Citation Nr: 21070814 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 20-24 956 DATE: November 26, 2021 REMANDED Entitlement to service connection for a disorder claimed as pain in the long bones is remanded. Entitlement to an initial disability rating in excess of 20 percent for prostate cancer, status post radical prostatectomy is remanded. Entitlement to an initial compensable rating for painful scars of the abdomen, previously rated as abdomen scars, prior to February 27, 2020 is remanded. Entitlement to an initial disability rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, for the period beginning February 27, 2020 is remanded. Entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for prostate cancer, status post radical prostatectomy is remanded. Entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for painful scars of the abdomen, previously rated as abdomen scars is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to August 1969. He also had a period of active duty for training (ACDUTRA) from January1967 to May 1967. In August 2020 and August 2021, the Board remanded the claim for service connection for pain in the long boned for further development by the originating agency. The case has been returned to the Board for further appellate action. In January 2019, the Board denied the Veteran's claims for entitlement to an initial disability rating in excess of 20 percent for prostate cancer, status post radical prostatectomy; entitlement to an initial compensable rating for painful scars of the abdomen, previously rated as abdomen scars, prior to February 27, 2020; entitlement to an initial disability rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, for the period beginning February 27, 2020; entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for prostate cancer, status post radical prostatectomy; and entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for painful scars of the abdomen, previously rated as abdomen scars. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2021 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the January 2019 Board decision as it pertained to the increased rating and earlier effective date claims noted above. The case has been returned to the Board for further adjudication. 1. Entitlement to service connection for a disorder claimed as pain in the long bones is remanded. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As noted in the Board's August 2021 remand, the March 2021 VA examiner did not fully address the claim for service connection for a disorder claimed as pain in the long bones. In this regard, in the July 2021 VA Form 9, the Veteran's representative indicated that the pain in the long bones consisted of both the arms and legs. The March 2021 VA examiner only considered the lower extremities. As such, in accordance with the Board's August 2021 remand directives, another VA medical opinion was submitted in September 2021. However, the September 2021 examiner also failed to fully address the claim for service connection for a disorder claimed as pain in the long bones, as he too only considered the lower extremities. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). As such, and for the reasons noted above, the Board finds that another remand is required to obtain an addendum medical opinion in compliance with the Board's August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to an initial disability rating in excess of 20 percent for prostate cancer, status post radical prostatectomy is remanded. 3. Entitlement to an initial compensable rating for painful scars of the abdomen, previously rated as abdomen scars, prior to February 27, 2020 is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, for the period beginning February 27, 2020 is remanded. 5. Entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for prostate cancer, status post radical prostatectomy is remanded. 6. Entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for painful scars of the abdomen, previously rated as abdomen scars is remanded. Additional pertinent evidence has been added to the record since the issuance of the statement of the case (SOC) in March 2020. See November 2021 statement from the Veteran's attorney. The issues denied in the March 2020 SOC, including entitlement to an initial disability rating in excess of 20 percent for prostate cancer, status post radical prostatectomy; entitlement to an initial compensable rating for painful scars of the abdomen, previously rated as abdomen scars, prior to February 27, 2020; entitlement to an initial disability rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, for the period beginning February 27, 2020; entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for prostate cancer, status post radical prostatectomy; and entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for painful scars of the abdomen, previously rated as abdomen scars, have not been readjudicated since the additional evidence was added to the record. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the SOC, but prior to certification to the Board is to be addressed in an additional supplemental statement of the case (SSOC). 38 C.F.R. § 19.31 (b) (2019). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 19.37 (b) and 20.1304(c) (2019). Exceptions are when the Veteran or his representative waives this review, or when the Board grants the benefit being sought in full. Id. In this case, additional evidence has been added to the record following certification of the issues on appeal noted above to the Board in June 2020. Neither the Veteran nor his representative has waived AOJ review of this additional evidence. See 38 U.S.C. § 7105 (e) (2012); 38 C.F.R. § 20.1304 (c) (2019). In fact, in a September 2021 letter, the Veteran's attorney noted that additional evidence would be submitted and specifically requested that the case be remanded to the RO once the evidence was received so that the additional evidence could be reviewed by the RO. See September 2021 correspondence from the Veteran's attorney. Thus, a remand is required so that a SSOC may be issued with consideration of all the evidence of record with regard to the remanded claims on appeal noted above. The Board also notes that in the aforementioned September 2021 correspondence, the Veteran's attorney asserted a Francway challenge against the VA examiners that conducted the most recent VA examinations pertaining to the Veteran's claims for increased ratings and earlier effective dates, noted above. Specifically, the attorney requested the qualifications of all examiners who have performed compensation and pension examinations on him. See September 2021 correspondence from the Veteran's attorney. Under Francway, the Court held that a Veteran is required to raise some challenge to the qualifications of a VA examiner before the Board in order to require VA to produce some information regarding the competency of the examiner. Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). The Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion. Id. at 1380. Typically, a claimant must have the ability to secure from the VA the information necessary to raise the competency challenge. Id. Once the request is made for information as to the competency of the examiner, a claimant normally has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner. Id. This is mandated by the VA's duty to assist. Id. Initially, the Board notes that the Veteran's attorney has not set forth any specific reasons why he believes the VA examiners are not qualified to perform the examinations and give the opinions that they rendered. Moreover, given that the examinations were for increased ratings, there is no specialized knowledge the examiners were required to possess in order for the examinations to be adequate. Had the Veteran submitted evidence from another examiner such that a comparison of qualifications may be relevant, such an inquiry might be merited. However, as it stands now, that has not occurred. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, send the Veteran's claims file to an appropriate medical professional, other than the examiner who rendered the opinion in March and September 2021, to obtain an opinion regarding the Veteran's claim for service connection for a disorder characterized as pain in the long bones. The Veteran's electronic claims file must be made accessible to the designated professional for review. A new VA examination should only be provided if the VA medical opinion provider deems that one is necessary to form an opinion. Following the review of the claims file, the VA medical opinion provider should respond to the following: (a) clarify whether the Veteran has a disorder, characterized as pain in the long bones, (to include both the legs and arms), separate from the already service-connected peripheral neuropathy of the upper and lower extremities. (b) If the VA medical opinion provider determines that the Veteran has a currently diagnosed disorder, characterized by pain in the long bones, he/she should opine as to whether the disorder is at least as likely as not (50 percent probability or greater) etiologically related to active service, to include conceded exposure to herbicide agents in service. A complete rationale should be given for all opinions and conclusions expressed If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above and any other development deemed necessary, review the expanded record, taking into consideration all relevant evidence associated with the record since the March 2020 SOC, and readjudicate the claims for service connection, increased ratings, and earlier effective dates on appeal. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.