Citation Nr: 1332794 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-16 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served with the Marine Corps, Marine Corps Reserve, and the Army Reserve from November 1974 to May 1988. Specifically, the Veteran served with the Marine Corps Reserve November 1974 to June 1976 and June 1978 to November 1980. The Veteran served on active duty with the Marine Corps from June 1976 to June 1978. In May 1981, the Veteran enlisted with the U.S. Army Reserve and served through May 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared and testified at a hearing held at the RO before the undersigned Veterans Law Judge in January 2010 and the transcript is of record. The case was previously before the Board in May 2010, October 2011 and December 2012, at which times the claims were remanded to allow for further assistance to the Veteran in the development of his claims. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the previous remand in December 2012, the Board acknowledged that the Veteran claims he has severe osteoarthritis in both knees as a result of his duties and various injuries incurred during active duty and active duty for training (ACDUTRA) times during his military service. Specifically, during service the Veteran indicates he frequently rappelled from mountains, buildings and helicopters causing injuries to his joints. The Board noted the instances of treatment for the Veteran's knees as shown in the service treatment records during both active duty and Reserve duty, as well as his non-service treatment for injuries to his knees as seen in his occupational health records and private treatment records. The Board stated that this claim depends on when the Veteran's arthritis was first manifested and whether the arthritis can be attributed to a disease or injury during active duty or ACDUTRA or, in the alternative, attributed to an injury during inactive duty for training (INACDUTRA). It, therefore, requested that the Veteran's periods of active duty ACDUTRA and INACDUTRA be specifically identified. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts 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, 271 (1998). On remand, a request was sent to the National Personnel Records Center (NPRC) to identify the Veteran's periods of active duty, ACDUTRA and INACDUTRA. In February 2013, the NPRC responded that the Veteran had active duty from June 11, 1976 to June 9, 1978; and periods of ACDUTRA from November 25, 1974 to December 4, 1974 and April 17, 1975 to June 10, 1975. The NPRC failed, however, to provide periods of ACDUTRA and INACDUTRA for the Veteran's periods of reserve service with the Marine Corps and the Army after his discharge from active duty in June 1978. As previously indicated, the record shows the Veteran was a member of the Marine Corps Reserve from June 1978 to November 1980. Thereafter, he enlisted with the Army Reserve in May 1981 for one year and reenlisted in May 1982 for six years with a RAD date of May 1, 1988. Service personnel records from his service with the Army Reserve contain records of orders for ACDUTRA but these do not necessarily coincide with the points report dated in September 1987 and covering the period of May 1981 to May 1987. Consequently, the Board finds that there was not full compliance with its request that the Veteran's periods of ACDUTRA and INACDUTRA be specifically identified. Hence remand is warranted for compliance with this prior remand instruction to obtain a list of the specific dates the Veteran served on ACDUTRA or INACDUTRA during service with the Marine Corps Reserve from June 1978 to November 1980 and with the Army Reserve from May 1981 to May 1988. Such additional action on remand should include contacting the Veteran and asking him to provide information regarding his participation in reserve activities with the Marine Corps and Army and any unit and dates served (including documentation to support such information). If the Veteran is not able to provide the dates of his reserve activities and documentation of such, then additional requests should be made to the appropriate federal agency to provide the information and/or documentation requested. If the Veteran's periods of ACDUTRA and INACDUTRA from June 1978 to May 1988 cannot be obtained from or confirmed by such actions, information from the Defense Finance and Accounting System (DFAS) as to when the Veteran was paid for his periods of ACDUTRA and INACDUTRA may provide the information needed, and a request should be made to DFAS for it to search its records for any payments made to the Veteran from 1976 to 1988 related to his reserve service. Furthermore, the Board finds that the VA examination conducted in May 2013 is not compliant with the prior remand's instruction. Initially, the Board notes that the examiner answered the first two questions in that he diagnosed the Veteran to have bilateral knee osteoarthritis. However, in response to the question about the approximate date of the clinical onset of arthritis, the examiner stated the "date of diagnosis" was in 2000. The claims file, however, contains X-ray evidence of degenerative changes of the left knee in 1989 and the right knee in 1996. Consequently, the examiner did not provide an appropriate response to the question of the approximate date of the clinical onset of the osteoarthritis in the bilateral knees. The examiner also failed to respond to the following questions asked with regard to onset within one year of discharge from active duty or whether his osteoarthritis of the bilateral knees was related to any incident incurred during active duty, ACDUTRA or INACDUTRA. In the examination report, the examiner only acknowledged the active duty service treatment notes of injuries to the right knee in 1976 and 1977; however, as previously set forth, the Veteran had injuries after active duty, some during periods of ACDUTRA/INACDUTRA while others not service-related at all, which the examiner did not address. Thus, it is unclear whether the examiner considered the Veteran's periods of reserve service from November 1974 to June 1976 and June 1978 to November 1980 with the Marine Corp Reserve and from May 1981 to May 1988 with the Army Reserve. Given the examiner's failure to fully address the questions set forth in the prior remand, the claims file should be returned to the examiner for him to reconsider his prior opinion and to provide an addendum to his prior medical opinion in which he specifically addresses the questions asked by the Board. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide the following information: a) For the period of your Marine Corps Reserve service from June 1978 to November 1980 (as documented in your service records), did you participate in any reserve activities during this period of reserve service? If so, please identify the reserve unit(s) you were assigned to and the dates of such activities and specify whether it was active duty for training (ACDUTRA) (a.k.a., annual training) or inactive duty for training (INACDUTRA) (a.k.a., monthly weekend training). Also, if you have any documentation demonstrating your reserve activities during this period of time, please provide such documentation. b) For the period of your Army Reserve service, your service records demonstrate you commenced such reserve service on May 1, 1981 for one year and reenlisted on May 1, 1982 for six years; however, they do not provide documentation of when you separated from service with the Army Reserve. Please clarify when you were discharged from the Army Reserve and provide any documentation you may have in your possession regarding such discharge. Also, please provide the dates of such reserve activities and specify whether it was ACDUTRA (a.k.a., annual training) or INACDUTRA (a.k.a., monthly weekend training). Also, if you have any documentation demonstrating your reserve activities during this period of time, please provide such documentation. 2. If the Veteran confirms he participated in Marine Corps Reserve activities during the period of June 1978 to November 1980, and the reserve unit(s) he was assigned to, but is not able to provide any information or evidence relating to the periods of such reserve activities, contact DFAS and ask it to conduct a search for any records demonstrating that the Veteran earned pay from June 1978 to November 1980 in any capacity for a Marine Corps Reserve component and, if possible, to identify the dates the pay covered and what type of duty (i.e., whether ACDUTRA or INACDUTRA). 3. If the Veteran is unable to provide any information or evidence relating to his Army Reserve activities, then contact the NPRC, the U.S. Army Reserve Personnel Center, or other appropriate records center, and request that it conduct a search of its available records and provide documentation showing the Veteran's periods of ACDUTRA and INACDUTRA for the period of his Army Reserve service from May 1981 to the date the Veteran identifies he separated from such service (or at least May 1988). For purposes of such search, it is noted that the Veteran was assigned to the 177th Transportation Company (MdmAmph) located at Camp Pendleton, California. 4. If no information or evidence is obtained in response to the prior request, contact DFAS and ask it to conduct a search for any records that the Veteran earned pay from May 1981 to whatever date the Veteran identifies that he separated from Army Reserve service (or at least May 1988) and, if possible, to identify the dates the pay covered and what type of duty (i.e., whether ACDUTRA or INACDUTRA). 5. After the above development has been accomplished, return the Veteran's claims file to the VA examiner who conducted the May 2013 VA examination and request that he review the Veteran's claims file again, especially the Veteran's service records (both active duty and reserve duty). The examiner should provide an addendum to his prior examination medical opinion. In such addendum, the examiner should specifically respond to the following questions: a) Since the examiner diagnosed the Veteran to have bilateral knee osteoarthritis as a result of the May 2013 examination, based upon the evidence of record (e.g., the X-ray evidence, service records, private treatment records), please indicate the approximate date of the clinical onset (rather than the date of diagnosis) of arthritis in each knee. b) If the onset was after active duty service (i.e., after June 1978), is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran developed arthritis within the first year after his separation from active duty to a compensable degree (i.e., X-ray evidence of arthritis with any objective loss of motion)? c) If the Veteran did not develop arthritis in one or both of his knees within the first year after his separation from active duty, is it at least as likely as not (i.e., at least a 50 percent probability) that either (1) the Veteran has had a continuity of symptoms of osteoarthritis of the knees, either unilateral or bilateral, since his discharge from active duty service; or (2) that his currently diagnosed osteoarthritis is related to any injury, disease or event incurred during his active duty service, any injury or disease incurred during a period of ACDUTRA, or any injury incurred during a period of INACDUTRA? In answering this question, the examiner must consider and discuss the Veteran's in-service repelling duties as well as all service-related injuries (including those incurred during a period of ACDUTRA or INACDUTRA, not just during active duty) versus nonservice-related injuries, diabetes and obesity. The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. The examiner must also reconcile the opinion with the other opinions of record, to include prior VA examinations (November 2010 and January 2012) and private opinions (i.e., Dr. R. and Dr. K,). If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).