Citation Nr: 21009827 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-06 720A DATE: February 23, 2021 REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle sprain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1977 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2018 and April 2019, when the Board remanded the issues for further development, to include providing a supplemental medical opinion for IBS and scheduling the Veteran for VA examinations. This matter was again before the Board in November 2019, when the Board remanded the issues for further development. Specifically, the Board remanded the issues to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. At that time, the prior remand directives had not been complied with as the Veteran had been incarcerated until March 2019, and the alternate means set forth in Bolton v. Brown, 8 Vet. App. 185 (1995) had not been utilized to secure the Veteran’s attendance at the VA examinations. In the November 2019 remand, the Board remanded the issues so that the Veteran could be scheduled for VA examinations for his IBS and left ankle. Another remand is necessary as additional development is necessary prior to adjudicating the appellant’s claims. While the Veteran was scheduled for a VA examination pursuant to the November 2019 remand directives, a decision cannot be made in this case as there are no adequate VA examinations of record. There was not substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. In August 2018, the Board found that the November 2012 VA examiner’s opinion concerning the Veteran’s claim for service-connected IBS was limited to the theory of secondary service connection associated with a left inguinal hernia repair and, on remand, the next examination was also to consider whether the disorder manifested during, or was otherwise related to, his active duty service. The examiner was directed to consider the Veteran’s assertions that he had continuous symptoms since service. While another VA examination was scheduled in December 2018 as to the Veteran’s IBS claim, the Veteran was reportedly not able to be reached for scheduling purposes and, therefore, did not participate. Upon reviewing the evidence, the examiner found that there was no objective evidence that the Veteran’s IBS manifested during service or is otherwise related to service. According to the Board’s April 2019 remand, the VA examiner failed to take into consideration the Veteran’s credible lay statements when forming her opinion, contrary to the Board’s previous remand directives. Thus, the matter was again remanded for a VA examination in compliance with the Board’s remand directives. The Board remanded this issue again in November 2019 because there was no indication from a review of the claims folder that the RO undertook any efforts to arrange for an in-person examination. At the time of the November 2019 remand, there was no evidence that the Veteran was notified of a VA examination scheduled for September 2019. A notation in the claims file merely indicated that the Veteran failed to report to the examination, and that the examination was cancelled. In November 2019, the Board directed that the Veteran be afforded an examination on the issue of service connection for his IBS. The Veteran spoke with the C&P clerk in July 2020, and the Veteran was scheduled for a C&P Examination for both his IBS and left ankle conditions on August 5, 2020, and the Veteran was mailed an appointment letter confirming the appointment. On August 5, 2020, the Veteran contacted the C&P clerk to cancel the appointment due to illness. The appointment was rescheduled for August 31, 2020. The Veteran was subsequently mailed an appointment letter detailing the appointment. On the day of August 31, 2020, three calls were placed to the Veteran, and he was unable to be reached. The Veteran did not attend the August 31, 2020 VA examination. 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. See 38 C.F.R. § 3.655. Individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Accordingly, the matter must be decided based upon the evidence of record. On August 31, 2020, the VA examiner completed a medical opinion form. However, because the Veteran was not present, the examiner did not offer an opinion due to a lack of examination. The examiner stated, “[p]lease note, records below reference a colonoscopy. This report is not of record and is needed for the IBS claim.” As discussed above, the Veteran’s prior VA examinations have been deemed inadequate. Therefore, because there are no adequate examinations regarding this issue in the claims file, a remand is necessary. The AOJ should also associate the colonoscopy report described by the August 2020 examiner with the claims file. 2. Entitlement to an initial rating in excess of 10 percent for left ankle sprain is remanded. In its August 2018 remand, the Board found that the November 2012 VA examination on the Veteran’s left ankle condition inadequate because the VA examiner did not test for pain in passive motion or on weight bearing during range of motion (ROM) testing. While the Board directed that the Veteran be scheduled for a new VA examination in its August 2018 remand, in April 2019, the Board found that the RO did not take any action to schedule a VA examination for the Veteran, who was incarcerated at the time. Therefore, at the time of the April 2019 remand, the most recent VA examination the Veteran had on his left ankle was the one from November 2012. In the April 2019 remand, the Board also found that the November 2012 examination was inadequate because it did not comply with Correia v. McDonald because there was no indication in this examination whether ROM obtained at that examination was active or passive or in weight-bearing or non-weight bearing. See 28 Vet. App. 158 (2016). Further, in April 2019, the Board found that the November 2012 VA examination did not contain an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Again, the November 2012 VA examination was deemed inadequate and a new VA examination was warranted. Additionally, in its November 2019 remand, the Board found that the RO failed to comply with the prior remand orders directing that the alternative means set forth in Bolton be utilized to secure the Veteran’s attendance at a VA examination. See 8 Vet. App. 185. Therefore, the Board remanded this issue so that the Veteran could be afforded a VA examination. As noted above, the Veteran was scheduled for a VA examination for both his IBS and left ankle condition claims on August 31, 2020. The Veteran did not attend this examination, and despite multiple attempts to contact him, the C&P clerk could not get ahold of the Veteran to reschedule the appointment. As stated above, 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. See 38 C.F.R. § 3.655. Individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris 1 Vet. App. at 264. Accordingly, the matter must be decided based upon the evidence of record. On August 31, 2020, the VA examiner completed a medical opinion. However, because the Veteran was not present, the examiner did not offer an opinion due to a lack of examination. As discussed above, the November 2012 VA examination on the Veteran’s left ankle condition has been deemed inadequate. Therefore, because there are no adequate examinations regarding this issue in the claims file, a remand is necessary. The matters are REMANDED for the following action: 1. Associate with the claims file the colonoscopy report referenced by the August 2020 examiner. If this report is not available, this must be documented. 2. Schedule the Veteran for an examination for his IBS. The entire claims file and a copy of this remand must be made available to the examiner for review. Based upon a review of the Veteran’s pertinent history, including all lay statements which should be considered credible, the examiner should provide opinions as to the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s IBS had its onset in service or is otherwise related to service. In providing an opinion, the examiner should address the Veteran’s assertion that he had experienced problems with diarrhea, abdominal cramping, and constipation since service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s assertion of continuity of symptoms is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. b. Whether it is at least as likely as not that the Veteran’s IBS was proximately due to or the result of his service-connected left inguinal hernia repair. c. Whether it is at least as likely as not that his IBS was aggravated beyond its natural progression by his service-connected left inguinal hernia repair. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records 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. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of his left ankle disability. The entire claims file and a copy of this remand must be made available to the examiner for review. Specifically, the Veteran’s left ankle should be tested for pain in both weight-bearing and non-weight bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups or explain why it is not feasible to render such an opinion. 4. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).   5. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.