Citation Nr: 1761165
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-00 211 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected status post fusion right ankle with hammer toe, cavus deformity, right calf atrophy, and shortening of the right leg.

2. Entitlement to service connection for basal cell carcinoma.

3. Entitlement to compensable evaluation for residuals of a left hand fracture.

4. Entitlement to compensable evaluation for hypertension.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

G.C., Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1975 to March 1996.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 1996 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In February 2015, the Board remanded the Veteran’s claim for further development, to include VA examinations. The requested development was not completed.

The Board is aware of the Veteran’s other issues on appeal, including the claim of entitlement to an evaluation in excess of 10 percent for residuals of right elbow compression with a history of ulnar neuropathy and carpal tunnel syndrome and entitlement to an initial evaluation in excess of 40 percent for status post fusion right ankle with hammer toe, cavus deformity, right calf atrophy, and shortening of the right leg. However, those issues are not yet properly before the Board as further development, to include affording the Veteran his requested hearing, is pending.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).

REMAND

The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that a remand is again warranted under Stegall.

In February 2015, the Board remanded this claim and directed that the Veteran undergo VA examinations for the purpose of determining the nature and etiology of his claimed disabilities.

Specifically, the Board instructed that the Veteran be afforded VA examinations for his claims of entitlement to service connection for a right knee disability, to include as secondary to the service-connected status post fusion right ankle with hammer toe, cavus deformity, right calf atrophy, and shortening of the right leg; entitlement to service connection for basal cell carcinoma; entitlement to a compensable evaluation for residuals of a left hand fracture; and entitlement to a compensable evaluation for hypertension.

The Board further instructed that the Veteran be afforded an opportunity to submit copies of medical records referenced in his December 2009 substantive appeal, including records from Eglin Air Force Base, the VA hospital in Pensacola, the VA Eglin Community Based Outpatient Clinic, and Dr. H. W.

The Board notes that records from Eglin Air Force Base, a family medicine clinic in Eglin, and Dr. H.W. were associated with the claims file after the February 2015 Board remand.

However, none of the requested VA examinations were completed, and there is no evidence that they were scheduled at all. In fact, of record is a statement from the Veteran in July 2017, wherein he reports having heard “absolutely nothing about the appeal or been scheduled for follow up medical appointments.” Prior to the aforementioned statement, the Veteran wrote another letter to VA in January 2017 indicating that since the February 2015 Board remand, he had heard nothing about the status of his appeal and had not been scheduled for a medical appointment. Indeed, the Veteran also conveyed his willingness to cooperate, stating “just give me a heads up and I will be right there.”

As the RO failed to schedule the Veteran for the requested VA examinations, the Board finds that there was not substantial compliance with the Board’s remand directives. Stegall, 11 Vet. App at 271.

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran’s recent VA treatment records from the Gulf Coast Veterans Health Care System, to include the Eglin CBOC, the Joint Ambulatory Care Center, and any other associated outpatient clinics, from May 2010 to the present, and from Elgin AFB (Tricare/non-VA) from December 2010 to the present, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents.

2. Contact the Veteran and request that he identify all providers (VA and non-VA) of medical treatment for the disabilities at issue, obtain the necessary authorization from the Veteran, and then attempt to obtain all identified records (not already of record), to include records of treatment from Dr. H. W., and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents.

3. Thereafter, schedule the Veteran for VA examinations to determine the nature and etiology of his basal cell carcinoma and any diagnosed right knee disability. All necessary tests and studies should be conducted. The entire claims file should be made available for review in conjunction with the examinations.

Basal Cell Carcinoma-The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed basal cell carcinoma was present in service, was caused by service, is otherwise related to service.

The VA examiner must give consideration to the Veteran’s theory that his basal cell carcinoma is related to 18 years on the flight line with exposure to the sun in the tropics and the hazards of chemicals such as jet fuel hydraulic fluid and synthetic oils.

Right Knee-The examiner must diagnose all right knee disorders found to be present. For each such disorder, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder was present in service, was caused by service, or is otherwise related to service.

The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that any right knee disability was caused by the Veteran’s service-connected status post fusion right ankle with hammer toe, cavus deformity, right calf atrophy, and shortening of the right leg.

The examiner must further provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that any right knee disability was aggravated by the Veteran’s service-connected status post fusion right ankle with hammer toe, cavus deformity, right calf atrophy, and shortening of the right leg.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease.

A complete rationale for all opinions expressed must be provided.

4. Schedule the Veteran for VA examinations to determine the current severity of his service-connected disabilities of hypertension and residuals of a left hand fracture. The claims folder must be provided to the examiner(s) in conjunction with the examinations. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished.

With regard to hypertension, all pertinent pathology [including blood pressure reading(s)] must be noted in the examination report.

With regard to the left hand disability, range of motion testing should be accomplished and reported for the left hand in active motion, passive motion, weight-bearing, and nonweight-bearing. Range of motion testing should also be conducted for the opposite, non-injured, joint, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should report functional impairment due to incoordination, weakened movement, excess fatigability, pain or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is competent to report limitation during flare-ups. All neurological manifestations should also be included in the examination report.

5. The Veteran must be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017).

6. Finally, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

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

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

______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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).

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