Citation Nr: 1420006 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 10-11 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities of the feet, ankles, right knee, and sacrum. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas that denied the benefit sought on appeal. The Board remanded the claim for additional development in January 2012. The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing at the RO in April 2011. A transcript of the hearing has been associated with the Veteran's claims file. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, for the reasons discussed below, additional development, with ensuing delay, is required in the instant case. The Board regrets that a remand of this matter will further delay a final decision in the claim on appeal, but finds that such action is necessary to ensure that the appellant is afforded full due process of law. See 38 C.F.R. § 20.1304(c) (2013); Bernard v. Brown, 4 Vet. App. 384 (1993). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim, notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. 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 noted, the claim on appeal was remanded by the Board in January 2012 for an additional VA examination to address the presence, nature, and etiology of any left knee disorder. The requested examination was conducted in February 2012. Although the February 2012 opinion addressed direct causation, the examiner only partially addressed secondary causation, as he failed to provide an opinion on whether any current left knee disability was aggravated by any of the Veteran's service-connected disabilities. See 38 C.F.R. § 3.310 (2013); Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed Cir. 2000). Thus, the opinion was inadequate. Accordingly, the case is REMANDED for the following action: 1. Return the file to the examiner who conducted the February 2012 VA knee and lower leg examination. After review of the record, the examiner must provide an opinion whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's left knee disability was caused or aggravated by a service-connected disability. The examiner should be reminded that service connection is currently in effect for hypertension, diabetes mellitus, bilateral hearing loss, tinnitus, a bilateral shoulder disability, a bilateral foot disability, a bilateral ankle disability, a right knee disability, and residuals of a fractured sacrum. The examiner must provide a detailed rationale for his opinion. The claims folder must be made available to and reviewed by the examiner in conjunction with his opinion, and the examiner should state that the entire claims file has been reviewed. a) In the event that the examiner who conducted the Veteran's February 2012 examination is not available, schedule the Veteran for an appropriate VA examination with another examiner in order to ascertain the nature and etiology of any left knee disability found. The examiner should then express an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any left knee disability was caused or aggravated by the Veteran's service or a service-connected disability. The examiner should be advised that service connection is currently in effect for hypertension, diabetes mellitus, bilateral hearing loss, tinnitus, a bilateral shoulder disability, a bilateral foot disability, a bilateral ankle disability, a right knee disability, and residuals of a fractured sacrum. The examiner must provide a detailed rationale for his opinion. The claims folder must be made available to and reviewed by the examiner in conjunction with the scheduled examination, and the examiner should state that the entire claims file has been reviewed. b) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. c) "Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ T. STEPHEN ECKERMAN Acting 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).