Citation Nr: 1319180 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-37 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran had active service from September 1972 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the Department of Veterans Affairs (VA) Newark, New Jersey, Regional Office (RO), which denied service connection for right knee and left knee disabilities. In June 2008, the Veteran appeared at a hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is in the Veteran's file. In a December 2010 decision, the Board denied the claims and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). A December 2011 Order of the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating and remanding the Board's denial of the service connection claims for a right knee disability and a left knee disability. In March 2013, the Board remanded the appeal for further development. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is, again, REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the March 2013 remand, the Board directed that the Veteran undergo an examination in support of his claim for service connection for right and left knee disabilities. The remand specifically states that the examination report must reflect consideration of both the medical and lay evidence, to include the June 2007 and November 2009 VA examination reports. Although the examination report notes review of the claims file, there is no reference to the June 2007 and November 2009 examination reports in the March 2013 VA examination report. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination with an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to diagnose all right and left knee pathology, if any is present, specifically ruling in or excluding a diagnosis of degenerative joint disease. Then, the examiner is to provide opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that the left and right knee disabilities: (i) had onset in-service or within one year of separation; (ii) are related to the Veteran's period of military service, including an August 1973 right knee treatment; (iii) were caused by a service-connected disability, specifically including degenerative disc disease of the lumbar spine; or (iv) were aggravated by a service-connected disability, specifically including degenerative disc disease of the lumbar spine. The examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements; an August 1973 right knee service treatment record; a March 2006 VA primary care note; and June 2007, November 2009 and November 2012 VA examination reports; a January 2010 VA right knee surgical report; etc.) and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 2. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). These claims 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). _________________________________________________ RONALD W. SCHOLZ 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).