Citation Nr: 21071283 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-58 699 DATE: November 30, 2021 REMANDED The claim for an increased rating for posttraumatic stress disorder (PTSD), rated 30 percent disabling, is remanded. The claim for service connection for a disability of the third finger of the right hand is remanded. The claim for service connection for a right ankle condition, including as secondary to service-connected right foot disability, is remanded. REFERRED The Board refers a claim for increased rating for service-connected right foot disability based on the Veteran's September 2019 testimony, as discussed below. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968. The Department of Veterans Affairs is grateful for his service. The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in September 2019. A transcript of this hearing is of record. By an April 2020 decision, the Board of Veterans' Appeals (Board) denied the appealed claims for service connection for a disability of the third finger of the right hand and for service connection for a right ankle condition. The Veteran appealed these denials, and in April 2021 the United States Court of Appeals for Veterans Claims (Court) approved at Joint Motion for Remand (Joint Motion) of the parties vacating the Board's April 2020 decision and remanding the case for action consistent with the Joint Motion. The case accordingly returns to the Board for such action. Because the April 2020 Board decision is vacated, the Board here repeats (above) referral to the VA Regional Office (RO) which was contained in that decision. The parties to the Joint Motion found that the Board failed to provide adequate reasons and bases by failing to address whether VA had satisfied its duty to assist the Veteran in obtaining all available medical records from Muskegon Veterans Outpatient Clinic. The parties noted that whereas the claims file contained records from that facility as far back as 2012, the Veteran had stated on a VA Form 21-4142 submitted in September 2013 that he was treated for "[a]ll claimed [m]edical [c]onditions" at that facility beginning in January 2000. Because the record does not inform whether there are prior records from that VA facility that were not obtained, records prior to those already obtained from 2012 must be sought prior to the Board's readjudication of the appealed claims. 1. The claim for an increased rating for PTSD, rated 30 percent disabling, is remanded. While in April 2020 the Board remanded the claim for increased rating for PTSD, the requirements of the Joint Motion to obtain potential prior records from Muskegon Veterans Outpatient Clinic are applicable to this increased rating claim by virtue of those identified VA records potentially being pertinent to the claim. Specifically with respect to the PTSD claim, the Board's April 2020 remand instructions, including for an additional records-based examination reconciling past examination findings and testimony by the Veteran and his spouse, appear to have been satisfactorily completed. 2. The claim for service connection for a disability of the third finger of the right hand is remanded. Remand is warranted for the above-discussed VA records development. The parties to the Joint Motion also found that at the September 2019 hearing addressing the appealed issues the undersigned VLJ failed in the duty to fully explain the issues and suggest submission of evidence that may have been overlooked, as required by 38 C.F.R. § 3.103(d)(2), when the undersigned stated that the issues on appeal included service connection for loss of feeling of the third finger of the right hand but the Veteran's representative and the Veteran then proceeded to address symptoms of the ring finger of the right hand and not the third finger. The parties found that the undersigned had failed to correct this error on the part of the Veteran and representative at the hearing, and thereby failed to satisfy requirements of 38 C.F.R. § 3.103(d)(2). The Board notes that the Joint Motion has to a significant extent mischaracterized the nature of the testimony provided at the hearing. The representative began asking questions to the Veteran about "the finger on your hand" which was injured in service (hearing transcript, pg. 11), without specifying a particular finger, and the Veteran duly provided testimony addressing an unspecified injured finger. Hence, this testimony may reasonably have been addressing the third finger. It was not until later in the hearing that the representative twice mentioned "the ring finger" rather than the third finger (hearing transcript, pg. 13). The Board must legitimately question whether the duty of the VLJ at the hearing to fully explain the issues and suggest the submission of evidence that may be overlooked, pursuant to 38 C.F.R. § 3.103(d)(2) extends to correcting every misstatement by the Veteran's representative, as the duty of the representative to state facts and issues correctly may reasonably be viewed as the duty of that party and not the duty of the VLJ. 38 U.S.C.§ 5107 (a); see Cromer v. Nicholson, 455 F.3d 1346, 1350 (Fed. Cir. 2006) ("[T]he general evidentiary burden in veterans' benefit cases . . . requires that 'a claimant has the responsibility to present and support a claim for [VA] benefits.'); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the duty to assist is not a one-way street). In its April 2020 decision, the Board did not address or even mention the two mentions of the ring finger by the Veteran's representative at the hearing, but rather accepted the Veteran's testimony as addressing whatever finger was the subject of injury in service, which was how questioning about the finger was introduced in the hearing (hearing transcript, pg. 11). The Board then denied the finger claim based on the findings at the September 2016 VA examination including based on the Veteran's statements at that examination. Specifically, the Veteran had reported at the examination that he had injured the third and fourth fingers in service, including a cut over his fourth finger, and that he had no difficulties with his third finger but rather difficulties with his fourth finger. The Board notes, parenthetically, that this self-report of symptoms at the examination is entirely consistent with the Veteran's testimony at the hearing as characterized by the representative at the hearing as addressing the ring finger (which is the fourth finger). The Board denied the claim including based on the Veteran's statement at the examination that he had no difficulties with the third finger, since the claim was for service connection for a disability of the third finger. In contrast, as the Board also noted in the decision, the Veteran's representative in a November 2016 VA Form 9 erroneously contended that the VA examiner had never addressed the Veteran's loss of feeling in the right third finger. In the April 2020 decision, the Board specifically addressed the Veteran's representative's contention and found that, to the contrary, the September 2016 examiner noted that the Veteran reported that he had no problem with the third finger. There was, thus, no failure of the examiner to address numbness in the third finger, but rather the Veteran denied the presence of numbness or any other symptoms in that finger. These facts contrary to the assertions of the Joint Motion notwithstanding, the Board is bound to follow the Joint Motion. The parities to the Joint Motion found that at the hearing the undersigned failed to suggest that the Veteran may submit evidence that may be material to substantiating his claim for service connection for disability of the third finger of the right hand. The Joint Motion accordingly requires that the Board offer the opportunity of a new hearing to ensure compliance with 38 C.F.R. § 3.103(c)(2). This has been accomplished by a letter sent to the Veteran and his representative in October 2021. A reply signed by the Veteran's authorized representative in November 2021 informs that the Veteran declines the offer of a new hearing, and hence that development is resolved. 3. The claim for service connection for a right ankle condition, including as secondary to service-connected right foot disability, is remanded. The Joint motion also found that the Board's reasons and bases were inadequate for failing to consider a note from the Veteran's physician in VA treatment records from April 2012 which stated, "Please call [appellant] and advise he has severe arthritis and an old non healed [fracture] in his ankle bone." The Joint Motion noted that the Board had found that the weight of competent and credible evidence was against the presence of a right ankle disability at any time during the claim period. The Board notes that an April 2012 VA treatment record additionally informs x-rays revealed avascular necrosis of the right foot navicular bone. In its April 2020 decision, the Board carefully addressed the findings upon December 2013 VA examination that the Veteran was assessed not to have a disability of the right ankle but rather residuals of the right foot navicular bone fracture resulting in collapse of the natural arch of the foot. The Board also noted an October 2016 addendum to the examination which clarified that there was no clinical evidence of a right ankle condition, with the limitation of motion of the ankle being due to the right foot disability. The Board observed that the examiner noted that the navicular exhibited "severe arthritis on x[-]ray." The examiner had noted the severity of the right foot disability, and the Board also noted this and duly referred a claim for increase for the service-connected right foot disability based on the examiner's findings. Thus, as is apparent by the evidence the Board reviewed in its April 2020 decision, the April 2012 statement by a physician as recorded in treatment notes asking that the Veteran be advised of severe arthritis and an old non-healed fracture with arthritis was in reference to the navicular fracture, for which the Veteran is already service connected as right foot disability, not a fracture of the actual talus, or ankle bone. However, since the Joint Motion has failed to recognize this careful review by the December 2013 VA examination, the October 2016 VA examination addendum, and the Board and its clear (or so the Board had thought) discussion of implications for right foot and ankle disability; and since the Joint Motion is requiring that the Board discuss the circumstances of the right ankle as indicated in the above-noted April 2012 treating VA physician's note - more clearly than the Board already did in its April 2020 decision upon adjudication of the claim; and since the Board is not permitted to base decisions on its own unsubstantiated medical conclusions (see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)), the Board must now remand for an addendum to consider this statement by a VA physician in April 2012 with due consideration of other VA treatment records, x-rays, and VA examination findings, as to whether the "ankle bone" and "arthritis" referenced in the April 2012 note was a disability of the ankle, or as the Board believed was clear from the record and as the Board discussed in the now vacated Board decision, whether the referenced condition was the Veteran's documented fracture of the navicular with severe arthritis and associated right foot disability for which the Veteran is already service connected. The Joint Motion also informed that consideration was to be given to entitlement to service connection for the claimed right ankle disability as secondary to service-connected foot disability. The Board has accordingly recharacterized the claim as listed hereinabove. The matters are REMANDED for the following actions: 1. With the Veteran's authorization and assistance, as appropriate, obtain any as yet unobtained VA and pertinent private treatment records. Requests and responses and records received must be documented in the claims file. Inform the Veteran and his representative of any records that cannot be obtained. 3. Obtain any unobtained medical records from the Muskegon Veterans Outpatient Clinic, including specifically for the interval from January 2000 through 2012. Requests and responses and records received must be documented in the claims file. 4. Return the claims file to the examiner who conducted the December 2013 examination and who provided the October 2016 examination addendum addressing the right foot and ankle, for a further addendum. Inform the examiner that this addendum is required by a Joint Motion for Remand as approved by the United States Court of Appeals for Veterans Claims, finding that an April 2012 note by a VA treating physician stating "Please call [appellant] and advise he has severe arthritis and an old non healed [fracture] in his ankle bone" had not been adequately addressed. The examiner is to carefully review the claims file including past examination and addendum, and to address whether this note by a physician in April 2012 references an actual fracture of the right ankle or, as appears to have been indicated by past VA examination, a fracture of the navicular. If the examiner cannot provide the requested addendum, this should be obtained by another qualified clinician. A complete explanation, supported by evidence and medical knowledge, should be provided for any opinion expressed. 5. Following this development, the appealed claims the subject of this remand should be readjudicated. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.