Citation Nr: 1341498 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 04-28 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral knee disability with degenerative arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for a bilateral knee disability. The Veteran presented testimony before a Decision Review Officer (DRO) at the RO in September 2004. The Veteran testified before the undersigned at a September 2006 Travel Board hearing. Copies of the transcripts are of record. In a May 2007 decision, the Board denied service connection for a bilateral knee disability with degenerative arthritis. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). By January 2009 Order, the Court vacated the Board's May 2007 decision and remanded the matter to the Board for compliance with instructions contained in a Joint Motion to Remand (JMR) of the parties. The case was returned to the Board in March 2010, at which time, it was remanded for further appellate action, including providing the Veteran with adequate notice, attempting to obtain the Veteran's complete service treatment records, and obtaining VA treatment records. The case was returned to the Board again in February 2012, at which time, the Board again denied service connection for a bilateral knee disability with degenerative arthritis. Once again, the Veteran appealed the denial to the Court. By August 2012 Order, the Court vacated the Board's February 2012 decision and remanded the matter to the Board for compliance with instructions contained in a Joint Motion to Vacate and Remand (JMVR) of the parties. The Board most recently remanded the claim in August 2013 to provide the Veteran with an additional VA examination. The RO issued a supplemental statement of the case in November 2013, and the appeal is again before the Board. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In the most recent August 2013 BVA remand, the Board noted that in the August 2012 JMVR the parties agreed that the November 2011 VA examiner's negative opinion, which was used to deny the Veteran's claim in February 2012, was inadequate. It was determined to be inadequate because it was based on the inaccurate factual premise that the Veteran had injured only his right knee in service. As was noted in the JMVR, contrary to the examiner's finding, a review of the Veteran's service treatment records reveals that he injured both knees during service. See JMVR at 2. The Board, in August 2013, remanded for a new VA examination which considered an accurate history of the Veteran's in-service injuries. A review of the most recent September 2013 VA examination reflects that this was not completed. In the September 2013 VA examination, the VA examiner once again only noted a medical history which consisted of the Veteran injuring his right knee in service while playing football and that the Veteran now has bilateral arthritis. The VA examiner once again did not mention the Veteran's in-service treatment for his left knee as specifically noted in the August 2012 JMVR. The Board is obligated by law to ensure that the RO complies with its directives; 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. Stegall v. West, 11 Vet. App. 268 (1998). As the examiner did not consider all of the Veteran's history or complaints, his negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, on remand, the Veteran should be accorded a pertinent VA addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner(s) who conducted his VA examination in September 2013, or to a qualified medical professional if that examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The examiner should review the claims folder and note such review in the examination report or an addendum. The VA examiner should specifically note all of the Veteran's in-service treatment for both his right and left knees. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current right knee disorder, including degenerative arthritis, is etiologically related, in whole or in part, to the Veteran's active service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current left knee disorder, including degenerative arthritis, is etiologically related, in whole or in part, to the Veteran's active service. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. The VA opinions must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures. 3. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). (CONTINUED ON NEXT PAGE) _________________________________________________ F. JUDGE FLOWERS 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).