Citation Nr: 1308947 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-38 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which declined to reopen the Veteran's claim for service connection for a bilateral knee disability. In October 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2010. On a September 2010 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO. He was accorded a hearing before a hearing officer at the RO in November 2010. A transcript of that hearing has been associated with the Veteran's claims file. In a subsequent communication received in October 2011, the Veteran withdrew his request for a hearing before a VLJ at the RO. Accordingly, the Veteran's request for a hearing before a VLJ at the RO is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). In January 2012, the Board reopened the previously denied claim for service connection for a bilateral knee disability and remanded the underlying claim for service connection for a bilateral knee disability to the Appeals Management Center (AMC) for further evidentiary development. Pursuant to that remand, the Veteran underwent a VA examination in January 2012. When the case was before the Board in August 2012, however, the Board found the January 2012 VA examination to be inadequate and thus again remanded the Veteran's bilateral knee claim to the AMC for additional evidentiary development, including obtaining a new VA examination. Stegall v. West, 11 Vet. App. 268 (1998) (which held that the Board is obligated by law to ensure that the AMC complies with its directives; 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). Unfortunately, after reviewing the current record, the Board finds that the AMC has not complied fully with the August 2012 remand directives, as is discussed more fully in the following remand. As such, the Veteran's claim for service connection for a bilateral knee disability must be remanded again. Stegall, supra. Accordingly, this appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND After a thorough review of the Veteran's claims file, the Board finds that further evidentiary development is necessary prior to the adjudication of his claim for service connection for a bilateral knee disability. The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of the Veteran's appeal. Specifically, in the August 2012 remand, the AMC was instructed to provide the Veteran with a VA examination to address whether any bilateral knee disorder was related to his military service. Indeed, the examiner was directed to provide such an opinion for any diagnosed bilateral knee disability. The remand directive was not limited to the January 2012 VA examiner's diagnosis of bilateral knee contusions as the current disability or the in-service train derailment as the in-service event. Pursuant to the August 2012 remand, the Veteran was accorded a new VA examination in September 2012. At that time, the examiner diagnosed the Veteran with bilateral knee contusions and concluded that they were not related to his military service. In support of this opinion, the examiner referenced the lack of medical evidence of a chronic knee disability originating from military service. The examiner further noted that the Veteran had livedo reticularis on examination, consistent with peripheral vascular disease, and that his diabetes mellitus could have resulted in neuropathy. However, the examiner did not provide an opinion as to whether either of these diagnoses (livedo reticularis or neuropathy) was related to the Veteran's military service. As the examiner seems to conclude that these conditions are, at least in part, responsible for the Veteran's complaints of bilateral knee pain and the claims file includes VA treatment records linking the Veteran's neuropathy to his in-service train accident, an opinion on any relationship between these diagnoses and the Veteran's military service is necessary. See VA treatment records, dated in May 2004 and January 2008. The examiner did not give such an opinion or comment on these VA treatment records. Finally, service treatment records include a December 1943 complaint of a painful right knee. Neither the January 2012 nor September 2012 VA examiner addressed this in-service complaint of right knee pain. In light of this deficiency, the Board finds that the September 2012 VA examination fails to comply with the Board's August 2012 remand and is inadequate to decide the claim. Stegall & Barr, supra. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim for service connection for a bilateral knee disability must be remanded for new VA examination and opinion. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination (with other than the January 2012 and September 2012 examiners) to determine the nature and etiology of any knee disability . The examiner must review the Veteran's claims file in conjunction with the examination. A notation to the effect that such a review has taken place should be made in the examination report. The examiner must identify and diagnose any knee disability, to include any knee condition that may have begun during the pendency of the appeal but may have resolved by the time of the current VA examination. For each such knee disability (to include the previously diagnosed neuropathy, livedo reticularis, and bilateral knee contusions), the examiner must state whether it is at least as likely as not that the disorder had its onset in service or is otherwise related to his active service, to include the in-service train derailment or the December 1943 complaint of right knee pain. The examiner is hereby informed that the Board has accepted the Veteran's contentions of an in-service train derailment as competent and credible. Also, in rendering the requested opinion, the examiner should address the prior VA examinations, the December 1943 service treatment record showing complaints of right knee pain, and the May 2004 and January 2008 VA treatment records noting the Veteran's complaints of neuropathy related to his in-service train derailment injury The term "at least as likely as not" does not mean "within the realm of medical possibility" but, rather, means the weight of medical evidence both for and against an opinion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he/she shall explain why this is so and shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After completing the above action and any other development that may be indicated by a response received as a consequence of the action taken in the preceding paragraph, readjudicate the claim for service connection for a bilateral knee disability. If this issue remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of him until further notice. However, the Board advises him that the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for the scheduled VA examination, is both critical and appreciated. He is advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ THERESA M. CATINO 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. See 38 C.F.R. § 20.1100(b) (2012).