Citation Nr: 1645957 Decision Date: 12/06/16 Archive Date: 12/20/16 DOCKET NO. 10-35 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) from June 1966 to October 1966 in the Army National Guard of South Carolina. The appellant had additional service in the U. S. Army Reserve. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously before the Board, in March 2015, when it was remanded for further evidentiary development. It now returns for appellate review, and as discussed below, the Board finds that there not been substantial compliance with March 2015 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the March 2015 Board remand, the appellant requested a hearing before the Board in his August 2010, VA Form 9, substantive appeal; however, in October 2011 correspondence the appellant withdrew his request for a Board hearing. Accordingly the Board considers the appellant s request for a hearing to be withdrawn and the Board may proceed with appellate review. 38 C F R § 20 704 (e) (2015). Additional evidence subsequent to the most recent June 2016 supplemental statement of the case has been received by VA. Specifically, in November 2016, the appellant submitted additional private treatment records, dated in October 2016. The appellant did not waive review by the Agency of Original Jurisdiction (AOJ) of this additional evidence. See 38 C.F.R. § 20.1304(c) (2015). However, as this appeal must be remanded for additional development, the AOJ will have an opportunity to consider the additional evidence in the first instance when the appeal is re-adjudicated after the development requested below is completed. The issue of entitlement to service connection for a skin disability, to include as due to exposure to herbicides, has been raised by the record in a December 2015 and June 2016 statements, but has not been adjudicated by the 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). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND As noted above, the Board finds that the development requested by the Board's March 2015 remand directives was not fully completed. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Id. Thus, in the present case additional development must be conducted. Specifically, in pertinent part, the March 2015 Board remand directed the RO/AMC to schedule the appellant for a VA examination to ascertain the current nature and etiology of any bilateral knee disability. The March 2015 Board remand further directed that the examiner also should also give consideration to the appellant's theory that any knee problems were related to the wear and tear he experienced as a drill sergeant, specifically because he conducted road marches in boots rather than tennis shoes. Pursuant to the March 2015 Board remand, the appellant was provided with a VA knee and lower leg conditions examination in March 2016. The March 2016 VA examiner diagnosed bilateral knee degenerative arthritis and opined appellant's condition was less likely than not related to military service as there was lack of supporting evidence in the claims file and in service treatment records indicating complaints and treatment of the above conditions. A June 2016 VA medical opinion was also obtained. The June 2016 VA examiner stated that based on his review of the medical record, there was no objective evidence that any current knee problem that the appellant had would be due to wear and tear as such would be mere speculation based on the part of the appellant as to any cause and thus not an objective finding but merely subjective. However, such does not address the appellant's contention that his knee disability was due to wear and tear as a drill sergeant in a meaningful way, other than repeating the obvious fact that such is a subjective contention of the appellant. The June 2016 VA opinion did not provide support for a conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, neither the March 2016 nor June 2016 VA opinion addressed the appellant's contention that his knee problems, onset during service, which he is competent to report. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, on remand, another VA opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Also, as noted above, the appellant submitted October 2016 private treatment records from Orthopedic Specialties in Spartanburg, South Carolina, and one record referenced a future appointment scheduled in November 2016, which is not of record. Thus, the Board finds that the appellant should also be afforded another opportunity to submit additional records related to his bilateral knee claim from Orthopedic Specialties, or any other relevant private treatment records, to VA, or complete authorization forms permitting VA to obtain these records on his behalf. All attempts to obtain these records must be documented in the claims file. The appellant and his representative must be notified of any inability to obtain the requested documents. 38 U.S.C.A. § 5103A(b) (West 2014); 38 C.F.R. § 3.159(c)(1) (2015). Accordingly, the case is REMANDED for the following actions: 1. Obtain the necessary authorization from the appellant and then attempt to obtain any records related to private treatment from Orthopedic Specialties, to include in November 2016, or relevant records from any other identified provider. All attempts to obtain these records must be documented in the claims file. The appellant and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, obtain a medical opinion, from an examiner other than the March 2016 or June 2016 examiners, in order to ascertain the nature and etiology of any bilateral knee disability diagnosed during or proximate, to the appeal. The entire claims file should be made available for review, to include a complete copy of this remand. To assist the examiner in addressing the question below, the examiner must be provided with exact periods of any ACDUTRA and/or INACDUTRA service by the appellant. Upon review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed right and/or left knee disability(ies) is/are etiologically related to any documented periods of ACDUTRA and/or INACDUTRA. The examiner also should also give consideration to the appellant's theory that any knee problems are related to the wear and tear he experienced as a drill sergeant, specifically because he conducted road marches in boots rather than tennis shoes and that his symptoms onset during service, as well as his report of having experienced knee problems since service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. In the event that the VA examiner feels that another VA examination is necessary, such should be scheduled, and the appellant should be notified of the time and place of the examination. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the appellant and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).