Citation Nr: 1334892 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-35 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from April 1992 to September 1992. He thereafter served with a reserve component until approximately March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded this case in May 2011. Unfortunately, for the reasons described below, the claim must be remanded again. 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 Board remanded this case in May 2011 noting that the record showed that the Veteran injured his right knee while running in October 1992, following a period of active duty training. He underwent arthroscopic surgery to repair his injury in December 1992 and has since been diagnosed with right knee arthritis. Reserve component records starting in approximately 1994 show that the Veteran was repeatedly placed on physical profiles because of problems caused by his right knee. The Board's remand directives noted that a VA examination and opinion should be provided to address whether the Veteran's right knee injury was aggravated during his active duty training in 1994. The examiner was to specifically consider the physical profiles the Veteran was placed on during his active duty training. In January 2012 a VA examination was provided. The examiner noted that the Veteran injured his right knee while off duty in September or October 1992. The examiner thus found that "it is less likely as not that the [Veteran's] current right knee condition was caused by, resulted from or was permanently aggravated by his military service." The examiner noted that the Veteran's injury was sustained while not on military duty and that he currently had a mild disability. However, the examiner did not discuss the Veteran's physical profiles he was placed on during his active duty training in 1994, as directed by the Board's remand. The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the VA physician who provided the examination and opinion in January 2012, if available, to ask for a supplemental opinion. If this physician is unavailable, then the appellant should be afforded another VA examination by an orthopedist. The claims file should be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims file. All indicated tests and studies deemed appropriate by the examiner, including x-rays, must be accomplished and all clinical findings should be reported in detail. After a review of the claims file and an examination of the appellant (if previous physician unavailable), the examiner should provide answers to the following questions: (a) What are the diagnoses of all of the appellant's current right knee disorder? (b) As to each identified right knee disorder, is it at least as likely as not that it was aggravated by his reserve component service? (c) If aggravation is present, the examiner should provide an opinion, to the extent possible, as to the approximate level of right knee disorder present (i.e., a baseline) before the onset of the aggravation. Note 1: In providing answers to the above questions, the examiner should comment on the physical profiles found in the reserve component records. Note 2: In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of 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 weighs against the claim. Note 3: The examiner is also advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. 4. Thereafter, the RO/AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal including the laws and regulations governing aggravating an injury while performing active duty for training and while performing inactive duty training found at 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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. 2013). _________________________________________________ K. PARAKKAL 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) (2013).