Citation Nr: 1601022 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 12-27 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from July 2007 to May 2009. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for a bilateral knee disability. The Board remanded the claim for a bilateral knee disability in December 2014. Thereafter, a July 2015 rating decision granted service connection for right knee patellofemoral syndrome. A July 2015 supplemental statement of the case (SSOC) denied service connection for a left knee disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The December 2014 remand requested that the Veteran be provided an examination to determine the nature, extent and etiology of any disability of the bilateral knees that may be present, to include bilateral knee strains. The examiner was specifically requested to address the Veteran's lay statements regarding in-service symptoms and post-service continuity of symptoms, the fact that his available service treatment records were incomplete, and the fact that he sought VA outpatient treatment for knee pain approximately 6 months after separation. The Veteran was provided a VA examination of the bilateral knees in May 2015. In the corresponding VA Disability Benefits Questionnaire (DBQ), the examiner opined that the Veteran's right knee disability was at least as likely as not related to active duty. The examiner did not provide any medical opinion for the Veteran's left knee. In a June 2015 addendum, the same VA examiner provided the opinion that the Veteran's left knee was not service-related. The examiner offered no rationale or explanation. In a July 2015 DBQ, the same VA examiner provided that the condition claimed was less likely as not incurred in or caused by the in-service injury, event or illness. The rationale was that "[b]ased on my exam i [sic] do not have sufficient evidence to inculcate the left knee." The Board finds that these medical opinions are wholly inadequate. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The examiner failed to address the Veteran's lay statements regarding in-service symptoms and post-service continuity of symptoms, the fact that his available service treatment records were incomplete, and the fact that he sought VA outpatient treatment for knee pain approximately 6 months after separation, despite being specifically requested to do so. In light of the foregoing, the Board finds that the development requested by the Board's December 2014 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Moreover, once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Forward copies of all pertinent records from the Veteran's eFolders to the examiner who conducted the May 2015 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. Following a review of the relevant medical evidence, the medical history (including that set forth above), and the results of the May 2015 VA examination, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current left knee disability that may be present is causally related to the Veteran's active duty. The examiner must address the Veteran's lay statements regarding in-service symptoms and post-service continuity of symptoms. Dalton, supra. The examiner must also address the fact that the Veteran's available service treatment records are incomplete, and he sought VA outpatient treatment for knee pain approximately 6 months after separation. The examiner is requested to provide a rationale for any opinion expressed. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).