Citation Nr: 1635656 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 13-35 961 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for right knee osteoarthritis (claimed bilateral knee condition). 2. Entitlement to service connection for left knee patellofemoral syndrome (claimed bilateral knee condition). 3. Entitlement to service connection for thoracic and lumbar spondylosis claimed back condition). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from March 1997 to January 2001 and from June 2008 to September 2008. This claim originally came to the Board of Veterans' Affairs (Board) from a June 2011 rating decision issued by the RO. The Board remanded the issues on appeal in December 2015 for additional development of the record. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record in a July 2016 application for compensation based on unemployability, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran has asserted entitlement to service connection for a right knee disability, left knee disability, and a back disability. The AOJ tried to schedule the Veteran for examinations but the Veteran failed to report for the examinations. In correspondence received at the RO in July 2016, the Veteran reported that he never received any notification (either by mail or phone call) from the Regional Office regarding any scheduled examinations. He requested that he be rescheduled for the examinations. The Board finds that the Veteran should be given another opportunity to report for the VA examinations to evaluate his disabilities claimed on appeal. The Veteran is reminded that the duty to assist is not a one-way street. He cannot passively wait for help in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). If the Veteran fails to cooperate with VA's efforts to assist him with the factual development of his claims, his claims will be evaluated on the evidence of record. 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 requested.) 1. The AOJ is requested to schedule the Veteran for an orthopedic examination in order to determine the nature and etiology of his back disability and his bilateral knee disabilities. The claims file must be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. The examiner is advised that he or she must review all electronic filings. However, the examiner's attention is called to the following: The Veteran had complaints of back pain and bilateral knee pain during his deployment to Iraq with the National Guard. The Veteran has been diagnosed with thoracic and lumbar spondylosis, left knee patellofemoral syndrome and mild right knee osteoarthritis at his VA examination in April 2011. However, the examiner erroneously stated that there were no complaints of back pain or bilateral knee pain in service. However, a review of his treatment notes show that the Veteran was deemed non-deployable by the orthopedic department. In July 2008, the Veteran was diagnosed with bilateral stress changes in the knees, asymmetric stress changes in the right foot and ankle that were possibly caused by a compensatory gait for left sided pain. The Veteran's service treatment notes that he has been involved in several accidents that were not during active duty, with the most recent one in August 2007. In August 2008, during a pre-deployment health assessment, the Veteran complained of back pain and physical pain in his legs and back. The Veteran reported to the Inspector General that he had four car accidents between 1996 and 2007 and suffers from back pain among other complaints. During his mobilization training he stated that he began having extensive pain. After reviewing the entire record and examining the Veteran, the examiner is asked to address the following: a. Provide a current diagnosis of all the Veteran's orthopedic disabilities. b. Provide an opinion as to whether his back disability is etiologically related to service. c. If the answer to b is no, then the examiner is asked to provide an opinion as to whether the Veteran's back was aggravated by active military service. The examiner is asked to specifically comment on the Veteran's complaints of back pain during his mobilization period in 2008. d. Provide an opinion as to whether bilateral knee disabilities are etiologically related to service. The examiner is specifically asked to comment on the Veteran's diagnosis in service of bilateral stress changes of his knees. e. If the answer to d is no, then the examiner is asked to provide an opinion as to whether the Veteran's bilateral knee disabilities are related to or aggravated by his service-connected left shin splint disability or from his active military service. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. 2. The Veteran must be given adequate notice of the date and place of the requested examinations. A copy of all notification letters (and the address where the notice was sent), sent to the Veteran from the VA medical facility scheduling his examinations must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2015). 3. After completing all indicated development, the AOJ should readjudicate the claims on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ Vito A. Clementi 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).