Citation Nr: 1010761 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 07-04 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a bilateral wrist and thumb disability. 3. Entitlement to service connection for a left ankle disability. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty for training from June 2001 to September 2001 and on active duty from July 2002 to April 2003 and from March 2004 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, that denied the above claims. In September 2008, the Board remanded the present matter for additional development and due process concerns. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND 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). In the previous remand, the RO was directed to obtain a VA examination with an opinion as to whether any currently demonstrated left knee disability, bilateral wrist and thumb disability, or left ankle disability had their onset during active service or were related to any in-service disease or injury. The Veteran was afforded a VA examination in August 2009. In a January 2010 statement, the Veteran argued that the examination was inadequate. Upon review of the examination report, the Board finds that the opinions provided are somewhat confusing. In addition, the examiner did not offer clear support for the conclusions such that the Board could consider and weigh it against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, a remand is required to correct these deficiencies. On remand, an examination by another examiner should be arranged in order to determine the nature and etiology of the Veteran's claimed left knee, bilateral wrist and thumb, and left ankle disabilities. Such an examination is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, by an examiner who has not previously examined him, to determine whether the current nature and likely etiology of his bilateral wrist and thumb disability and left ankle disability. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that any currently demonstrated bilateral wrist and thumb disability, or left ankle disability had their onset during active service or are related to any in-service disease or injury. A detailed rationale for any opinion expressed should be provided. 2. Schedule the Veteran for an appropriate VA examination, by an examiner who has not previously examined him, to determine whether the current nature and likely etiology of his left knee disability. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner should answer the following questions: Does the evidence of record clearly and unmistakably show that the Veteran had a left knee disability that existed prior to his entry onto active duty? If the answer is yes, does the evidence clearly and unmistakably show that the preexisting condition was not aggravated by service? If the answer is no, is it at least as likely as not that the current left knee disability had its onset in service? A rationale for all opinions expressed should be provided. 3. Then, readjudicate the claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. The examination obtained on remand should be carefully reviewed and returned to the VA examiner if found to be inadequate or unclear. If the decision with respect to the claims remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).