Citation Nr: 1322648 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-18 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from April 1968 to March 1970, and from May 1970 to May 1974. This matter initially came before the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Petersburg, Florida. Following evidentiary development pursuant to an October 2010 remand of this case by the Board, a May 2011 Board decision denied service connection for a left knee disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2011 Joint Motion for Remand (JMR), the Court entered an order in November 2011 vacating the May 2011 Board decision and remanding the case to the Board for compliance with the JMR. The Board later, in March 2012, remanded the case again so that compliance with the JMR could be accomplished. As discussed below, the Board finds that there was not substantial compliance with its March 2012 remand with respect to the issue addressed herein and that it may not therefore proceed with a determination as to this issue at this time. See Stegall v. West, 11 Vet. App. 268 (1998). 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 As noted, the Board most recently remanded this claim March 2012. To this, the Board notes that the Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall, 11 Vet. App. at 271. As such, compliance with the terms of the remand -- not fully and sufficiently accomplished following the March 2012 remand -- is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In a March 2013 written brief, the Veteran's attorney representative brought the attention of the Board to evidentiary defects relating to the most recent medical examination conducted by VA that addressed the current issue on appeal. The examination in question was conducted in November 2012. The Board has considered the contentions of the Veteran's attorney and, upon reviewing the Veteran's claims file and the report of the pertinent medical examination, as well as other pertinent evidence associated with the record, finds that the attorney's contentions raise valid concerns regarding the adequacy of the evidence and that a remand to implement corrective actions to repair these procedural and evidentiary defects is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Specifically, with regard to the instant claim now before the Board for appellate consideration, the Board observes that, pursuant to its March 2012 remand, the following development was requested: 1. Schedule the Veteran for an examination to determine the etiology of any current left knee disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner should note any disability of the left knee and then provide an opinion as to whether there is a 50 percent probability or greater that any such disability is related to the Veteran's military service. The examiner should consider and discuss the complaints of an injury to the left leg shown in June 1971 with a finding on examination of a tender area above the knee on the lateral aspect of the thigh (with the knee described as being within normal limits), and the finding of a lipoma on the left knee in November 1972. The examiner is also requested to address the following (as asserted by the Veteran's attorney): Whether despite any finding of current left knee arthritis being consistent with the Veteran's age, was the left knee arthritis caused or initiated by in-service injury? Whether despite any finding of current left knee arthritis being consistent with the Veteran's age, was the onset of the Veteran's left knee arthritis hastened by any in-service injury? If the Veteran has a large amount of bone growth around the left patella, was this caused by the Veteran's in-service injury? Describe the significance, if any, of the findings of December 2009 X-rays of osteophytes and whether osteophytes were a part of any current arthritic process or whether osteophytes were a separate disability entity and, if the latter, whether the osteophytes were caused by the Veteran's in-service injury. In rendering any opinion, the examiner should consider the Veteran's statements regarding the incurrence of left knee disability in service in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the lack of evidence in the service medical records to provide a negative opinion). A complete rationale should be provided for any proffered opinions. If the opinion, as requested above, cannot be provided without resort to speculation, the examiner should so state and must provide the rationale therefor, including a clear identification of what precise facts cannot be determined. Review of the November 2012 VA examination report, as noted by the Veteran's attorney in March 2013, failed to consider the Veteran's statements "regarding the continuity of symptomatology." The attorney in March 2013 also pointed out that the VA examiner in November 2012 neglected to "provide sufficient rationale with regard to the osteophytes." As noted in the Board's March 2012 remand instructions, the examiner was tasked with responding to the following medical question: "Describe the significance, if any, of the findings of December 2009 X-rays of osteophytes and whether osteophytes were a part of any current arthritic process or whether osteophytes were a separate disability entity and, if the latter, whether the osteophytes were caused by the Veteran's in-service injury." The examiner merely stated "There is no current objective evidence to sustain osteoarthritis diagnosis at this time," and "[b]y itself, osteophytes does not have any clinical significance (cannot be a standalone diagnosis.)" Also, of note, the examiner did not address the cited December 2009 X-ray findings which in fact demonstrated the presence of osteophytes. The Board also finds that remand is necessary because the November 2012 VA examiner essentially noted that the Veteran did not have a left knee disorder at the time of the examination [and thus, while not stated, no basis to link any left knee disorder to the Veteran's period of military service]. However, the Board notes that this same examiner noted the presence of degenerative changes in January 2010 and osteoarthritis in February 2010. Although no diagnosis of a left knee disorder was shown in November 2012, the examiner still failed - even though he was not specifically requested - to provide a nexus opinion addressing the likelihood that any left knee disorder occurring during the period of the claim (the Veteran's claim was received in December 2008) was associated with service, as the requirement of the existence of a current disability for service connection claims is satisfied when a claimant has the disability at the time he files his claim or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, to rectify the above-cited evidentiary defects, the case should be remanded for a new VA opinion concerning the etiology of the Veteran's claimed left knee disorder, based on a complete review of his claims file. The examiner should not only provide a nexus opinion addressing the likelihood of a relationship between the Veteran's military service and any left knee disorder currently diagnosed, but also provide an opinion addressing the likelihood of a relationship between the Veteran's military service and those left knee-related disorders diagnosed during the pendency of the appeal and demonstrated in the clinical records for the period from December 2008 to the present. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC 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. The RO/AMC should arrange for the Veteran's claims file to be reviewed in its entirety by a VA examiner, preferably the one who conducted the November 2012 examination, but otherwise by an appropriately qualified clinical specialist, in order to determine the nature, severity and etiology of any diagnosed left knee disorder(s), to include diagnoses dated at any time during the instant appeal period (commencing in December 2008). All pertinent symptomatology and findings should be reported in detail. Based on a review of the claims file, the examiner should express an opinion as to the following: Is it at least as likely as not that any left knee disorder diagnosed at any time during the instant appeal period (commencing in December 2008) had its onset during service; or, was such a disorder caused by any incident or event that occurred during service. Whether despite any finding of current left knee arthritis being consistent with the Veteran's age, was the left knee arthritis (diagnosed at any time between December 2008 to the present) caused or initiated by in-service injury? Whether despite any finding of current left knee arthritis being consistent with the Veteran's age, was the onset of the Veteran's left knee arthritis (diagnosed at any time between December 2008 to the present) hastened by any in-service injury? If the Veteran had (diagnosed at any time between December 2008 to the present) a large amount of bone growth around the left patella, was this caused by the Veteran's in-service injury? Describe the significance, if any, of the findings of December 2009 X-rays of osteophytes and whether osteophytes (diagnosed at any time between December 2008 to the present) were a part of any current arthritic process or whether osteophytes were instead a separate disability entity and, if the latter, whether the osteophytes were caused by the Veteran's in-service injury. In rendering any opinion, the examiner should consider the Veteran's statements regarding the incurrence of left knee disability in service in addition to his statements regarding the continuity of symptomatology. The examiner is advised the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weights against a causal relationship. The examiner is requested to answer the question posed with use of the "as likely," "more likely," or "less likely" language. A clear rationale for all opinions is necessary - to include providing citations to pertinent factual findings and in-service medical history -- and a discussion of the medical principles involved would be of considerable assistance to the Board. In addition, the examiner must explain the basis for any and all provided opinions. 2. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. Stegall. 3. Following completion of all indicated development, the RO/AMC should readjudicate the issue on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. 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 or by the Court 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). _________________________________________________ MICHAEL MARTIN 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).