Citation Nr: 1018215 Decision Date: 05/17/10 Archive Date: 06/04/10 DOCKET NO. 07-19 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee disability, to include arthritis. 2. Entitlement to service connection for a bilateral knee disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for onychomycosis of the toenails. 4. Whether new and material evidence has been received to reopen a claim for service connection for bilateral tinea pedis. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for hypertension (claimed as high blood pressure). 7. Entitlement to service connection for headaches, to include as due to exposure to asbestos. 8. Entitlement to service connection for sleep apnea. 9. Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Sheila Mitchell, Esquire WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from January 1978 to January 1984; he also had service in the Army National Guard, including active duty service from March 2003 to July 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran and his wife testified at a personal hearing before the undersigned Veterans Law Judge sitting in Washington, D.C., in December 2009; and a transcript of the hearing is of record. Although the Veteran was granted an additional 60 days to submit additional evidence, no new evidence was submitted. The Veteran raised the issue at his December 2009 personal hearing of whether new and material evidence has been received by VA to reopen a claim for service connection for bilateral hearing loss, which has not been adjudicated by the RO. Consequently, this issue is referred to the RO for appropriate action. For reasons discussed hereinbelow, the now reopened claim of service connection for a bilateral knee disability is REMANDED to the RO. FINDINGS OF FACT 1. The original claim of service connection for a bilateral knee disability was denied by an unappealed rating decision in July 1996; reopening of the claim was subsequently denied by an unappealed rating decision in January 1998. 2. The additional evidence received subsequent to the January 1998 rating decision is not cumulative or redundant of evidence previously of record and by itself or in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim of service connection for a bilateral knee disability. 3. The original claim of service connection for onychomycosis of the toenails was denied by the RO in an unappealed rating decision in January 1998. 4. The evidence received subsequent to the January 1998 denial of service connection for onychomycosis of the toenails does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for onychomycosis of the toenails. 5. The original claim of service connection for bilateral tinea pedis was denied by the RO in an unappealed rating decision in January 1998. 6. The evidence received subsequent to the January 1998 denial of service connection for bilateral tinea pedis does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for bilateral tinea pedis. 7. The Veteran does not have a low back disability that is due to an event or incident of his active service. 8. The Veteran does not have hypertension that is due to an event or incident of his active service. 9. The Veteran does not have headaches that are due to an event or incident of his active service, including exposure to asbestos. 10. The Veteran does not have sleep apnea that is due to an event or incident of his active service. 11. The Veteran does not have an eye disability that is due to an event or incident of his active service. CONCLUSIONS OF LAW 1. The January 1998 rating decision which denied entitlement to service connection for a bilateral knee disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). 2. Evidence received since the January 1998 decision is new and material with respect to the issue of service connection for a bilateral knee disability and the claim of entitlement to service connection for a bilateral knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The January 1998 rating decision that denied service connection for onychomycosis of the toenails is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). 4. New and material evidence has not been received to reopen a claim for service connection for onychomycosis of the toenails. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2009). 5. The January 1998 rating decision that denied service connection for bilateral tinea pedis is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). 6. New and material evidence has not been received to reopen a claim for service connection for bilateral tinea pedis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2009). 7. The criteria for the establishment of service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 8. The criteria for the establishment of service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 9. The criteria for the establishment of service connection for headaches, to include as due to asbestos, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 10. The criteria for the establishment of service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 11. The criteria for the establishment of service connection for an eye disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. With respect to the matter of the submission of new and material evidence, although VA's duty to assist is circumscribed, the notice provisions of VCAA are applicable. The United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a), as amended by the VCAA, and 38 C.F.R. § 3.159(b), as amended, which pertain to VA's duty to notify a claimant who had submitted a complete or substantially complete application, apply to those claimants who seek to reopen a claim by submitting new and material evidence pursuant to 38 U.S.C.A. § 5108. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the Veteran in April 2006, prior to adjudication, which provided the requirements needed to reopen a claim based on new and material evidence and the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical records were subsequently added to the claims file. With respect to a claim of whether new and material evidence has been presented to reopen the claim for service connection, in Kent. v. Nicholson, 20 Vet. App. 1 (2006), the Court established significant requirements with respect to the content of the duty to assist notice under the VCAA which must be provided to a veteran who is petitioning to reopen a claim. The Court held that VA must notify a veteran of the evidence and information that is necessary to reopen the claim and VA must notify a veteran of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. The Court also held that VA's obligation to provide a veteran with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, VA to examine the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. In this case, the April 2006 VCAA notification letter complies with the holding in Kent. The RO informed the Veteran that the claims were originally denied because the claimed disabilities were not incurred in or aggravated by military service. The Veteran was informed in the April 2006 letter that an appropriate disability rating and effective date would be assigned if any of his claims was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. However, with respect to the claims to reopen, VA's duty to assist the Veteran in the development of his claims is not triggered unless and until a claim is reopened. See 38 U.S.C.A. § 5103A. Although no nexus opinion has been obtained on the service connection issues addressed in this case, none is needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. There is no medical evidence of a chronic back or eye condition, or of chronic hypertension, headaches, or sleep apnea due to service. Consequently, the Veteran has not presented evidence indicating a nexus between a current condition and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board concludes that all available evidence that is pertinent to the claims addressed below has been obtained and that there is sufficient medical evidence on file on which to make a decision on each issue. Although the Veteran testified in December 2009 that some of his service treatment records might be missing, the Board notes that there are records that cover the period from prior to service entrance until his separation examination in November 1983. There are also records dated in April 2003. There is no clear indication on file that there are service treatment records that are available and have not been associated with the claims file. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his personal hearing in December 2009. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2009). Analyses of the Claims New And Material Evidence In general, unappealed rating decisions are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Knightly v. Brown, 6 Vet. App. 200 (1994). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The issue of service connection for a bilateral knee disability was originally denied by an unappealed rating decision in July 1996 as not well grounded because there was no evidence of chronic disability in service. The claim was not reopened in a January 1998 rating decision because there was no new and material evidence. The issues of service connection for onychomycosis of the toenails and bilateral tinea pedis were originally denied by an unappealed rating decision in January 1998 because there was no evidence of either disability due to service. The Veteran attempted to reopen claims for the above-noted disabilities in March 2006. The evidence on file at the time of the January 1998 rating decision consisted of the Veteran's service treatment records, a VA hospital report dated from December 1995 to January 1996, a May 1996 VA examination report, and VA treatment records dated in January 1997 and August 1997. The Veteran's service treatment records reveal knee problems, including chondromalacia. When examined by VA in May 1996, the diagnoses included bilateral patellar chondromalacia, bilateral knee rheumatologic disease consistent with Raynaud's phenomena, and arthritis of the right knee. Evidence received after January 1998 consists of treatment records dated in April 2003 and July 2005, a transcript of the December 2009 hearing, and written statements by and on behalf of the Veteran. In order for the Veteran's claims to be reopened, new and material evidence must be submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). Consequently, there would need to be evidence that the Veteran currently has a knee disability, onychomycosis, or tinea pedis due to an event or incident of his period of active service. The evidence received after January 1998 includes treatment records dated in from April 2003 to July 2005 with findings consistent with bilateral degenerative changes of the knees. In fact, the Veteran was given a permanent physical profile for arthritis of the knees in February 2004. These records are new and material. They are new because they have not previously been received by VA and they are material because they raise a reasonable possibility of substantiating the claim for service connection for a bilateral knee disability. Therefore, new and material evidence has been submitted and the claim for service connection for a bilateral knee disability is reopened. With respect to the other new and material issues on appeal, the Board has reviewed the evidence received into the record since the January 1998 denials and finds that new and material evidence has not been submitted sufficient to reopen a claim for service connection for either of these disabilities. Although the Veteran has contended, including at his December 2009 hearing, that he incurred onychomycosis and tinea pedis due to service exposure to frostbite, his service treatment records do not reveal any complaints or findings of either onychomycosis or tinea pedis, including on separation examination in November 1983. The initial post-service evidence of either of the disabilities is not until January 1997, when mild onychomycosis with tinea pedis was noted. There has not been any medical evidence relevant to the issues of onychomycosis or tinea pedis added to the claims file since the January 1998 denials. Thus, the additional evidence received since the January 1998 rating decision does not relate to the unestablished fact necessary to substantiate the claims by showing a link between either of the disabilities and service, nor does it raise a reasonable possibility of substantiating either of the claims. Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). (Observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Accordingly, the Board finds that the claims for service connection for onychomycosis of the toenails and bilateral tinea pedis are not reopened. Service Connection The Veteran seeks service connection for a low back disability, for hypertension, for headaches, to include as due to exposure to asbestos, for sleep apnea, and for a bilateral eye disability. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claims and that the appeals will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Moreover, in the case of hypertension, service connection may be granted if the disease is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). With respect to the second element in Hickson above, evidence of in-service incurrence or aggravation of a disease or injury, there is no evidence of an in-service headaches or in-service exposure to asbestos. There is also no nexus opinion in favor of the claim. Consequently, service connection for headaches, to include as due to exposure to asbestos, is not warranted. The Veteran also seeks service connection for a low back disability, for hypertension, for sleep apnea, and for a bilateral eye disability due to service. The Veteran's service treatment records, including his November 1983 separation examination report, do not reveal any complaints or findings indicative of any of these disorders. General physical evaluation during hospitalization for psychiatric problems from December 1995 to January 1996 did not reveal any pertinent abnormality. Moreover, the post-service medical evidence on file does not reveal any complaints or findings of any of the disorders at issue until sleep apnea was noted in July 2005. Isolated elevated blood pressure readings, which are not considered a disability, were noted in May 2003; hypertension was not diagnosed. There is no nexus opinion linking any of the disabilities at issue to service. Because there is no evidence of a low back disability, hypertension, or an eye disability in service or after service separation, and because there is no nexus opinion linking any of the disabilities to service, service connection for a low back disability, for hypertension, and a bilateral eye disability is not warranted. Although there is a notation in July 2005 of sleep apnea, there is no medical evidence in service or after discharge that this disorder is causally related to service. Consequently, service connection is also not warranted for sleep apnea. The Board has considered the December 2009 hearing testimony of the Veteran and his wife and his written contentions. However, as laypersons without the appropriate medical training and expertise, the Veteran and his wife are not competent to render a probative opinion on a medical matter, such as whether he has a current disability related to service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). As there is no competent medical evidence of record to support the Veteran's claims, the preponderance of the evidence is against the Veteran's claims for service connection for a low back disability, hypertension, sleep apnea, and a bilateral eye disability, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER As new and material evidence has been submitted to reopen the claim of service connection for a bilateral knee disability, the appeal to this extent is allowed subject to further action as discussed hereinbelow. As new and material evidence sufficient to reopen the claim of service connection for onychomycosis of the toenails has not been submitted, the appeal to this extent is denied. As new and material evidence sufficient to reopen the claim of service connection for bilateral tinea pedis has not been submitted, the appeal to this extent is denied. Service connection for low back disability is denied. Service connection for hypertension is denied. Service connection for headaches, to include as due to exposure to asbestos, is denied. Service connection for sleep apnea is denied. Service connection for a bilateral eye disability is denied. REMAND The Board has found that the Veteran has submitted new and material evidence to reopen his claim of entitlement to service connection for a bilateral knee disability. Although the April 2003 and July 2005 records are new and material with respect to the issue of service connection for a bilateral knee disability, they do not provide a nexus opinion linking a current knee disability to service. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2009), an examination will be requested whenever VA determines, as in this case, that there is a need to verify the etiology of a disability. See also 38 C.F.R. § 3.159 (2009). Accordingly, the claim for service connection for a bilateral knee disability should be considered by the RO on a de novo basis prior to any further action by the Board. Curry v. Brown, 7 Vet. App. 59, 67 (1994); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Therefore, this issue is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO will take appropriate action to contact the Veteran and ask him to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to his claim for service connection for a bilateral knee disability. After obtaining any necessary authorization from the Veteran for the release of his private medical records, the AMC/RO should obtain and associate with the file all records that are not currently on file. If the AMC/RO is unsuccessful in obtaining any such records identified by the Veteran, it should inform the Veteran and his representative of this and request them to provide a copy of the outstanding medical records if possible. 2. The AMC/RO should then schedule the Veteran for a VA examination by an appropriate health care provider to determine the likely etiology of his current knee disability. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be made available to the examiner in conjunction with this examination. The examination report must reflect review of pertinent material in the claims folder. b. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion whether any knee disability found was either incurred in or aggravated by service. A complete rationale for all opinions must be provided. The report prepared must be typed. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. 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 (2009). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of all indicated development, the AMC/RO should readjudicate the reopened claim of service connection for a bilateral knee disability, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case, which should include all pertinent law and regulations. The Veteran and his attorney should then be given an appropriate opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran may present additional evidence or argument while the case is in remand status at the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts 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, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs