Citation Nr: 1618331 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 11-15 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected back disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a) (2). The Veteran had active service with the United States Navy from January 1943 to July 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a July 2013 Board videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In a December 2013 decision, the Board denied the Veteran's claims for entitlement to service connection for a right knee disability, a left knee disability and residuals of testicular and colon cancer (loss of testicle and bowel resection), to include as a result of asbestos exposure. The Veteran appealed the Board's December 2013 decision to the United States Court of Appeals for Veterans Claims (CAVC or the Court). In a July 2014 Order, the Court vacated the portion of the December 2013 Board decision denying service connection for a bilateral knee disability and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The denial of service connection for residuals of testicular and colon cancer was undisturbed. In September 2014 and July 2015, the Board remanded these issues for additional development. The Veteran's physical claims file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The CAVC found in July 2014 that VA and the Board had failed to adequately consider the possibility that the Veteran's service-connected low back disability had aggravated his left and right knee conditions when denying the claims in December 2013. The Board in turn remanded the claims in September 2014 for a VA examination and opinion which addressed this theory. When the matters were returned to the Board in July 2015, the Veteran and his representative challenged the adequacy of the opinions, arguing that the doctor had relied on an absence of documentary treatment records from the 1950s, 1960s, and 1970s to support his negative opinion without considering the Veteran's competent lay statements regarding knee problems during this period, for which he admits he never sought treatment. The Board found the examiner's statements were unclear as to what consideration he had given the lay evidence, and remanded the appeal for clarification. Additionally, the Veteran was asked to supply additional treatment records or releases to permit VA to obtain such, to better inform the examiner's opinion as to the condition of the knees in the 1990's, immediately prior to his surgery. The AOJ requested records or releases in October 2015 correspondence, but the Veteran failed to reply. A new VA examination was conducted in October 2015 as well, and a negative nexus opinion regarding the secondary service connection claim was obtained. Unfortunately, the examiner failed to address the concerns of the Board with the prior examination and opinion. She in fact largely regurgitated the prior examination reasoning in rendering her own opinion, without clearly addressing to what extent the Veteran's reports of knee problems over the decades since his 1940's military service had been considered. The Board simply cannot tell whether the examiners accepted the statements and found them outweighed by medical findings, or ignored them because they were not documented contemporaneously. As clarification on this point was the main purpose of the prior remand, the Board must find noncompliance with that aspect of the remand directives. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, further remand is required, though the Board regrets the additional delay for this Veteran who has waited many years for resolution of his claim. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is required.) 1. Return the claims file to Dr. AK, who conducted the October 2015 examination. If Dr. AK is not available, another equally qualified examiner may be consulted. The examiner must clarify the rationale employed in finding that left and right knee arthritis requiring surgery did not develop until the 1990s. Specifically, the examiner must discuss the Veteran's reports that he was having knee problems for years prior to the 1990s and did not seek treatment. The degree to which such competent statements were accepted and considered by the examiner must be addressed. The Veteran's failure to respond to requests for medical records documenting the status of his knee condition prior to surgery may be considered in weighing the evidence, but if done, the examiner must so state and discuss how any inference affected the rendered opinion. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).