Citation Nr: 21026294 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-18 509 DATE: April 30, 2021 REMANDED Entitlement to service connection for right jaw nerve problem is remanded. Entitlement to service connection for right eye condition, to include vision loss, primary open-angle glaucoma, and hyperopia, is remanded. Entitlement to service connection for left knee joint osteoarthritis, to include degenerative arthritis and left knee medial collateral ligament strain (left knee condition), is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from December 1952 to December 1954. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in June 2020. A transcript of the hearing is of record. Subsequently, in an August 2020 decision, the Board remanded the claims for further development. 1. All remanded claims In the August 2020 Board remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain any VA treatment records. The AOJ added “CAPRI” records to the file January 8, 2021; however, the CAPRI records are duplicates of VA examination reports from July 2016 that were previously in the file. In a March 2021 informal hearing presentation, the Veteran’s representative contended that there may still be relevant VA records given that the Veteran has repeatedly reported that he has received treatment with VA. See Appellant’s Post-Remand Brief, dated March 16, 2021, page 8. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. Thus, a remand is required to allow VA to obtain any VA treatment records to ensure substantial compliance with the August 2020 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). If VA is unable to attain any VA treatment records, VA must notify the Veteran of any records that VA is unable to obtain and provide an explanation of the efforts made to obtain the records. See 38 C.F.R. § 3.159(e). In addition, in the March 2021 informal hearing presentation, the Veteran’s representative contended that additional private treatment records have not been obtained since the August 2020 Board remand. The Board notes that the representative did not identify any specific sources for the private treatment. However, a review of the record illustrates that there may be outstanding records of private treatment from Mississippi Vision that were identified in the August 2020 Board remand and are relevant to the Veteran’s right eye condition claim. Regarding the Veteran’s claim for an increased rating for PTSD, a February 3, 2021 medical record from Jackson-Hinds Comprehensive Health Center reflects that the Veteran was going to be evaluated by a social worker at the facility. However, there are no additional records from Jackson-Hinds Comprehensive Health Center since the February 3, 2021 record. Therefore, the Veteran should be given the opportunity upon remand to complete a VA Form 21-4142, Authorization for Release of Information, for any relevant private records. 2. Entitlement to service connection for right jaw nerve problem is remanded. In addition to the need for a remand of this claim for potential VA records as noted above, a remand is required to obtain an additional VA examination and opinion as to the nature and etiology of any jaw disability. The Board notes that the Veteran attended two VA examinations in December 2020 and that both examiners provided medical opinions. However, the VA examinations and opinions are inadequate for evaluation purposes as it is unclear whether the Veteran has a current jaw disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability); see also Wait v. Wilkie, 33 Vet. App. 8 (2020) (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). Therefore, as it is unclear from the record whether the Veteran has a jaw disability, a remand for a VA examination is necessary. 3. Entitlement to service connection for a left knee condition is remanded. In March 2021 written argument, the Veteran’s representative alleged that the Veteran’s complaints regarding his service-connected PTSD are consistent with him thrashing and fighting in his sleep and rolling out of bed as a result. He reported having these symptoms at the June 2020 hearing and in a February 2021 private treatment record. He has indicated that he now sleeps on the floor because of these symptoms. The Veteran’s representative alleged that the knee scarring noted on the August 2016 examination may be consistent with these types of repeated injuries from falling out of bed, and thus raised questions about whether the Veteran’s left knee disability is caused or aggravated by his service-connected PTSD. Therefore, the Board finds that remand for an additional opinion is needed.   The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record all VA treatment records. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, including Mississippi Vision, identified at the June 2020 Board hearing, and any relevant treatment from Jackson-Hinds Comprehensive Health Center, identified in the February 2021 treatment record from Jackson-Hinds Comprehensive Health Center, obtain all records of the Veteran’s treatment for the issues being remanded herein. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any jaw condition. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of any jaw condition or any symptoms that cause functional impairment of earning capacity? The examiner is asked to specifically address the Veteran’s testimony at his June 2020 Board hearing that he has jaw pain and his “teeth and things” are shaking. (b.) For any diagnosed jaw condition or any functional impairment from jaw symptoms, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service, to include exposure to cold weather and exposure to debris from missile explosions while stationed in Korea? (c.) For any diagnosed jaw condition or any functional impairment from jaw symptoms, is it at least as likely as not (50 percent or greater probability) that such is caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by symptoms of service-connected PTSD? The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in items 1 and 2, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any left knee condition. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) For any left knee condition, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service, to include injuries experienced during combat service therein? (b.) For any left knee condition, is it at least as likely as not (50 percent or greater probability) that such is caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by symptoms of service-connected PTSD? The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.