Citation Nr: 1309833 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 08-27 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right wrist disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1971, from February 1991 to May 1991 and from May 2002 to June 2003. He also had various periods of service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision issued by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the Veteran's claims for service connection for a right wrist condition and a left knee condition. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated through October 2012; such records were considered by the agency of original jurisdiction (AOJ) in the December 2012 supplemental statement of the case (SSOC). The Board remanded the instant claims in September 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board is cognizant of the fact that the Veteran's case has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding these claims again unless it was essential for a full and fair adjudication of his claims. Right Wrist Disorder In September 2011, the Board remanded this claim to allow the Veteran's updated VA treatment records, as well as his complete reserve and active duty service records, to be obtained. A VA examination was then to be conducted to determine the nature and etiology of his claimed right wrist disorder. The examiner was asked to determine whether the Veteran's current right wrist disorder clearly and unmistakably preexisted service and was increased during service. If not, the examiner was to determine whether the Veteran's preexisting right wrist disorder was permanently aggravated by an injury incurred during a period of service. Such a VA examination was conducted in November 2012. The examiner noted the Veteran's reports that he sustained an injury to his right upper extremity during an airborne jump in 1983 and indicated that this injury did not occur during a period of active duty. The examiner then opined that the Veteran's right wrist fracture clearly and unmistakably preexisted service and was not aggravated beyond its natural progression due to service. However, an October 1983 Statement of Medical Examination and Duty Status indicated that the Veteran fell on his right arm after completing a parachute jump, causing a fracture. It was determined that the Veteran was on inactive duty for training (INACDUTRA) during this time. The Board notes that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated by INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). As the November 2012 VA examiner did not address the impact of the documented the October 1983 injury, which occurred during a period of INACDUTRA, this opinion is unlikely to survive judicial scrutiny. 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. In light of the deficiencies detailed above, this matter must be remanded to ensure compliance with the Board's previous remand. Left Knee Disorder As detailed above, the Board remanded this claim in September 2011 to allow the Veteran's updated VA treatment records, as well as his complete reserve and active service records, to be obtained. A VA examination was then to be conducted to determine the nature and etiology of his claimed left knee disorder. Such an examination was conducted in November 2012. The examiner opined that the Veteran's left knee disorder clearly and unmistakably preexisted service and was not aggravated beyond its natural progression by service. However, the examiner did not provide an explanation for this determination nor did she detail the nature of the Veteran's purported pre-service injury or disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In addition, the examiner failed to address a December 1981 Statement of Medical Examination and Duty Status, which indicated that the Veteran sustained a left knee strain after completing a parachute jump during a period of INACDUTRA. In light of these deficiencies, it is unlikely that this opinion would survive judicial scrutiny. Finally, given the time that will pass during the processing of this remand, updated VA and private treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain the Veteran's updated VA treatment records. Such records dated through October 2012 are located in the claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. 2. The RO/AMC should contact the Veteran to determine if there are any outstanding private treatment records that he wished VA to obtain on his behalf. Any response received in association with this request should be memorialized in the Veteran's claims file. 3. Following the completion of the above development, the RO/AMC should obtain an addendum to the November 2012 examination, if possible, or afford the Veteran a new examination with an appropriate examiner to determine the nature and etiology of the Veteran's claimed right wrist disorder. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. (a) Based on the evidence of record, can it be determined concluded by clear and unmistakable evidence, that the Veteran had a right wrist disorder that existed prior to his entrance into service in June 1968? If so, state (if possible) the approximate date of onset of any such injury, defect, or disorder. The examiner should comment on the July 1974 Report of Medical History which stated that the Veteran had sustained a right wrist fracture at age 11. (b) If any such right wrist injury, defect, or disorder preexisted his period of active duty service, can it be concluded by clear and unmistakable evidence that there was a worsening of such injury, defect, or disorder during service? If so, whether such a worsening (i.e., increase in severity) represented the natural progress of the injury, defect, or disorder; or, was such a worsening beyond the natural progress of the injury, defect, or disorder (representing a permanent worsening of the underlying condition). The examiner should specifically comment on the October 1983 parachute jump injury and the August 2004 fall. (c) If the examiner determines that the claimed right wrist disorder did not preexist the Veteran's service, is it at least as likely as not (50 percent or greater probability) that any such disorder had its onset during the Veteran's periods of active duty service; or, was such disorder caused by any incident or event that occurred during his period of service? The examiner should specifically comment on the October 1983 parachute jump injury, which occurred during a period of INACDUTRA, and the August 2004 injury, which occurred as a result of a fall. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. Following the completion of the development listed in items numbered one and two, the RO/AMC should obtain an addendum to the November 2012 examination, if possible, or afford the Veteran a new examination with an appropriate examiner to determine the nature and etiology of the Veteran's claimed left knee disorder. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. (a) Based on the evidence of record, can it be determined concluded by clear and unmistakable evidence that the Veteran had a left knee disorder that existed prior to his entrance into service in June 1968? If so, state (if possible) the approximate date of onset of any such injury, defect, or disorder. (b) If any such left knee injury, defect, or disorder preexisted his period of active duty service, can it be concluded by clear and unmistakable evidence that there was a worsening of such injury, defect, or disorder during service? If so, whether such a worsening (i.e., increase in severity) represented the natural progress of the injury, defect, or disorder; or, was such a worsening beyond the natural progress of the injury, defect, or disorder (representing a permanent worsening of the underlying condition). The examiner should specifically comment on the November 1981 left knee strain. (c) If the examiner determines that the claimed left knee disorder did not preexist the Veteran's service, is it at least as likely as not (50 percent or greater probability) that any such disorder had its onset during the Veteran's periods of active duty service; or, was such disorder caused by any incident or event that occurred during his period of service? The examiner should specifically comment on the November 1981 left knee strain, which occurred during a period of INACDUTRA. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 5. The RO/AMC should review the examination report(s) to insure that it (they) contain all findings and opinions requested in the remand. 6. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. The Veteran 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. 2012). _________________________________________________ MARJORIE A. AUER 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).