Citation Nr: 21007621 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-41 191 DATE: February 10, 2021 REMAND Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to a compensable rating for service-connected right hip condition associated with service-connected right knee disability, status post anterior cruciate ligament reconstruction is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee disability, status post anterior cruciate ligament reconstruction is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability, status post anterior cruciate ligament reconstruction is remanded. REASONS FOR REMAND The Veteran attended the United States Air Force Academy from June 1995 to June 1999 and served on active duty from June 1999 to September 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a July 13, 2018, correspondence, Counsel notified VA that the Veteran changed address. In a November 2018 decision, the Board reopened the claims for entitlement to service connection for the left elbow and right ankle and remanded everything back to the RO so that VA could provide the Veteran with examinations for all conditions and obtain medical opinions as to the ankle and elbow claims. In a September 2019 decision, the Board denied all the claims, noting that the Veteran failed to appear for his scheduled examinations, adjudicating the claims based upon the evidence then of record. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Office of the General Counsel for VA (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). The Parties agreed that the Board erred by finding that no good cause existed for excusing the Veteran’s failure to appear for his previously scheduled examinations without determining whether VA’s failure to send to the Veteran’s correct address the examination notification constituted good cause. Specifically, the Parties stipulated to the Veteran’s current address. August 17, 2020, JMR at 2. Thus, the Board should have considered whether this oversight constituted good cause under 38 C.F.R. § 3.655, permitting the Veteran to be rescheduled for his examinations. Failure to do so, the Parties agree, is grounds for remand. In an August 24, 2020, Order, the Court adopted the Parties’ JMR. When entitlement or continued entitlement to a benefit cannot be established or confirmed 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 paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms “examination” and “reexamination” include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). 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. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. at (b). The regulation both enumerates reasons that constitute good cause but also contains a general, catch-all provision: “include, but are not limited to.” This provision gives the Board discretion in determining when good cause exists to otherwise excuse a Veteran’s failure to appear for an examination. In this case, the Board finds that equity requires exercising that discretion. Counsel did his due diligence by ensuring that VA was kept abreast of the Veteran’s residence and where to send all future correspondences. True enough, the Veteran has been represented by Counsel since the November 2018 Board decision and presumably has been copied on all correspondences to the Veteran. On the one hand, the Board could find that Counsel is presumed to have been made aware of the Veteran’s date for examination and find that such knowledge is imputed to the Veteran. On the other hand, this situation shows that VA is not infallible and that it can make mistakes. Here, there is concrete evidence that VA failed to update the Veteran’s address even after it was notified of such. Given that shortcoming, the Board is not prepared to find that Counsel was copied on the examination notification, especially when that notification is not contained within the claims file to otherwise verify any hypothetical finding. In light of the facts of this particular case, the Board finds that good cause exists for the Veteran’s failure to appear for his scheduled examinations and that remand is required so as to ensure substantial compliance with the November 2018 Board decision. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Scheduled the Veteran for an examination of his right ankle. The examiner shall answer the following: (a.) Does the Veteran have a right ankle disability? If no diagnosed disability exists, does the Veteran experience right ankle pain that causes functional impairment, resulting in a decrease of earning capacity? (b.) If either question in (a.) is yes, and for each diagnosis provided, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s right ankle disability occurred in, or is the result of, his period of active duty service? (c.) If any diagnosed disability is not related to service, is it at least as likely as not (a fifty percent probability or greater) that any other service-connected condition (i) proximately caused or (ii) aggravated beyond natural progression any diagnosed right ankle disability? 3. Scheduled the Veteran for an examination of his left elbow. The examiner shall answer the following: (a.) Does the Veteran have a left elbow disability? If no diagnosed disability exists, does the Veteran experience left elbow pain that causes functional impairment, resulting in a decrease of earning capacity? (b.) If either question in (a.) is yes, and for each diagnosis provided, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s left elbow disability occurred in, or is the result of, his period of active duty service? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Afford the Veteran the opportunity to attend an examination to assess the severity of his right hip and bilateral knee disabilities. 5. All communications regarding the scheduling of the Veteran’s examinations must be documented in the claims folder. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.