2012 and an evaluation in excess of 10 percent thereafter for right knee patellofemoral pain syndrome is remanded. Entitlement to an initial compensable evaluation prior to December 27, 2012 and an evaluation in excess of 10 percent thereafter for right ankle osteoarthritis is remanded. Entitlement to an initial compensable evaluation for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1992 to August 1998, June 2006 to May 2007, and November 2007 to September 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2014 rating decision, the rating for the Veteran’s service-connected right knee patellofemoral pain syndrome was increased to 10 percent effective December 27, 2012, and the rating for the service-connected right ankle osteoarthritis was also increased to 10 percent effective December 27, 2012. However, as the increases did not constitute a full grant of the benefits sought on appeal, the Veteran’s claims for increased ratings for these disabilities remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The case was previously before the Board in September 2018 when it was remanded for further development. An attorney previously represented the Veteran in this appeal. In September 2020, the attorney stated that he was withdrawing from representing the Veteran. As this withdrawal was received within 90 days of the Board’s July 2020 letter notifying the Veteran and his attorney that his appeal was before the Board, it is a valid withdrawal of representation. 38 C.F.R. § 20.1305. The Veteran has not subsequently submitted a valid form appointing a different representative; thus, he is considered to be proceeding pro se. In the Veteran’s former attorney’s September 2020 withdrawal of representation letter, he also indicated that he was submitting under separate cover a withdrawal of appeals before the Board. However, VA never received a separate submission withdrawing any appeal before the Board. An appeal withdrawal must be in writing and, if the appeal involves multiple issues, must specify that the appeal is withdrawn in its entirety, or list the issues withdrawn from the appeal. 38 C.F.R. § 19.55 As the attorney’s submission indicated that the Veteran may want to withdraw his appeals but did not clearly identify whether the entire appeal was being withdrawn or list specific issues being withdrawn, the Board in November 2020 sent a letter asking the Veteran to verify in writing whether he intended to withdraw any issue on appeal before the Board. The letter indicated that if a response was not received within 30 days, the Board would proceed with adjudication of the appeal. More than 30 days has passed and a response to the Board’s letter has not been received; therefore, by the terms of the November 2020 letter, the Board will assume the Veteran wishes to continue with his appeal of all issues before the Board and will proceed with adjudication of the claims. In the previous September 2018 remand, the Board directed that VA examinations be obtained regarding all the claims on appeal. The remand also indicated that notice of the VA examinations should be mailed to the Veteran and his representative, and a copy of the notice letter must be associated with the claims file. The record reflects that there was a request for the scheduling of these examinations, but there is no copy of the letter in the claims file informing the Veteran of the time, date, and place of his examinations. There is notification in the claims file that they were cancelled on October 28, 2019 because the Veteran failed to appear. However, VA treatment records from September 2019 note that the Veteran was incarcerated at that time and was scheduled to be released in October 2019. Subsequent VA treatment records indicate that the Veteran failed to show up for appointments, but the Veteran did call the RO in November 2019, indicating that he did not receive a letter dated in September 2019 for a VA headaches examination. When the examination was rescheduled for November 2019, the Veteran did appear for that examination. As there is no evidence of record of the Veteran’s notification of the examinations, and there is evidence that the Veteran was incarcerated at or around the time of the examinations, and that the Veteran did appear for another examination in November 2019, the issues are remanded to provide the Veteran with an additional opportunity to attend these VA examinations. The Veteran should note that the duty to assist is not absolute. Although VA has a duty to assist in the development of a claim, this duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim. If the Veteran does not attend these examinations, the claims can only be decided on the evidence of record. 38 C.F.R. § 3.655. Additionally, updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. After obtaining any additional records, provide the Veteran an appropriate VA examination (or telehealth interviews, if an in-person examination is not feasible) to determine the nature, extent, and etiology of his diabetes mellitus. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner must provide an opinion, consistent with sound medical judgment, on the following questions: a) Is it at least as likely as not (a 50 percent or greater probability) that diabetes mellitus is related to the Veteran’s service? b) Is it at least as likely as not that diabetes (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing these opinions, the examiner must consider and specifically discuss the history of elevated glucose levels in the Veteran’s service treatment records. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Also provide the Veteran an appropriate VA examination (or telehealth interviews, if an in-person examination is not feasible) to determine the nature, extent, and etiology of his left knee disability. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. a) The examiner should clearly identify all current chronic disability(ies) of the left knee, including whether there are any symptoms that cause functional impairment. b) Then, with respect to each such disability, the examiner must provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed left knee disability (or any pain or other symptoms causing functional impairment) is related to the Veteran’s service, to include complaints of bilateral knee pain in December 2007, which showed left knee tenderness. c) The examiner must also opine whether it is at least as likely as not (a 50 percent or greater probability) that any left knee disability is: i) proximately due to the Veteran’s service-connected right knee and right ankle disabilities; or ii) is aggravated beyond its natural progression (i.e., any increase in the severity beyond its natural progression) by the Veteran’s service-connected right knee and right ankle disabilities. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Also provide the Veteran an appropriate VA examination (or telehealth interviews, if an in-person examination is not feasible) to determine the nature, extent, and etiology of his pes planus. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. a) The examiner must provide an opinion as to whether there is clear and unmistakable (obvious or manifest) evidence that pes planus preexisted the Veteran’s periods of active duty service (from July 1992 to August 1998, June 2006 to May 2007, and November 2007 to September 2009). b) If the answer is that pes planus preexisted service, then is there clear and unmistakable (obvious or manifest) evidence that any such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during active duty service (i.e., the disability was not aggravated by service). c) If the answer to questions (a) and (b) is “no,” then assume as true that the Veteran entered service without that disability. Then, with this assumption in mind, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that pes planus is related to the Veteran’s active duty service. d) The examiner must also opine whether it is at least as likely as not (a 50 percent or greater probability) that pes planus is: i) proximately due to the Veteran’s service-connected right knee and right ankle disabilities; or ii) is aggravated beyond its natural progression (i.e., any increase in the severity beyond its natural progression) by the Veteran’s service-connected right knee and right ankle disabilities. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. Schedule the Veteran for examinations by an appropriate clinician(s) to determine the current severity of his service-connected right knee patellofemoral pain syndrome AND his service-connected right ankle osteoarthritis. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the applicable rating criteria. In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. 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. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.