Citation Nr: 1300899 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-04 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a higher initial evaluation for degenerative joint disease (DJD) of the lumbar spine, rated 10 percent as of August 29, 2005, and 40 percent as of August 25, 2011. 2. Entitlement to an initial compensable evaluation for DJD of the left knee. 3. Entitlement to an initial compensable evaluation for DJD of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from October 1968 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a May 2011 hearing conducted in Washington, DC. A transcript of the hearing is of record. This case was brought before the Board in July 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. 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 Veteran's claims for initial compensable evaluations for DJD of the lumbar spine and bilateral knees were previously remanded for a VA examination and issuance of a supplemental statement of the case (SSOC). With respect to the VA examination, the Board noted that service connection was granted on a secondary basis, as the RO determined each of the Veteran's lumbar spine and left and right knee disabilities had been aggravated by his service-connected pes planus. In ordering a new examination, the Board instructed that the examiner provide an opinion regarding what percentage of the Veteran's disabilities is attributable to his bilateral pes planus. However, in a September 2012 VA examination report, instead of providing the requested opinion, the examiner offered an etiological opinion that the Veteran's bilateral knee disabilities are not secondary to his service-connected pes planus. As service connection has previously been awarded on a secondary basis, this opinion does not provide the information necessary to allow the Board to decide the Veteran's claim. With respect to the lumbar spine, following an August 2011 VA examination, the AOJ awarded a 10 percent evaluation as of August 29, 2005 and a 40 percent evaluation as of August 25, 2011. See August 2012 rating decision. As the Veteran has not been awarded the maximum evaluation for these disabilities, this issue remains on appeal. See 38 C.F.R. § 4.16(a) (2012); see also AB v. Brown, 6 Vet. App. 35 (1993). However, no SSOC was issued with respect to this disability. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. As such, another remand, with ensuing delay, is unfortunately required so that the appellant can be provided the requested VA examination for his bilateral knee disabilities and issuance of an SSOC with respect to the lumbar spine claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination to determine the current severity of his service-connected left and right knee disabilities. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology should be noted in the examination report. The examiner must provide an opinion as to how much (what percentage) of the severity of the Veteran's bilateral knee disabilities is attributable to his bilateral pes planus. For the purpose of this opinion, the examiner is instructed to presume the Veteran's bilateral knee disabilities have been aggravated by his bilateral pes planus. In addition, the examiner should discuss whether the Veteran's disabilities exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorder. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiners should also express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his back repeatedly over a period of time. The examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims of entitlement to increased initial evaluations for degenerative joint disease of the lumbar spine and bilateral knees based on the entirety of the evidence. In particular, a SSOC should be issued with respect to the claim for an increased evaluation for a lumbar spine disability. In particular, all evidence since the issuance of the May 2010 SSOC should be reviewed with regard to the lumbar spine disability. If the benefits sought on appeal are not granted with respect to the bilateral knees, he and his representative should be provided with a SSOC as well. In particular, all evidence since the issuance of the October 2012 SSOC should be reviewed with regard to the knee disabilities. An appropriate period of time should be allowed for response. 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. 2011). _________________________________________________ K. PARAKKAL 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) (2012).