Citation Nr: 1326394 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-06 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for diabetes mellitus (DM). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for prostate cancer. 5. Entitlement to service connection for bilateral knee disorder, to include as secondary to bilateral compartment syndrome. 6. Entitlement to an evaluation in excess of 20 percent for service-connected left shoulder rotator cuff tendonitis (left shoulder disorder). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION 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 Veteran served on active duty from September 1971 to January 1992. The Veteran testified before the undersigned sitting in Washington, D.C. in September 2010, and a transcript of the hearing is on file. In September 2011, the Board of Veterans' Appeals (Board) denied service connection for bilateral carpel tunnel syndrome, bilateral ankle disability, and a spine disability; the Board also remanded the issues listed on the above title page to the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO) to obtain VA nexus opinions and a current evaluation of the Veteran's service-connected left shoulder disorder. In November 2012, the Board remanded the claim for additional development. 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 In the case of 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 a November 2012 Board remand, the AMC/RO was asked to obtain specific medical opinions as to whether each of the disabilities in question was at least as likely as not incurred in or aggravated by service. It was specified that: "[t]he claims folder, a copy of this remand, and all records on Virtual VA will be made available to the health care provider for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed." Since the November 2012 Board remand, numerous VA outpatient treatment records have been attached to the Veteran's Virtual VA file. Additional VA medical opinions were obtained in February 2013 and April 2013. However, the examiner did not indicate that they had reviewed the Veteran's Virtual VA file. The only indication is that they reviewed the claim file. Therefore, the Board cannot be sure that the examiner indeed reviewed the numerous records contained in the Veteran's Virtual VA file. Accordingly, the opinion does not comply with the November 2012 remand orders. Additionally, the Board finds that the medical opinions provided regarding the diabetes, hypertension and prostate cancer are inadequate. Indeed, the examiner, in regards to each of these disabilities, appears to rely primarily, if not solely, on the absence of the claimed disabilities in service. However, the absence of in-service evidence of a claimed disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) and Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly a new medical opinion is needed, this time, by a different VA examiner. Finally, the Board notes the Veteran submitted additional evidence in support of his appeal after the most recent supplemental statement of the case. He did not submit a waiver of review by the Agency of Original Jurisdiction. Accordingly, a supplemental statement of the case must be issued. Accordingly, the case is REMANDED 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 AMC/RO should forward the claim file to an appropriate VA examiner, but one different than the one who conducted the November 2011 examination and who provided the February 2013 and April 2013 opinions, and request that they review the claim file and Virtual VA file, and provide specific opinions on whether each disability in question was at least as likely as not incurred in or aggravated as a result of service; this opinion should include, in the case of service connection for knee disability, whether it was at least as likely as not causally related to the service-connected bilateral compartment syndrome. The following considerations will govern the opinions: a. The claims folder, a copy of this remand, and all records on Virtual VA will be made available to the health care provider for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. b. After review of the claims files, the reviewer must discuss whether each relevant disability is at least as likely as not causally related to service, to include whether it was incurred as a result of service or, if preexisting service, was aggravated beyond normal progression thereby. With respect to the issue of service connection for a bilateral knee disability, the reviewer must also discuss whether the Veteran has a current knee disorder separate from his service-connected bilateral compartment syndrome that is at least as likely as not either secondary to service or to the bilateral compartment syndrome. In all conclusions, the opinion must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, the reviewer should so state. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) c. If the reviewer responds to the above inquiry that he or she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. In other words, the reviewer must clearly identify precisely what facts cannot be determined, [i.e.] whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. d. If it is determined that a current examination is needed in order to provide the requested opinion, an examination will be conducted and the Veteran must be notified prior to the examination of the consequences for failure to appear at the scheduled examination. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail and correlated to a specific diagnosis. The report prepared must be typed. 2. After the above has been completed, the AMC/RO should review the claim file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 3. Thereafter, the AMC/RO must readjudicate the issues of entitlement to service connection for headaches, diabetes mellitus, hypertension, prostate cancer, and a bilateral knee disability, as well as the issue of entitlement to an evaluation in excess of 20 percent for service-connected left shoulder disorder, based on all of the evidence of record. If any of the benefits sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and must be afforded an appropriate opportunity to respond. 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). _________________________________________________ N. RIPPEL 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).