Citation Nr: 21008079 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-34 679 DATE: February 11, 2021 REMANDED Service connection for a back disorder, to include lower extremity symptoms, is remanded. An increased rating for osteoarthritis of the left knee, currently rated 10 percent, is remanded. REASONS FOR REMAND The Veteran served in the Army Reserve. He had active duty training from December 1973 to April 1974 and continued to serve in the Reserve through approximately 1997. In December 2015, the Board remanded the claims for additional development. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran raised the issue of the propriety of the reduction in evaluation of his left knee disability at the hearing. However, that issue is not properly before the Board. In a February 2009 rating decision, the Agency of Original Jurisdiction (AOJ) proposed to reduce the evaluation of his left knee disability from 40 percent to 10 percent. In March 2009, the Veteran attempted to file a notice of disagreement to that proposed reduction. In an April 2009 letter, the AOJ advised the Veteran that a proposed reduction is not appealable. In an April 2009 rating decision, the AOJ implemented the proposal and reduced the evaluation of the disability to 10 percent effective July 1, 2009. In a May 2009 letter, the Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. Thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. While the Veteran wrote to his Congressman, who forwarded the correspondence to the AOJ, a Congressman may not file a notice of disagreement on the Veteran’s behalf. Only the Veteran or his representative may file a notice of disagreement 38 C.F.R. § 20.302 (2009). In an August 2010 letter to the Board, the Veteran expressed disagreement with the reduction. However, that statement is after the one-year appeal period. In July 2011, well after the one-year appeal period, the Veteran filed a notice of disagreement to the reduction with the AOJ. In a July 2011 letter, the AOJ informed the Veteran that his July 2011 statement could not be accepted as a notice of disagreement as it was not timely. The AOJ notified him of his appellate rights, but he did not initiate an appeal of that determination. Thus, that decision is also final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. While the Board is sympathetic to the Veteran’s situation, the issue of the propriety of the reduction in evaluation of the left knee disability is not before the Board. Such was indicated by the Board in the December 2015 remand, which only included the issue of a rating greater than 10 percent. Service connection for a back disorder, to include lower extremity symptoms In December 2015, the Board remanded the claim to obtain any outstanding VA and private medical records, to include records of surgery in 1981, and to provide the Veteran with an examination and opinion. The Board also noted that Reserve records showed that the Veteran incurred a back injury and underwent a lumbar laminectomy in 1981, which was not during a period of qualifying service, but he was in a motor vehicle accident on January 17, 1986, when he was on active duty for training. The Board observed that treatment records showed complaints of pain from the neck down; mild back tenderness on examination; X-rays of the cervical spine and thoracic spine showing no fracture; and complaints of thoracic pain two days later. In a February 2016 letter, the AOJ asked the Veteran for the requested records and advised him that a VA medical center would be scheduling him for an examination. The Veteran did not reply to the letter. The record shows that the Veteran failed to report to the scheduled examination. In an August 2016 letter, the AOJ asked the Veteran to provide an updated telephone number for scheduling an examination. The Veteran did not reply. In an August 2016 supplemental statement of the case, the AOJ acknowledged the Veteran’s failure to reply to the February 2016 letter and to report to an examination. While the Board appreciates the AOJ’s efforts to further develop the claim, the Board finds that another attempt should be made. In this regard, the record shows that the Veteran relocated several times while the appeal was on remand and may not have received the above letters or telephone calls from the VA medical center regarding the examination. In January 2017, the Veteran’s representative provided a new address for the Veteran. In April 2017, the Veteran’s representative provided another new address for the Veteran. In a January 2020 letter, the AOJ used yet another new address for the Veteran. At the November 2020 hearing, the Veteran indicated that he did not receive notification of the scheduled examination, noting that he had been hospitalized around that time, and that he was willing to report to another examination. The Board observes that the notification of the scheduled examination is not of record. As the information from the requested examination is critical to the Veteran’s claim, and as he is willing to report to an examination, the AOJ should schedule him for another examination. The AOJ should also afford him another opportunity to identify the sought medical records. Increased rating for osteoarthritis of the left knee, currently rated 10 percent The Board also remanded this claim to obtain any outstanding VA and private medical records and to provide the Veteran with an examination. For the same reasons discussed above, the AOJ should schedule him for another examination and afford him another opportunity to identify the sought medical records. Accordingly, these matters are REMANDED for the following action: 1. Ask the Veteran to identify all healthcare providers who have treated him for his back disorder since his discharge from service, to include the back surgery in 1981, and his left knee disability since 2011. Ask the Veteran to submit an authorization form for each private provider. Obtain all adequately identified records, to include all VA treatment records. 2. Then, schedule the Veteran for an examination to determine the etiology of his back disorder with any lower extremity symptomatology. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should address the following: (a.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s preexisting back disorder (Army Reserve records show a back injury and lumbar laminectomy in 1981 which was not during a period of qualifying service) increased in severity during service, to include the period of active duty for training in January 1986 and any subsequent period of active duty for training or inactive duty training. (b.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any worsening was caused by the period of active duty for training, or any subsequent period of active duty for training or inactive duty training, or was due to the natural progress of the disease. (c.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current back disorder related to the motor vehicle accident on January 17, 1986, when he was on active duty for training. The examiner should discuss the contemporaneous treatment records showing complaints of pain from the neck down; mild back tenderness on examination; X rays of the cervical spine and thoracic spine showing no fracture; and complaints of thoracic pain two days later. (d.) Opine as to whether the Veteran has any bilateral lower extremity disability associated with his lumbar spine disorder. The examiner should discuss the Veteran’s service treatment records and VA and private medical records, to include any obtained on remand. The examiner should also discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 3. Also, provide the Veteran with an appropriate examination to determine the severity of his osteoarthritis of the left knee. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.