Citation Nr: 1316849 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 08-17 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for patellofemoral syndrome, right knee. 3. Entitlement to service connection for sinusitis, maxillary. 4. Entitlement to service connection for a skin disability of the lower extremities, to include venous stasis dermatitis. 5. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1952 to June 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2007 and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In the August 2007 rating decision, the RO denied entitlement to service connection for left knee impairment. The appellant appealed the case to the Board and in a December 2010 decision, the Board denied the claim. The appellant appealed the Board's December 2010 decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2012, the Court issued a memorandum decision vacating the Board's decision regarding the claim for left knee impairment and remanding the case for readjudication in compliance with the directives specified. In January 2013, the Board remanded the claim for additional development. 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). 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 Board finds that there has not been substantial compliance with the mandates of the January 2013 remand. In the January 2013 remand, the Board requested that the appellant be afforded a VA examination to determine the etiology of the appellant's left knee disability. The Board specifically requested the VA examiner to consider the appellant's competent assertion of continuity of left knee pain. A VA opinion was obtained in February 2013. The VA clinician found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA clinician stated that the appellant was diagnosed with a contusion in the service but no evidence of chronic or recurring left knee pain is noted by the appellant in service. A discharge service exam dated in August 1964 indicated a normal knee exam and no complaints by the appellant of any joint problem. The VA clinician stated that it would therefore be very unlikely that the appellant sustained a torn meniscus in the service. It is also very unlikely that his left knee meniscus tear, diagnosed 50 years after leaving service, would have any relationship to his service. The VA clinician stated that "if the Veteran's torn meniscus occurred in service, it would have been symptomatic during his service time and he most likely would have sought treatment for this." The Board finds that the rationale for the February 2013 opinion is inadequate. As noted in the remand, the appellant is competent to report symptoms capable of lay observation such as having pain in the left knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He has asserted that he has had left knee pain since his claimed in-service knee injury. See July 2008 letter from M.L.C., M.D. As the February 2013 VA opinion is based on the absence of treatment in the appellant's service treatment records and the examiner did not appear to consider the appellant's statements, as requested in the Board remand, the opinion is inadequate. The Court has stated that compliance by the Board or the AOJ 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. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the claim must be remanded for a new VA opinion. In the January 2013 remand, the Board also requested that the AOJ attempt to obtain records from the appellant's reported hospitalization and/or surgery for a left knee condition in service at the Perrin Air Force Base hospital. See October 2009 VA examination report. The Appeals Management Center (AMC) requested the appellant's service treatment records from the Joint Records Research Center and requested that the Louisville, Kentucky RO search for the appellant's service treatment records. However, as the appellant specified that he was hospitalized, the hospital records may be filed separately from the appellant's service treatment records. There is no indication the AMC attempted to obtain in-patient records from the Perrin Air Force Base hospital records directly and it is not clear whether such records exist. Thus, another attempt should be made to obtain the alleged record of his hospitalization in service. In the January 2013 remand, the Board also noted that the appellant had filed a notice of disagreement with the issues of entitlement to service connection for patellofemoral syndrome of the right knee, sinusitis, a skin disability of the lower extremities, to include venous stasis dermatitis, and hemorrhoids. In a March 2013 memorandum on these issues, the AMC indicated that the issues were non-AMC issues. As a statement of the case has still not been issued on the issues of entitlement to service connection for patellofemoral syndrome of the right knee, sinusitis, a skin disability, and hemorrhoids, the claims must again be remanded. 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. Attempt to obtain the records, if any, from the appellant's reported hospitalization and/or surgery for a left knee condition in service at the Perrin Air Force Base hospital. See October 2009 VA examination report. A request should be made for in-patient records from the Perrin Air Force Base hospital directly if these records are kept separately from the appellant's service treatment records. If no records are available, the claims file must indicate this fact. 2. After any records obtained have been associated with the claims file, provide the appellant's claims file to an appropriate VA clinician to provide an opinion as to whether the appellant's left knee disability is at least as likely as not (likelihood of at least 50%) related to service. For purposes of this opinion, the VA clinician should assume that the appellant's statement that he has had left knee pain since service is credible. See July 2008 letter from Dr. M.L.C. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the clinician determines that another examination is necessary to provide an opinion, such should be accomplished. 3. Provide the appellant with a statement of the case as to the issues of entitlement to service connection for patellofemoral syndrome of the right knee, entitlement to service connection for maxillary sinusitis, entitlement to service connection for a skin disability of the lower extremities to include venous stasis dermatitis, and entitlement to service connection for hemorrhoids. The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 4. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a left knee disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MILO H. HAWLEY 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).