Citation Nr: 21008133 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-08 316 DATE: February 11, 2021 REMANDED Entitlement to service connection for thoracolumbar-spine disorder Entitlement to service connection for right-knee disorder. Entitlement to service connection for right-hand/thumb disorder. Entitlement to service connection for left-hand/thumb disorder. Entitlement to service connection for right-forearm disorder. Entitlement to service connection for migraine headaches. REASONS FOR REMAND The Veteran had active service in the United States Navy from May 1997 to September 2005. In March 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for thoracolumbar-spine disorder 2. Entitlement to service connection for right-knee disorder. 3. Entitlement to service connection for right-hand/thumb disorder. 4. Entitlement to service connection for left-hand/thumb disorder. 5. Entitlement to service connection for right-forearm disorder. 6. Entitlement to service connection for migraine headaches. In its May 2019 decision, the Board dismissed the claim for right-forearm disorder and denied the other claims. Upon appeal to the United States Court of Appeals for Veterans Claims (the Court), in September 2020, the Court vacated those decisions and remanded the claims to the Board for action consistent with the Joint Motion for Remand (JMR), agreed to by the parties. The JMR states that the Board had not provided an adequate statement of reasons or bases for dismissing the claim for service connection for right-forearm disorder. Although the Veteran had responded affirmatively at the March 2019 Board hearing to the question by his representative of whether he was comfortable withdrawing his appeal of the forearm claim and the Board subsequently found in its May 2019 decision the Veteran had unequivocally withdrawn his appeal, the parties to the JMR agree the Board did not discuss whether it was explicit, unambiguous, and done with a full understanding of the consequences and therefore, on remand, the Board must discuss whether the Veteran appropriately withdrew his appeal at the hearing and whether any further development is required. The parties further agree the Board also erred when it provided an inadequate statement of reasons or bases for its denial of service connection for the Veteran’s thoracolumbar spine, right knee, left and right-hand/thumb, and migraine headache disorders. Additionally, the record shows the Veteran stated at the March 2019 Board hearing he was seen by a chiropractor for his back disorder and the Board therefore must address whether remand is warranted to attempt to obtain those records. Finally, it was noted that the Veteran had failed, without submitting good cause, to report for a scheduled examination. As such it was indicated a decision would be based on the evidence of record. It has been essentially asserted that he should have another opportunity for examination, or be told he could submit lay or other statements/evidence in support of his claim. That opportunity will be presented herein. In order to afford the Veteran the broadest opportunity to pursue his claims and attain the maximum benefits allowed under VA regulations, the Board remands each claim, to include the claim for service connection for right-forearm disorder. Although this Remand will serve as notice to the Veteran that he can adduce additional evidence to his appeal, as discussed above, the AOJ will so inform him and his representative of his specific choices in a notification letter. Authorization and release forms with instructions will be sent to the Veteran in order that chiropractic treatment records can be obtained by VA. For the reasons stated, the claims are remanded. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for thoracolumbar-spine disorder, right-knee disorder, right-hand/thumb disorder, left-hand/thumb disorder, right-forearm disorder, and migraine headaches at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Simultaneous to the above directives, send the Veteran the appropriate authorization and release forms, with any necessary instructions for completing them and returning them to the AOJ, for outstanding chiropractic treatment records for the Veteran’s thoracolumbar-spine disorder. When the forms are returned by the Veteran, the AOJ should then make the appropriate efforts to obtain those records and document such efforts in the file. 3. Simultaneous to the above directives, the AOJ is requested to send the Veteran a notification letter, which explains fully the consequences of a withdrawal of a claim, should he choose to do so. 4. Simultaneous to the above directives, send the Veteran a notification letter, which (1) explains fully the consequences of having not reported to his scheduled VA examinations in October 2015 without stating good cause, to include what evidence of record would then be considered. (Should he now submit good cause for failing to report, or indicate a willingness to report for pertinent examinations, they should be scheduled in accordance with applicable procedures. (2) In light of the current failure to report for VA examinations without stating good cause, inform the Veteran of what additional evidence in support of the claims now on appeal he might submit, should he choose to do so, such as lay evidence from other persons, private medical examination reports, private medical opinions, and any other evidence he may have. Copies of each letter should be sent to the Veteran’s representative. 5. Only after (1) associating with the file all records which are to be obtained and after (2) confirming with the Veteran that he has submitted all additional evidence he wishes to be considered and (3) after any other indicated development, the AOJ should readjudicate the claims. If the benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.