Citation Nr: 1244167 Decision Date: 12/28/12 Archive Date: 12/31/12 DOCKET NO. 09-40 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected residuals of shell fragment wound (SFW) to the right buttock. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of SFW to the right buttock. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to June 1971. He was awarded a Purple Heart while in service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied claims for service connection for left foot neuropathy and a bilateral knee disorder. In February 2012, a Board hearing was held before the undersigned. A transcript of that proceeding is associated with the claims file. In the April 2012 Board decision, the claim for service connection for left foot neuropathy was dismissed. Although the issue appeared on the November 2012 supplemental statement of the case (SSOC), this was an error and it is not on before the Board at this time. In a January 1992 statement, the Veteran raised a claim of entitlement to service connection for a breathing disorder secondary to herbicide exposure. Consideration of this issue was deferred in a February 1993 rating action. A review of the record does not reveal that this issue was ever adjudicated. Therefore, it is referred to the RO for appropriate action. As explained further below, the Board finds noncompliance with the April 2012 remand. As a result, 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 The April 2012 remand instructed the AMC to: associate updated VAMC treatment records (including that received in May 2010) and to obtain a VA opinion on the question of secondary service connection via aggravation. In other words, the Board requested the opinion address whether the service-connected residuals of the right buttock SFW aggravated (made permanently worse beyond the natural progression of the disability) any current right or left knee disabilities. If the opinion was affirmative, the baseline level of disability prior to aggravation was to be identified by reviewing medical evidence and the Veteran's lay statements. The May 2012 VA examination report, in the form of a disability benefits questionnaire (DBQ), is unresponsive to the above request. The applicable sections (parts 5 and 7 on printed page 13) are completely blank. Instead, the examiner answered the question as to direct service connection, which had already been addressed. As explained in the last remand, service connection may be granted for disability which is proximately due to or the result of service-connected disability (38 C.F.R. § 3.310(a) (2012)) or service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998). As the May 2012 VA examination report did not adequately address whether the Veteran's current knee disabilities have been aggravated by his service-connected SFW right buttock residuals, remand for a VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Associate with the file all updated (since April 2012) clinical records of any and all VAMC treatment that the Veteran has received for right and left knee disabilities. 2. Send the claims file to an appropriate VA examiner to determine the etiology of the right and left knee disabilities. Based on a review of the record, the examiner should provide an opinion addressing whether it is at least as likely as not (50% or better probability) that the right and/or left knee disabilities have been aggravated (made permanently worse beyond the natural progression of the disease) by the service-connected residuals of the SFW to the right buttock. If aggravation is found, the examiner must identify the baseline level of disability prior to aggravation. This may be accomplished by review of the medical evidence. Additionally, the Veteran's statements as to changes in the severity of his observable symptoms over time may be considered as well. The examiner must explain the rationale for all opinions. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. If the examiner finds that a physical examination is required to fully respond to this inquiry, then one should be arranged. The instructions and questions to be addressed at the examination are the same as those set forth in the above paragraphs. 3. The RO should ensure that all development sought above is completed (all questions posed are answered, with explanation of rationale), and then re-adjudicate the Veteran's claims. If any remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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 (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. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).