Citation Nr: 1322529 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 03-01 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to March 1971. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision that, in pertinent part, denied entitlement to service connection for a bilateral knee disability; and from an October 2005 rating decision that, in pertinent part, denied entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. In August 2008, the Veteran testified during a hearing before a former Veterans Law Judge. A transcript of the hearing is of record. In January 2009, July 2010, July 2012 and April 2013, the Board remanded the matters for additional development. In May 2012, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge that conducted the August 2008 Board hearing and that he had the right to another Board hearing. To date, a response to the Board's May 2012 letter has not been received. The issue of entitlement to service connection for sleep apnea was previously referred by the Board in the July 2012 and April 2013 remands. The issue is yet to be 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 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 Veteran seeks entitlement to service connection for a bilateral knee disability, and to a total disability evaluation based on individual unemployability due to service connected disorders. He argues that he currently has a bilateral knee disability due to an injury to the knees while serving on board the U.S.S. Enterprise (CVN-65). He has also argued that his bilateral knee disability is secondary to his service connected lumbar disability. The record reflects that the appellant has been diagnosed with degenerative joint disease of the knees. After a careful review of the claim file, the Board finds that, unfortunately, the claims must be remanded one more time for additional development prior to deciding the claims. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In the July 2012 remand, the Board requested that an opinion addressing whether the Veteran's bilateral knee disability was aggravated by his service connected lumbar disease, be obtained. The Veteran was afforded a VA examination in August 2012. At the time, the examiner provided an opinion stating that "[the] Veteran's knees are more likely than not due to generalized de-conditioning, obesity, and genetics. There is no association at all between his service connected back condition and his knees. His knee condition is more related to his age, body habitus and genetics. The knees are not aggravated by the back condition." In the April 2013 remand, the Board found the August 2012 opinion to be inadequate and requested that the examiner who conducted the examination provide a reasoning as to why the Veteran's bilateral knee disability was not aggravated by the service connected lumbar spine disability. The examiner was specifically asked to comment on the January 2007 chiropractor's opinion. A complete rationale for the opinion was requested. An additional opinion was obtained in May 2013. Unfortunately, the opinion does not provide the requested rationale and does not adequately discuss the January 2007 chiropractor's opinion. Indeed, in the May 2013 opinion, the examiner appears to be focused on a belief that the Veteran's reported symptoms are not commensurate with the objective physical findings. The examiner has yet to discuss in any way how, if the Veteran's knees are more likely than not due to generalized de-conditioning, obesity and body habitus, that the physical restrictions due to the service connected lumbar spine disability have not contributed to the obesity and general de-conditioning and therefore the knee disability. The Board again notes that VA outpatient treatment records of July 2012 note the Veteran was seen at the pain clinic for back pain which affects his gait including the need for a wheelchair on occasion and the use of a cane on a regular basis. Moreover, rather than discussing the January 2007 chiropractor's opinion, the examiner simply invited the chiropractor to submit additional argument. The Board finds the May 2013 opinion to be inadequate and not in compliance with the Board's remand of April 2013. Accordingly a new opinion must be obtained from a different VA examiner. Regarding the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, the Board finds that this claim is inextricably intertwined with the claim for service connection for a bilateral knee disability, as well as the referred issue of entitlement to service connection for sleep apnea. As such, the Board must withhold its decision on this particular claim until the development regarding the service connection claim for these disorders has been completed. Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is REMANDED for the following action: 1. The RO must provide the Veteran appropriate notice as required under the Veterans Claims Assistance Act of 2000 (VCAA) with respect to his claim of entitlement to service connection for sleep apnea. 2. After affording the appellant a reasonable period of time to respond to the VCAA notice, and after fulfilling VA's duty to assist the RO must adjudicate the claim of entitlement to service connection for sleep apnea. The Veteran is hereby informed that the Board cannot exercise appellate jurisdiction over this claim in the absence of a timely substantive appeal. 3. The RO/AMC must request a new VA medical opinion from an orthopedic physician and ask that she/he opine whether it is at least as likely as not that the Veteran's bilateral knee disability is caused by or aggravated by the service connected lumbar spine disability. In particular, the orthopedic physician must comment on the January 2007 opinion from the Veteran's chiropractor, T.W.D, D.C. The orthopedic physician must also comment on the August 2012 VA examiner's opinion that the Veteran's bilateral knee disability is likely caused by, among other things, body habitus, obesity and generalized de-conditioning, and whether any of these conditions are caused by the service connected lumbar spine disability. The orthopedic physician must be provided with the claims files and access to the Veteran's Virtual VA file must be provided. The orthopedic physician must state that a review of the paper and Virtual VA file has been conducted. A complete rationale for any opinion rendered must be provided. 4. After ensuring that the requested action is completed, the RO/AMC must readjudicate the claims on appeal. If the benefits sought are not fully granted, the RO/AMC must furnish a supplemental statement of the case before the claims file is returned to the Board, 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). _________________________________________________ DEREK R. BROWN 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).