Citation Nr: 1318678 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 06-33 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, including as secondary to service-connected left knee postoperative residuals. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active military service from January 1951 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2009, March 2011, and January 2013, the Board remanded these issues for further development. The case has been returned to the Board for appellate consideration. As noted in the prior remand, the Veteran withdrew his appeal of the February 2005 denial of a compensable rating for his hearing loss. Nonetheless, the Veteran has submitted several written submissions in which he inquired into the status of his hearing loss claim. Thus, the Board finds the issue of entitlement to a compensable rating for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again REFERRED to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. 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 Veteran if further action is required. REMAND As noted above, the Board most recently remanded these matters in January 2013. The Board instructed the RO/AMC to provide the Veteran with an opinion to determine whether his service-connected left knee disability aggravated his right knee disability. The Board indicated that the same examiner who conducted a May 2009 VA examination should be requested to provide this opinion. The Board also specified that "[i]f [that] examiner is no longer available, the AMC/RO will refer the claims file to an examiner with qualifications at least equal to those of the examiner who conducted the May 2009 examination." Pursuant to the Board's remand, a different VA examiner rendered an opinion in February 2013. The Board observes that the May 2009 examination report was authored by a medical doctor specializing in occupational medicine. On the other hand, the February 2013 report was rendered by a physician's assistant. The Board finds that a physician's assistant's qualifications are not equal to that of a medical doctor. Therefore, the Board must remand for another opinion to be provided by an examiner with qualifications at least equal to those of the examiner who conducted the May 2009 examination (i.e., a medical doctor). See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that 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). Additionally, as to the claim for a TDIU, in the January 2013 remand, the Board instructed the AMC/RO to provide the Veteran with an examination to determine whether his service-connected disabilities preclude him from securing and following substantially gainful employment. However, the Veteran has not yet been afforded such an examination. Therefore, the Board must remand this matter once again. See id. Accordingly, the case is REMANDED for the following actions: (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. Send the claims file to an examiner with qualifications at least equal to those of the examiner who conducted the May 2009 examination (i.e., a medical doctor). The paper and electronic claims folder must be provided to the examiner, who must indicate on the examination report that he/she reviewed these records. The examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the service-connected left knee disability aggravates the right knee disability-that is, chronically worsens it? If the answer is yes, the examiner is asked to specify the permanent, measurable increase in severity of the right knee that is due to the service-connected left knee disability. The examiner is asked to provide a full explanation for any opinion rendered. If the examiner finds that an examination is needed to render the requested opinion, the AMC/RO should arrange the examination. 2. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities (as listed in a January 2008 rating decision) The examination report must include a complete rationale for all opinions and conclusions reached. 3. After completion of all of the above, readjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. 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). _________________________________________________ A. C. MACKENZIE 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).