Citation Nr: 1314422 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 97-27 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to July 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated April 1991 and January 1996 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claim. During the course of the appeal, the Veteran moved to Florida; original jurisdiction now resides in the St. Petersburg, Florida, RO. In August 2000, the Veteran presented sworn personal testimony during a formal hearing before a decision review officer at the San Juan, Puerto Rico, RO. A transcript of the hearing has been associated with the Veteran's VA claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). An appeal had also been perfected on the issue of entitlement to service connection for chronic headaches, to include migraine headaches, and was addressed in the Board's October 2012 remand. However, this issue was granted in a February 2013 rating decision. As this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. 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 Although further delay is regrettable, after a review of the record, the Board observes that further development is still required prior to adjudicating the Veteran's claim. In October 2012, the Board found that a remand was required for the agency of original jurisdiction (AOJ) to schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed right leg/knee disability. Specifically, the Board noted that although a previous VA examiner provided an opinion regarding the etiology of the Veteran's degenerative joint disease and total arthroplasty of the right knee, the examiner did not discuss whether previously-diagnosed right leg gout was currently present, and, if so, whether such was of service origin. In addition, the Board directed the examiner to specifically discuss, as appropriate, the Veteran's own reported recollections regarding pertinent in-service events concerning any right leg disability, to include the Veteran's June 1994 description of suffering frostbite while in Korea. As directed by the Board's remand, the Veteran was afforded a VA knee and lower leg conditions examination in December 2012. However, the AMC's restatement of the requested opinion did not reference the Veteran's diagnosed gout. Similarly, the December 2012 VA examination report only provided an etiological opinion with respect to a diagnosis of total right knee replacement with residual edema, and did not make any reference to the Veteran's diagnosed gout, as explicitly requested in the Board's October 2012 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. 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. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the appeal must be remanded for compliance with the October 2012 Board remand. Accordingly, the case is REMANDED for the following action: (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.) 1. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed right leg/knee disability. It is imperative that the claims file be made available to and be reviewed by the examiner in conjunction with the examination; such review must be noted in the examination report. All examination findings should be clearly reported. The appropriate examiner should clearly identify all diagnoses of right leg/knee disability(ies). As to each such current disability identified, the examiner should offer an opinion as to whether that disability is at least as likely as not (a 50 percent or higher degree of probability) causally related to the Veteran's active duty service. Any available service treatment records referring to pertinent symptoms, and the Veteran's overall medical history, should be expressly discussed in connection with the medical opinion. In particular, the Veteran's own reported recollections regarding pertinent in-service events concerning each disability should be specifically discussed, as appropriate, to include the Veteran's June 1994 description of suffering frostbite while in Korea. In addition, as the Veteran has been diagnosed as having gout in the lower extremities, the examiner must discuss whether right leg gout was of service origin. Regardless of whether gout is currently diagnosed, the Board emphasizes that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may resolve prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet App 319 (2007). Detailed reasons should be furnished for all opinions. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 2. In the interest of avoiding future remand, the RO/AMC should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 3. Following completion of the above, and any other necessary development, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ L. M. BARNARD Acting 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).