Citation Nr: 1216396 Decision Date: 05/07/12 Archive Date: 05/16/12 DOCKET NO. 08-05 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to secondary service connection for left knee degenerative joint disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). After the Board denied the claim in May 2009, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a June 2011 Memorandum Decision, which vacated and remanded the Board's decision, insofar as it denied service connection for the left knee disorder on the basis of aggravation of or as secondary to service-connected right knee disability, leaving intact the portion of the Board's decision that denied service connection on the basis of direct incurrence or on a presumptive basis. The Board remanded the case in February 2012, for additional development, consistent with the decision of the Court. The case has been returned to the Board for further appellate action. The Board notes that in its February 2012 remand, the RO was directed to ask the Veteran if he was working and if he indicated that he was unemployed, to afford him an opportunity to submit a formal claim for a total disability rating based on individual unemployability, due to service-connected disability (TDIU) and the opportunity to submit or identify evidence to substantiate that he is unemployed as a result of service-connected disability. See February 2012 remand. The record does not reflect that these directives were complied with. However, during his February 2012 VA examination, the Veteran reported that he was unemployed, and had retired secondary to health reasons, including his knee conditions. The issue of entitlement to a (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 After a review of the evidence, the Board is of the opinion that further development is required before the Board decides the issue on appeal. In its February 2012 remand, the Board directed the RO to afford the Veteran a VA examination of the left knee, and an opinion which addressed whether his current left knee disorder is secondary to or aggravated by his service-connected right knee disorder. The examiner was specifically asked to answer the following questions: (a). What diagnosis(es) should be assigned for the Veteran's left knee disorder(s)? (b). Is it at least as likely as not (50 percent, or greater, probability) that the repetitive act of shifting weight to the left knee from the right leg due to service-connected right leg disabilities caused the onset of degenerative changes in the Veteran's left knee, or caused onset of any current left knee disorder, or that service-connected right leg disabilities otherwise caused any current left knee disorder? (c). Is it at least as likely as not (50 percent, or greater, probability) that the repetitive act of shifting weight to the left knee from the right leg due to service-connected right leg disabilities aggravated a left knee disorder, that is, has resulted in permanently increased severity of the left knee disorder beyond the expected natural progression of that disorder, or that service-connected right leg disabilities otherwise aggravated a left knee disorder? The examiner was also asked to discuss the Veteran's contention that shift of weight to the left knee because of right leg pain and disability has caused or aggravated a left knee disorder, and to comment on the Veteran's lay statements as to onset and severity of the symptoms attributed to the claimed left knee disorder. The Board also stipulated that if a question or question was answered in the negative, the examiner was to explain the rationale and support in the literature for the conclusion reached. In response to the Board's February 2012 remand, a VA medical opinion was submitted in February 2012. The examiner diagnosed left knee degenerative joint disease, and opined that the disability was less likely than not proximately due to or the result of the Veteran's service-connected right leg condition. He noted that he based his opinion on a review of "the credible medical literature," which revealed that a condition affecting one weight bearing joint would not result in a condition of the opposite weight bearing joint. He noted further that it was more likely than not that the Veteran's left knee condition was a result of aging, musculoskeletal deconditioning, obesity, and a genetic predisposition to developing arthritic knee conditions. The Board finds that the February 2012 VA examiner's opinion did not adequately respond to the directives of the February 2012 remand, and as such, did not adequately address whether the Veteran's current left knee disorder is secondary to or aggravated by the service-connected right leg disorders. Accordingly, the Board find's that the negative opinion is inadequate for rating purposes. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet.App. 303 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2010). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet.App. 109, 114 (1996); Stanton v. Brown, 5 Vet.App. 563, 569 (1993). A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. As such, the Board has determined that VA has a duty to assist by seeking another medical opinion. See 38 C.F.R. § 4.2 (2011). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination of the left knee, if possible by a physician. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should be advised that the Veteran does not argue that he incurred a current left knee disorder in service or within one year following service. The examiner must be advised that the Veteran has been granted service connection for the following disabilities of the right leg: (1) shell fragment wound, right lower leg, Muscle Group XI; (2) shell fragment wound, lateral right thigh, Muscle Group XIV; and, (3) residuals, fracture, right fibular head. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left knee degenerative joint disease was caused or aggravated by his service-connected right leg disabilities. The examiner should specifically discuss whether it is at least as likely as not (50 percent, or greater, probability) that the repetitive act of shifting weight to the left knee from the right leg due to service-connected right leg disabilities caused the onset of degenerative changes in the Veteran's left knee, or caused onset of any current left knee disorder, or that service-connected right leg disabilities otherwise caused any current left knee disorder. The examiner should also specifically discuss whether it is at least as likely as not (50 percent, or greater, probability) that the repetitive act of shifting weight to the left knee from the right leg due to service-connected right leg disabilities aggravated a left knee disorder, that is, has resulted in permanently increased severity of the left knee disorder beyond the expected natural progression of that disorder, or that service-connected right leg disabilities otherwise aggravated a left knee disorder. The examiner should also address the Veteran's contention that shift of weight to the left knee because of right leg pain and disabilities has caused or aggravated a left knee disorder. The examiner must comment on the Veteran's lay statements as to onset and severity of the symptoms attributed to the claimed left knee disorder. If a question or questions above is/are answered in the negative, the examiner should explain the rationale and support in the literature for the conclusion reached. The examiner should also include a citation to/copy of the medical source(s) used in his determination. If any requested opinion cannot be provided without resort to pure speculation, the examiner should explain why the opinion cannot be provided and identify information that might assist to provide a basis for a non-speculative opinion. 2. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. Readjudicate the Veteran's appeal. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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. 2011). _________________________________________________ BARBARA B. COPELAND 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) (2011).