Citation Nr: 1340065 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-24 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), to include as secondary to service-connected bony fragment of the right tibia, and/or pes planus with degenerative joint disease. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected bony fragment of the right tibia and/or pes planus with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran served on active duty from June 1957 to June 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In December 2011, October 2012, March 2013, and June 2013 the Board remanded the appeal for further development, and it again returns to the Board for appellate review. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Veteran, who is currently service connected for bony fragment of the right tibia and for mild bilateral pes planus with degenerative joint disease, seeks service connection for disabilities of the right and left knees, to include on a secondary basis or on the basis of aggravation. In the Board's June 2013 remand, the examiner was specifically directed to address the Veteran's contentions of knee pain beginning in service and that if the examiner found the Veteran's claims of knee pain since service inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner was directed to explain the reasons for that finding. This means that the examiner was required to directly address the Veteran's complaints of chronic knee symptomatology since service. Although the July 2013 opinion did discuss some of the relevant evidence on file, the Board agrees with the October 2013 contention made on behalf of the Veteran that the examiner did not clearly address the Veteran's claims of knee symptoms since service. Rather, the examiner talked generally about a lack of documentation indicating chronicity. The Court has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As indicated above, the Board finds that the RO did not adequately comply with the terms of the Board's June 2013 remand. Id. In light of the above, the Board agrees with the Veteran's representative that the appeal must again be remanded so that an adequate VA opinion as to the etiology of the Veteran's right and left knee patellofemoral syndrome with osteoarthritis may be obtained. Further, given the problems found with the prior opinions, the Board finds that the opinion should be obtained from a specialist if possible. Accordingly, the case is again REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The Veteran's case will be reviewed by a specialist in orthopedics in order to determine the etiology of the Veteran's right and left knee patellofemoral syndrome with osteoarthritis and/or osteopenia. The record must be made available to the reviewer, and the resulting opinion must reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. §§ 3.158 and 3.655 (2013). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. Upon review of the record, the reviewer will address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's current right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, are etiologically a result of a disease, incident, or injury during service? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, are causally or etiologically a result of his bony fragment of the right tibia and osteochondrosis? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability has been chronically aggravated, (i.e., increased in severity beyond its normal progression), as a result of his bony fragment of the right tibia and osteochondrosis? d. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, is causally or etiologically a result of his bilateral pes planus? e. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability has been chronically aggravated, (i.e., increased in severity beyond its normal progression), as a result of his bilateral pes planus? (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 rationale for each opinion advanced must be provided. The reviewer should also state what sources were consulted in forming the opinion. The reviewer is advised that the Veteran is competent to speak to his history of knee pain as pain is a symptom readily observable by lay persons. The Veteran's subjective reports of his medical history as documented in the claims file and at the examinations must be contemplated by the reviewer in forming the opinions. If the reviewer finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the reviewer must explain the reasons for that finding. After completing the above actions, the RO/AMC should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested above has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence and the issues of entitlement to service connection for a right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and entitlement to service connection for a left knee disability, should be readjudicated. If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. 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). This claim 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 (West Supp. 2013). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).