Citation Nr: 21026101 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-03 630 DATE: April 29, 2021 REMANDED The issue of entitlement to service connection for pleomorphic adenomas, parotid hematomas (claimed as tumors on left side of neck) is remanded. The issue of entitlement to a rating in excess of 20 percent for lumbar strain is remanded. The issue of entitlement to a rating in excess of 10 percent for shin splints in the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to June 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2019. The case has been returned to the Board for review. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s shin splints, left lower extremity to 10 percent, effective November 10, 2011. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in January 2019. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the January 2019 Board hearing is no longer employed by the Board. In March 2021, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the January 2019 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. In April 2019, the Board denied entitlement to service connection for pleomorphic adenomas, parotid hematomas (claimed as tumors on left side of neck). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an October 2020 Joint Motion for Remand (JMR), vacated the April 2019 Board decision and remanded the issue to the Board for readjudication. 1. Entitlement to service connection for pleomorphic adenomas, parotid hematomas, is remanded. In an April 2019 decision, the Board denied entitlement to service connection for pleomorphic adenomas, parotid hematomas. The parties to the October 2020 JMR agreed that vacatur and remand were warranted because the Board failed to obtain private treatment records related to the Veteran’s claim. Specifically, during the January 2019 Board hearing the Veteran testified that he received private treatment from Dr. K. in Midland, Michigan. However, VA failed to attempt to obtain the private treatment records. The parties further agreed that vacatur and remand was warranted because the Board relied on an inadequate medical examination. Specifically, a June 2013 VA Gulf War General Medical Examination was inadequate since the VA examiner did not provide an adequate discussion of the pathophysiology of the Veteran’s pleomorphic adenomas. As such, the parties agreed that the Veteran must be provided an adequate VA examination related to his pleomorphic adenomas, parotid hematomas. 2. Entitlement to a rating in excess of 20 percent for lumbar strain and entitlement to a rating in excess of 10 percent for shin splints in the left lower extremity are remanded. In its April 2019 remand, the Board directed the AOJ to provide the Veteran a VA examination to determine the current nature and severity of his service-connected lumbar strain and shin splints in the left lower extremity. The Board directed that the Veteran’s claim file must be reviewed in conjunction with the examination. The Veteran was provided a VA examination related to his back disability and shin splints in February 2020. However, the February 2020 VA examinations reflect that the VA examiner reviewed the record of a different Veteran. Accordingly, the February 2020 VA examination is inadequate for decision making purposes and does not substantially comply with the Board’s April 2019 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. The Board is specifically interested in records from Dr. K. in Midland, Michigan After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in her possession. 2. After the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s pleomorphic adenomas, parotid hematomas. If the examiner is unable to diagnose pleomorphic adenomas based on a review of the record and an examination of the Veteran, the examiner must state what information is required for such a diagnosis to be provided. Regardless of whether pleomorphic adenomas, parotid hematomas, is formally diagnosed, the clinician must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s pleomorphic adenomas, parotid hematomas, are related to an in-service injury, event, or disease. The clinician should also characterize the Veteran’s claimed pleomorphic adenomas, parotid hematomas as belonging to one of the following four disability patterns: (a.) An undiagnosed illness; (b.) A diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (c.) A diagnosable chronic multisymptom illness with partially explained etiology/pathophysiology; or (d.) A disease with a clear and specific etiology. All appropriate medical testing should be conducted to rule out a diagnosis. 3. After the first remand directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected low back disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected low back. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the low back. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s low back, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The 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 possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 4. After the first remand directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left leg shin splints. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected left leg shin splints. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the left leg. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s left leg, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The 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 possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for pleomorphic adenomas, parotid hematomas and increased ratings may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.