Citation Nr: 21009937 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-03 448 DATE: February 23, 2021 REMANDED Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a soft-tissue lipoma, right lateral chest, is remanded. From October 22, 2007 to January 29, 2012, entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. From January 30, 2012 to December 27, 2019, entitlement to a rating greater than 50 percent for PTSD is remanded. From December 28, 2019, entitlement to a rating greater than 70 percent for PTSD is remanded. REASONS FOR REMAND The Veteran had active service from May 1976 to November 1976, and from August 2004 to October 2006, with additional service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of March 2011 (PTSD) and April 2014 (left wrist and soft-tissue lipoma) of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). As an administrative matter, the Board highlights that, in February 2019, it remanded, as relevant here, the issue of entitlement to a total disability based upon individual unemployability for additional development. The Veteran withdrew his appeal of this issue in January 2020. The Board did not expressly address this in June 2020, but the AOJ acknowledged and accepted the withdrawal in September 2020. Therefore, it is no longer on appeal. Remand is warranted for three reasons. Representative In October 2007, the Veteran submitted a VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative." In it, he appointed the New York State Division of Veterans Affairs to represent him. Copies of this VA Form 21-22 appear multiple times in the claims file, and the Veteran most recently submitted a copy in February 2014. In December 2015, the Veteran submitted a VA Form 21-22a, "Appointment of Individual as Claimant’s Representative." In it, he appointed Valarie DePena-Banks to represent him pursuant to 38 C.F.R. § 14.630. Because this is the last representation form in the claims file, the Board recognizes Valarie DePena-Banks as the Veteran's current representative. Given the foregoing, the Board acknowledges that VA has not updated the Veteran’s claims file to recognize this change. Therefore, VA has not copied Valarie DePena-Banks on communications from the agency including, but not limited to, the Supplemental Statement of the Case that the AOJ issued in October 2020. The Board has corrected the Veteran's claims file during its current review. Consequently, remand is warranted for the AOJ to readjudicate these matters and issue a new Supplemental Statement of the Case. Lipoma The Veteran claimed service connection for a soft-tissue lipoma, right lateral chest, in March 2013. VA, in turn, examined him for this claim in September 2013. The examiner, while detailing the lipoma, did not opine on medical nexus. The AOJ, in turn, found the following in an October 2013 rating decision: Review of recent VA hernia and skin examinations shows that you reported being diagnosed with a lipoma in 2012 and that you had not undergone surgical correction. Following exam, VA examiner confirmed a diagnosis of a lipoma, but provided no medical evidence or opinion that would link this condition to your active military service, or to any service-connected disability. Based on the current evidence which shows the first evidence of this condition in November 2011, more than 5 years following discharge from active military service, service connection for soft tissue lipoma of the right lateral chest is denied since this condition neither occurred in nor was caused by service. The AOJ, despite the examiner's omission, ruled that no medical nexus existed in the October 2013 rating decision. The AOJ reaffirmed its finding, by implication, when it denied the claim again in an April 2014 rating decision. The April 2014 rating decision is the rating decision on appeal, but the Board must consider the reasoning explained in the October 2013 rating decision. The Board finds the AOJ erred, as it should have obtained an opinion before deciding the issue. Therefore, remand is warranted for the AOJ to obtain such an opinion. Left Wrist The Veteran claimed service connection for left wrist disability in May 2012. VA did not examine the Veteran for this claim. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the appellant's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McClendon, 20 Vet. App. 79. The AOJ, in an October 2013 rating decision, found: Review of your VA treatment records shows evaluation for bilateral wrist pain in December 2011 and again in May 2012, assessed as likely traumatic arthritis, shown as likely related to your job as a chef. These records do not provide medical evidence or opinion that would link this condition to your active military service. Based on the current evidence which shows the first evidence of this condition in December 2011, more than 5 years following discharge from active military service, with the evidence clearly linking this condition to your work as a chef, service connection for a left wrist condition is denied since this condition neither occurred in nor was caused by service. The AOJ reaffirmed its finding, by implication, when it denied the claim again in an April 2014 rating decision. The April 2014 rating decision is the rating decision on appeal, but the Board must consider the reasoning explained in the October 2013 rating decision. The May 2012 VA treatment record focuses primarily on "right hand swelling/pain," but also says the Veteran "c/o L wrist pain." Moreover, it says that "past traumatic arthritis … is exacerbated by job as a chef." First, exacerbation and causation are different. Second, the record contains conflicting information as to whether the Veteran has ever worked as a chef. Third, the Veteran has contended that he has had pain since service, as noted in his April 2015 Notice of Disagreement and April 2017 VA Form 9. Based on the foregoing, the Board finds the AOJ erred because it should have examined the Veteran before deciding the claim. Therefore, remand is warranted for the AOJ to obtain such an opinion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain a medical nexus opinion from the medical professional who examined the Veteran for his lipoma claim in September 2013 or a similarly qualified medical professional. This individual should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's soft-tissue lipoma, right lateral chest, began during, or was otherwise caused by, military service? Why or why not? 3. Schedule the Veteran for an examination to determine the nature and etiology of his left wrist disability. The examiner should review this Remand, and opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's left wrist disability began during, or was otherwise caused by, military service? Why or why not? 4. Readjudicate the matters on appeal, to include consideration of evidence received since the October 2020 Supplemental Statement of the Case. Ensure that the Veteran's representative, Valarie A. DePena-Banks, is copied on any correspondence or decision from the AOJ. As a reminder, the New York State Division of Veterans Affairs is no longer the Veteran's representative. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.