Citation Nr: 1332371 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-33 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral hip disorder. 3. Entitlement to service connection for a bilateral shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran failed to appear for a scheduled video-conference hearing before the Board in February 2009. In July 2011, the Board remanded the issue for further development. The Board notes that the issues of entitlement to service connection for left ear hearing loss and tinnitus were also originally developed for appellate review. In an August 2012 rating decision service connection was granted for both disabilities. As a result, those issues have been resolved and are not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board's previous remand noted that the issue of entitlement to service connection for peripheral neuropathy had been raised by the record and therefore referred this issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. It does not appear, however, that there is AOJ consideration of this previously referred issue. Consequently, the Board again refers this issue 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 While further delay is regrettable, the Board observes that additional development is still required prior to adjudicating the Veteran's claims for service connection for bilateral knee, hip and shoulder disorders. In this case, the Veteran has alleged that he has arthritis of the bilateral knees, hips and shoulders resulting from his in-service duties as an ammunition technician. Specifically, the Veteran contends that the arthritis in these joints is the result of hand-carrying "tons of rounds" of ammunition and firing components during live firing exercises. The Veteran's service treatment records fail to reflect complaints of or treatment for knee, hip or shoulder injury, but he was treated for a right groin condition which incurred while attempting to lift heavy ammunition in February 1987. The Board notes that the Veteran is competent to report occurrences which he experienced. Moreover, the Veteran's contentions are commensurate with his military occupational specialty as an ammunition technician. In July 2011, the Board remanded these claims for a VA examination and medical opinions to determine the nature and etiology of any knee, hip and/or shoulder disorder(s) that may be present. The Veteran underwent a VA examination in September 2011, however, the Board finds that the VA examiner's opinions are inadequate. The VA examiner determined that the Veteran had arthralgia of the bilateral knees, hips and shoulders and concluded that each of the claimed conditions was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that the service treatment records are silent for each of the claimed disabilities. The examiner did not provide any further discussion. As noted above, the Veteran is competent to report occurrences that he experienced as an ammunition technician during service. Moreover, the September 2011 VA examination report reflects the Veteran's assertions of hip pain both during service and following service as well as his reports of chronic knee and shoulder pain following his discharge from service. The VA examiner did not address any of the Veteran's assertions. The Board had also requested that if arthritis in any of the Veteran's knees, hips or shoulder is not diagnosed, the VA examiner should attempt to reconcile this with the June 2006 and September 2006 VA treatment records which diagnosed the Veteran with arthritis in these joints. The September 2011 VA examiner did not find that the Veteran had arthritis of the knees, hips or shoulders but did not reconcile the current diagnoses with the June and September 2006 VA treatment records. In light of the above noted deficiencies, the Board finds that further VA examination is warranted. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the complete claims file, to include a copy of this remand, to the September 2011 VA examiner. Prior to drafting the opinion, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay assertions. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide opinions as to whether it is as least as likely as not that current knee, hip and shoulder disabilities are the result of a disease or injury in service as opposed to it being more likely the result of some other cause or factors. In so doing, the examiner should comment on the Veteran's contentions of having chronic knee, hip and shoulder pain as a result of carry "tons of rounds" of ammunition and firing components during live firing exercises as an ammunition technician during service. The examiner is advised that 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 a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If arthritis in any of the Veteran's knees, hips and or shoulders is not diagnosed, the VA examiner should attempt to reconcile this with the June and September 2006 VA treatment records which diagnosed the Veteran with arthritis in these joints. If the examiner determines that the Veteran needs to be re-examined prior to offering the requested opinions, he should be so scheduled. 2. The RO must notify the Veteran that it is his responsibility to report for an examination if one is scheduled for him and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).