Citation Nr: 1314150 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-30 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disorder, to include as secondary to a right knee disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from January 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). 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 In November 2012, the Board remanded the Veteran's claim in order to obtain additional pertinent medical evidence, including from the Social Security Administration (SSA), and to provide the Veteran with an additional examination of his left knee. When the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA provides a Veteran with a medical examination, due process requires that VA notify the veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In the instant case, the Board's November 2012 Remand asked the AMC to obtain records from the SSA relating to the Veteran's claims for disability benefits. The SSA provided records in January 2013. Additionally, the Board's November 2012 Remand asked the AMC to provide the Veteran with an additional VA examination of his left knee, and to ask the examiner to opine whether it was at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's left knee condition was secondary to or aggravated by a service-connected disability. The Veteran received a VA examination in January 2013. The Board observes two deficiencies with the January 2013 examination report. First, the Board's remand asked the examiner to opine not only whether it was at least as likely as not that the Veteran's left knee condition was due to or the result of a service-connected disability, but also whether the Veteran's left knee condition was aggravated by a service-connected disability. The January 2013 examination report did not provide an opinion regarding aggravation, and a supplemental opinion must therefore be solicited on remand. Additionally, although the SSA provided records relating to the Veteran in January 2013, the examiner did not review such records before rendering an etiological opinion. Instead, the examiner stated that "[t]here are no . . . [SSA] records." On remand, the examiner must review all of the evidence in the Veteran's claims file, including evidence from the SSA, before rendering a supplemental opinion. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the examiner who conducted the January 2013 VA examination. If the January 2013 examiner is no longer available, a new examination should be conducted. The examiner should once again be requested to provide answers to the following questions, and to provide a thorough rationale: a) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's left knee condition had its onset in service or is otherwise related to service, to include any complaints noted in his service treatment records? b) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's current left knee condition was caused by the Veteran's service-connected right knee condition? c) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's current left knee condition was aggravated (that is, permanently worsened) by the Veteran's service-connected right knee condition? The physician must review the Veteran's claims file, to include records from the SSA provided in January 2013, before examining the Veteran. A detailed rationale for all opinions expressed should be provided. 2. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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 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).