Citation Nr: 1761188
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-45 897 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1. Entitlement to service connection for a right wrist disability, to include as secondary to service-connected disabilities.

2. Entitlement to service connection for a bilateral lower extremity disability, to include as secondary to service-connected disabilities.

3. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected disabilities.

4. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected disabilities.

5. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected disabilities.

6. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities.

7. Entitlement to an initial rating in excess of 10 percent for residuals of a right calcaneus fracture.

REPRESENTATION

Appellant represented by: Oregon Department of Veterans’ Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel

INTRODUCTION

The Veteran had active service from March 2005 to August 2005, and from March 2006 to June 2007. The Veteran also served in the Army National Guard.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California; and March 2008, July 2008, and December 2010 rating decisions by the RO in Portland, Oregon.

REMAND

The closest VA medical facility to the Veteran is located in White City, Oregon, approximately 75 minutes from the Veteran’s residence. By contrast, the VA medical facilities in Portland, Oregon, are approximately five hours from the Veteran’s place of residence. In a February 2014 statement, the Veteran, who had requested a Travel Board hearing, indicated that he would prefer a videoconference hearing. The Veteran stated that, as the Travel Board hearings were conducted in Portland, he would find it extremely difficult to attend a hearing in Portland due to both transportation and financial constraints.

In November 2016, the Board remanded the Veteran’s claims for the scheduling of VA examinations. In the remand instructions, the Board specifically requested that that an orthopedist perform an examination of the Veteran’s bilateral lower extremity, bilateral ankle, bilateral foot, and right wrist disabilities. The Board did not specifically request that a specialist provide the examinations regarding the claimed IBS and headache disabilities.

In attempted compliance with the Board’s request, the AOJ contacted the VA medical facilities closest to the Veteran and found that the facilities did not have an orthopedist on staff. As the VA Medical Center in Portland was the closest facility with an orthopedist, the AOJ requested that the Portland VA Medical Center contact the Veteran and schedule the examination. In a June 2017 report of contact, an employee at the Portland VA medical facility reported talking to the Veteran about scheduling the examination before the call ended abruptly. The employee indicated that further attempts to contact the Veteran were futile. The AOJ subsequently issued a July 2017 supplemental statement of the case, denying the Veteran’s claims, in large part, due to his failure to attend the examinations requested in the Board’s November 2016 remand.

If a Veteran fails to attend an examination without showing good cause, VA normally will not reschedule the examination. In this instance, however, the Veteran has advised VA that it would be extremely difficult to attend any scheduled events in Portland. Therefore, the Board finds the Veteran had good cause for failing attend an examination at the Portland medical facility. As the AOJ asked that the examination be scheduled at that facility solely due to the Board’s request for an examination performed by an orthopedist, the Board amends the remand instructions to schedule an examination to be performed by a qualified medical doctor with experience treating orthopedic disabilities rather than an orthopedist.

In the November 2016 remand instructions, the Board did not make any notation suggesting that specialists perform the requested examinations to determine the etiologies of the claimed IBS and headache disabilities. Even though qualified examiners at any VA medical facility could have performed the examinations, the AOJ requested that they be performed at the VA medical facility in Portland. As noted above, the Veteran did not attend the examinations. A remand is necessary to schedule examinations to determine the etiologies of the claimed IBS and headache disabilities.

Remand is also required of the claim of entitlement to a higher initial rating for a right heel disability because that claim is inextricably intertwined with the other claims for service connection for other lower extremity, ankle, and foot disabilities.

Accordingly, the case is REMANDED for the following action:

1. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file.

2. Schedule the Veteran for an examination, with a qualified VA medical doctor examiner with experience treating orthopedic disabilities, of the claimed bilateral lower extremity, bilateral ankle, bilateral foot, and right wrist disabilities. For each claimed disability, the examiner should make a specific finding whether or not there is a diagnosable disability of the joint. The examiner’s attention is specifically directed to the Veteran’s VA medical records for the period directly following separation from active service in October 2007, January 2008, February 2008, and April 2010. The examiner is asked to reconcile those findings of diagnosable disabilities with the December 2015 examination findings of no diagnosable disabilities and the findings of the examination. If the examiner cannot reconcile the discrepancy, and a current diagnosis remains not warranted for any of the claimed disabilities, the examiner is asked to provide an opinion regarding the nature and etiology of any diagnosed disabilities of the lower extremities, ankles, feet, and right wrist, during the entire appeals period, and whether it is at least as likely as not (50 percent probability or greater) that disability, diagnosed during the pendency of the appeal, (1) is related to the Veteran service or any event, disease, or injury during service, (2) is due to or the result of service-connected disability, (3) has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disability, or (4) represents arthritis that manifested within one year following separation from service. The examiner must review the claims file and should note that review in the report. Any additional tests that the examiner deems necessary should be performed. The rationale for all opinions expressed should be provided.

3. Schedule the Veteran for a VA examination of IBS. The examiner must review the claims file and should note that review in the report. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that IBS was incurred in service or is due to any event, injury, or disease during service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that IBS is due to or the result of service-connected disability or treatment for a service-connected disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that IBS has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disabilities or treatment or medication for service-connected disabilities. The rationale for all opinions expressed should be provided.

4. Schedule the Veteran for a VA examination of a claimed headache disability. The examiner must review the claims file and should note that review in the report. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability was incurred in service or is due to any event, injury, or disease during service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability is due to or the result of service-connected disability or treatment for a service-connected disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disabilities or treatment or medication for service-connected disabilities. The rationale for all opinions expressed should be provided.

5. Then, readjudicate the claims, to include the Veteran’s claimed for an increased rating for his heel condition. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board.

The Veteran has the right to submit additional evidence and argument on the r matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s