Citation Nr: 21001644 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-27 733A DATE: January 11, 2021 REMANDED Entitlement to service connection for a right knee disorder secondary to residuals of a total left knee replacement and/or a dorsal/lumbar condition is remanded. Entitlement to special monthly compensation (SMC) for loss of use of lower extremities is remanded. Entitlement to automobile and adaptive equipment, or adaptive equipment only, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1951 to March 1955. These matters were previously denied in a February 2018 Board decision. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to Joint Motion for Remand (JMR), vacated and remanded the claims in a November 2018 order. In August 2019, the Board remanded the claims for further evidentiary development. Although the Board regrets the additional delay, remand is again needed before the claims may be considered. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a right knee disorder secondary to residuals of a total left knee replacement and/or a dorsal/lumbar condition is remanded. 2. Entitlement to SMC for loss of use of lower extremities is remanded. 3. Entitlement to automobile and adaptive equipment, or adaptive equipment only, is remanded. In the August 2019 remand, the Board found that there was a pending claim for entitlement to secondary service connection for a right knee disorder. As such, the Agency of Original Jurisdiction (AOJ) was directed to adjudicate the claim for service connection for a right knee disorder secondary to residuals of a total left knee replacement and/or a dorsal/lumbar condition. Further, to comply with the guidance of the JMR, the Board found that a new VA examination was needed. The AOJ determined that a VA opinion was needed before the right knee service connection claim could be adjudicated. In October 2020, a request for a VA examination was issued. A notification letter was also sent to the Veteran, informing him that his local VA medical facility would be scheduling him for the examination. He was also notified that failure to report for the examination without good cause could result in denial of his claims. The letter was sent to the Veteran’s address of record and was not returned as undeliverable to VA. In November 2020 Supplemental Statements of the Case (SSOC), the AOJ denied the claims on appeal. The AOJ also denied service connection for a right knee disorder. It was noted that the Veteran was scheduled for an examination in connection with his claims but did not attend the examination and did not show good cause for his failure to do so. The SSOC was sent to the Veteran’s address of record and was not returned as undeliverable to VA. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) holds that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The exact date of the scheduled examination is not included in the claims file. However, from the date of request and the date of the SSOCs it is apparent that it was scheduled sometime between October 16, 2020, and November 17, 2020. The Veteran has not submitted good cause for missing the VA examination. However, a review of the Veteran’s VA treatment records indicates that he was hospitalized several times during that period for several physical conditions and a surgical procedure. As such, the Board finds that good cause, namely illness and hospitalization of the Veteran, has been shown for his failure to report for the examination. As directed by the JMR, the previously requested examination is necessary to determine whether the Veteran is entitled to the benefits on appeal. Accordingly, the Board finds that remand is necessary to obtain the examination before it may proceed to consider the claims. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, specifically to include records since November 2020, and associate them with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current extent and severity of any service-connected lower extremity disorders. The examiner should review the claims file and note that such review took place. The examiner is asked to address the following: (a.) Determine whether it is at least as likely as not (probability of 50 percent or better) that his right knee disorder was caused or aggravated (i.e., worsened beyond natural progression) by a service-connected disability, including residuals of a total left knee replacement and/or a dorsal/lumbar condition. 1. In determining whether his claimed condition is aggravated by any service-connected disability, discuss a baseline level of severity of the claimed condition established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. 2. If the examiner determines that the Veteran’s right knee disorder was caused or aggravated by a service-connected disability, the functional impact of the right knee disorder should be considered when responding to the inquiries below. 3. The current extent and severity of any right knee disorder should also be evaluated. (b.) Conduct VA examinations of the Veteran’s service-connected residuals of a total left knee replacement and a dorsal/lumbar condition to determine the current extent and severity of the disabilities and their manifestations. (c.) Determine whether, due to service-connected disabilities alone, the Veteran suffers from the loss of use of either foot. By VA regulation, a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be considered when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017); Tucker v. West, 11 Vet. App. 369, 373 (1999). (d.) Determine whether the Veteran’s service-connected disabilities alone affect the functions of balance and propulsion so as to preclude locomotion, including during flare-ups. “Preclude locomotion” means the necessity for regular, constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. (Continued on the next page)   (e.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.