Citation Nr: 1752470 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-13 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran performed active duty training from February 28, 2006 to June 9, 2006, active duty from January 2007 to June 2008, and active duty for training from October 2009 to January 2010. This appeal to the Board of Veterans' Appeals (Board) is from April 2009 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2013, the appellant testified at a Video Conference hearing before the undersigned. The transcript of that hearing is of record. These matters were previously remanded by the Board in June 2014 and November 2016. As discussed below, those remand directives have yet to be satisfactorily accomplished. As such, a remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2014, the Board remanded the case finding that additional evidentiary development was necessary before the claims could be properly adjudicated. The Board directed the RO to "contact the Spartanburg VA physician (Dr. Mohammad Khan) who prepared the April 2013 letter, and request clarification as to what medical evidence was relied upon in reaching the stated conclusions." The RO was to "refer the appellant's claims file to the 2012 VA examiner for an addendum opinion... [and] ... ask the 2012 VA examiner to comment on the April 2013 opinion from the Spartanburg VA physician." The instructions further stated that "the 2012 examiner should specify whether he agrees or disagrees with the April 2013 opinions and explain the basis for any agreement or disagreement." Similar instructions were included in the November 2016 remand. The Board directed the RO to "contact the Spartanburg VA physician (Dr. Mohammad Khan) who prepared the April 2013 letter and request clarification as to the medical evidence relied upon in reaching the conclusions in that opinion". Importantly, the Board also directed the RO that "If the physician is unavailable or unwilling to provide such an opinion, note the attempts to contact and reasons for failure in the file." A review of the claims folder, however, reveals no evidence documenting any attempt by the RO to contact Dr. Khan for clarification of his April 2013 opinion. "[A] remand by ... the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271. As such, compliance with the terms of the November 2016 remand is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Accordingly, the case is REMANDED for the following action: 1. Contact Dr. Mohammad A. Khan, of the Spartanburg, South Carolina VA Community Based Outpatient Clinic who prepared the April 2013 letter, and request that he fully clarify and identify the medical evidence relied upon to reach the conclusions offered in that letter. Dr. Khan's workplace address is contained in the file, the Veteran is still seeing him for treatment and he is a VA employee. If Dr. Mohammad Khan is unavailable or unwilling to provide such clarification, the RO must document all attempts to contact him, and reasons for any failure, in the file. 2. Provide the Veteran copies of the previous two remand directives related to Dr. Khan and request that the Veteran also personally request the necessary a clarifying opinion from Dr. Khan himself. The medical evidence which Dr. Khan utilized to form his 2013 opinion should be identified and Dr. Khan should fully explain why that evidence supports the opinions offered. 3. After the foregoing and any other required development has been completed, the AOJ must review the file to ensure that it is in complete compliance with these remand directives. The AOJ must ensure that correspondence from Dr. Khan, or evidence of multiple attempts to contact him, are documented in the file. If this information is missing, the AOJ must implement corrective procedures at once. 4. Thereafter, the AOJ must readjudicate the claim of entitlement to service connection for respiratory and bilateral knee disorders. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should be returned to the Board for further consideration, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).