Citation Nr: 1626549 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 10-33 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of from an April 2013 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In February 2015, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). When this issue was most recently before the Board in March 2015, it was remanded for additional development and adjudicative action. The case has now been returned to the Board for further appellate action. The Board acknowledges that the Veteran has also initiated an appeal with respect to the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities; however, the Board's review of the record reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on the claim, and has not certified this issue for consideration by the Board. In addition, this issue was neither identified nor addressed by the Veteran's representative as an issue before the Board in the April 2016 brief provided by the representative. As such, the Board will not accept jurisdiction over this issue at this time, but this issue will be addressed by the Board at a later date, if it remains at issue. REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim is decided. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2015 remand, the Board instructed the RO or Appeals Management Center (AMC) to afford the Veteran a medical examination and obtain a medical opinion with adequate rationale concerning the etiology of the Veteran's right knee disability. In the March 2015 remand the Board also explained that a December 2012 medical opinion was insufficient, because the examiner provided an insufficient rationale, and also failed to address the Veteran's competent lay statements. In July 2015 the Veteran underwent another VA examination. Following the examination, the examiner found the Veteran's right knee disability did not originate in service, was not caused by his service-connected right ankle disability, and was not permanently worsened by his right ankle disability. At the outset the Board observes this examiner also wholly ignored the Veteran's lay statements. Rather, in support of his conclusion the examiner stated, "please review the previous knee examination...examiner was unable to relate the veteran's claimed right knee to his service connected right ankle." Though the examiner was specifically informed that the prior December 2012 medical opinion was insufficient, he used that opinion to support his medical opinion. A medical opinion, which relies upon a prior deficient medical opinion for support is akin to a house built upon a cracked foundation, as in time both will inevitably fail. The examiner also indicated the Veteran was diagnosed with compartment syndrome of his knee prior to his total knee replacement, and worked as a telephone installer for 33 years, but did not explain how or why these facts related to his medical opinion. As explained in the Board's March 2015 remand, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing insufficiencies, the Board must unfortunately remand this case for another medical opinion. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, all pertinent evidence of record must be made available to and reviewed by a physician with sufficient expertise, who has not provided a prior opinion in this case, to determine the etiology of the Veteran's right knee disability. Based on the review of the Veteran's pertinent history, the physician should state an opinion as to whether there is a 50 percent or better probability that the Veteran's right knee disability: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right ankle disability; or c) was permanently worsened by his service-connected right ankle disability. In this regard, the examiner must discuss and consider the Veteran's competent lay statements, as well as the statements provided by the other competent lay witnesses, regarding his frequent falls and continued knee symptomatology. The examiner shall assume such statements are credible for purposes of the opinion(s). A complete rationale for all proffered opinions must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion(s). 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). _________________________________________________ Shane A. Durkin 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).