Citation Nr: 1320144 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-08 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a May 2007 decision, the Board reopened and remanded the claim for service connection for a left knee disability. In a February 2009 decision, the Board denied the Veteran's claim for service connection for a left knee disability. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2010, the Court granted a February 2010 Joint Motion for Remand (Joint Motion) and remanded the matter to the Board for compliance with the instructions in the Joint Motion. The Board remanded the claim in November 2010. 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 A preliminary review of the record indicates that this claim requires additional development. The Board's November 2010 remand observed that the February 2010 Joint Motion concluded that a remand was warranted because the Board's February 2009 denial had relied on an October 2008 medical examination that did not fully consider the Veteran's lay statements. The Board requested that the October 2008 VA examiner provide an addendum, or that the Veteran be provided a new VA examination. The examiner was to provide an opinion as to whether it was at least as likely as not that the Veteran's current disability of the left knee had its onset during active service or was related to any in-service disease or injury. The Board requested that the VA examiner specifically address the Veteran's statements of having had continuous left knee pain since service. In the report of an April 2011 record only evaluation, the October 2008 VA examiner reviewed the Veteran's claims file. He expressed the medical opinion that the Veteran's current left knee disability was less likely as not (less than 50/50 probability) caused by or the result of an injury reported while he was in active service. However, the VA examiner failed to address the Veteran's statements of having had continuous left knee pain since service. As a result, this medical opinion is inadequate. As VA did not conduct all necessary development, the development requested by the Board's November 2010 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the VA physician who offered the April 2011 medical opinion, if available, for an addendum. If the physician is unavailable, or if the examiner determines that another examination is warranted, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of the diagnosed left knee disability. Based on the examination and review of the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's current disability of the left knee had its onset during active service or is related to any in-service disease or injury. The examiner should specifically address the Veteran's statements of having had continuous left knee pain since service. A detailed rationale for any opinion expressed should be provided. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). _________________________________________________ M. E. LARKIN 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).