Citation Nr: 21011527 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-01 139 DATE: March 2, 2021 REMANDED Entitlement to service connection for a peripheral nerve condition of the right upper extremity is remanded. Entitlement to a rating in excess of 20 percent for limitation of flexion of the right forearm is remanded. Entitlement to a rating in excess of 30 percent for impairment of supination and/or pronation of the right forearm is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1974 to June 1976. These matters were previously before the Board in January 2020 at which time they were remanded for further evidentiary development. Although regretting the additional delay, the Board finds that remand is again needed to obtain substantial compliance with the prior remand requests. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a peripheral nerve condition of the right upper extremity is remanded. 2. Entitlement to a rating in excess of 20 percent for limitation of flexion of the right forearm is remanded. 3. Entitlement to a rating in excess of 30 percent for impairment of supination and/or pronation of the right forearm is remanded. 4. Entitlement to SMC at the housebound rate is remanded. The January 2020 remand determined that VA examinations were needed before decisions could be rendered on the Veteran’s increased ratings claims. Subsequently, he was scheduled for VA examinations in July 2020 to evaluate the severity of his service-connected right forearm disabilities and to provide a secondary service connection opinion regarding his right upper extremity peripheral nerve condition claim. The VA location cancelled the examinations, indicating that in-person examinations were not being conducted due to the COVID-19 pandemic. The examinations were rescheduled in October 2020. A note in the claims file indicated that they were cancelled due to Veteran concerns/risks associated with the COVID-19 pandemic. The examination requests were thereafter cancelled within the VA system. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established 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 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) holds that when a claimant fails to report for an examination scheduled in conjunction with a claim for original compensation, the claim shall be rated based on the evidence of record; when scheduled in conjunction with a claim for increase, the claim shall be denied. Here, it was established in the January 2020 remand that entitlement to the sought benefits could not be established without current VA examinations. Review of VA treatment records added to the claims file subsequently demonstrated that such examinations are still needed before entitlement to the appealed benefits may be established. Further, cancellation of the examinations was first done at the request of the VA location and later by the Veteran due to a widespread pandemic and safety concerns, and due to no fault of the Veteran. The Board finds that the COVID-19 pandemic represents good cause for the failure to report for the VA examinations. 38 C.F.R. § 3.655(a). Accordingly, the Board finds that remand is appropriate to obtain the previously requested development, which is reproduced below. The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s peripheral nerve condition. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. (a.) After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: (b.) Is it at least as likely as not that the Veteran’s peripheral nerve condition was CAUSED by his service-connected right forearm condition? (c.) Is it at least as likely as not that the Veteran’s peripheral nerve condition was AGGRAVATED by his service-connected right forearm condition? (d.) In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (e.) The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (f.) If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Schedule the Veteran for an examination of the current severity of his right forearm condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. (a.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any other indicated development, has been completed, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.