Citation Nr: 1603518 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 10-40 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active duty from June 1982 to April 1988 and subsequent periods of active duty training (ADT) and inactive duty training (IDT) in the Naval Reserves. The current matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In July 2012, the Board remanded the appeal to the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claims (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board denied this appeal in a June 2014 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2015, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the June 2014 decision, and remanded the matter to the Board for action consistent with the terms of the JMR. For the reasons set forth below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the JMR, the Parties agreed that the August 2012 VA examination of the Veteran's back is inadequate. The Parties further agreed that, to meet its duty to assist the Veteran in obtaining evidence to substantiate his claim of service connection for a back disability, VA must provide the Veteran with an adequate back examination. The Parties also directed the Board to address the credibility of the Veteran's lay statements regarding knee symptoms present since service and the significance of the findings of knee crepitus in service and during the VA examination. Following further review of the medical evidence of record, the Board concludes that the record currently contains insufficient medical evidence for the Board to comply with this term of the JMR. Another medical opinion regarding the Veteran's bilateral knee disabilities is therefore necessary. For these reasons, the Board must remand these claims to the AOJ so that VA can conduct the necessary development. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran is scheduled for a VA examination to determine the nature and etiology of his back and bilateral knee disabilities. The examiner must review the claims file in conjunction with the examination. The examiner is asked to provide the opinions requested below and must include a rationale to support the opinions provided: (a) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current back condition, diagnosed as degenerative disc disease (DDD), had onset during his active service or was caused by an injury or disease during active service. In the supporting rationale, the examiner must discuss the January 1987 service treatment record diagnosing DDD and questionable spondylosis and must address the September 12, 1987 in-service diagnosis of DDD. Merely listing the January 1987 and September 12, 1987 evidence will not be adequate. (b) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any disorder of either of the Veteran's knees had onset during or was caused by his active service. Prior to providing the opinion, the examiner's review of the claims file must include review of the VA Form 9 signed in September 2010, specifically, the text typed by the Veteran in section 10 of the form addressing his knee disabilities, and the portions of the September 21, 2011 Hearing Transcript in which he testified about his knee disabilities. With regard to the medical opinion(s) that the examiner provides, the examiner must explain the significance of (i) the Veteran's reports that he has been experiencing chronic bilateral knee pain ever since the in-service knee injury, (ii) the findings of knee crepitus during service and during the August 2012 examination, and (iii) any other evidence that the examiner finds relevant to his or her medical opinion. In expressing these opinions, the examiner is hereby advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. Also, a clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Then, readjudicate the claims on appeal. If any benefit sought is not granted, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to reply thereto before returning the case to the Board, if otherwise in order. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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).