Citation Nr: 1752844 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-00 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for right lower extremity disability, to include the hip, thigh, and knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1997 to January 1998 and on active duty training from August 1976 to December 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In October 2016, the Veteran testified at a Video Conference hearing before the undersigned; a transcript of which is associated with the record. In March 2017, the claim was remanded for additional evidentiary development, to include a VA examination and to locate potentially outstanding records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted by the Veteran's representative in September 2017, the Veteran has not been scheduled for, nor has undergone, a VA examination for his right lower extremity as was directed in the March 2017 remand. In March 2017, the Board requested: a VA medical evaluation; further evidentiary development, to include any outstanding military personnel records, including any line of duty determination regarding an April 2001 incident; and a readjudication of the right lower extremity claim. The Board observes that none of these directives were performed prior to the case being recertified to the Board. The Board is obligated by law to ensure that the RO complies with its directives. The Court of Appeals for Veterans Claims (Court) has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, this matter must be remanded. The Board notes that pursuant to the last remand the Veteran, in June 2017, sent VA a list of his treating providers, as well as additional medical documentation, to include a medical treatise. While he provided treatment records for most of the providers listed, it appears that he did not provide records from Lackland Air Force Base Employee Health Clinic. As such, remand is necessary to obtain these medical records. Regarding the other provider names and addresses, the Veteran did not indicate any dates of treatment, and as such the Board assumes that he provided all intended evidence regarding same. The Board further observes that it appears that the Veteran made a Department of Labor claim for a work-related right knee injury in June 2015 [with a surgery scheduled for same in November 2015]; however, there is no evidence to show that VA attempted to obtain these records. As such, further development is necessary to obtain these records. Finally, the Board observes that the Veteran did not receive authorizations to release outside medical information to VA, so that VA may assist the Veteran in obtaining these records. As such, the RO is requested to provide the necessary authorizations to the Veteran to assist him in developing his claim. Accordingly, the case is REMANDED for the following action: 1. Please request the Veteran to identify all outstanding treatment records of his lower right extremity since leaving service from VA and non-VA providers. With respect to non-VA providers, he is requested to either provide the outstanding records or provide the necessary authorizations of all medical care providers, in particular: a. Treatment for a work-related right knee injury, including from Lackland Air Force Base's Employee Health Clinic, Wilford Hall, 2200 Bergquist Dr. JBSA Lackland, TX 78236. b. Treatment records regarding November 2015 right knee surgery. 2. Please request the Veteran provide the records or provide the necessary authorizations to obtain all records with respect to the Veteran's Workers Compensation Claim with the United States Department of Labor, including those related to the Veteran's June 2015 claim for a work-related right knee injury. 3. Please also obtain any outstanding military personnel records, to include a line of duty determination for the April 2001 PT injury. If additional records are not available, or the search for any such records otherwise yields negative results, that fact should be clearly documented in the claims file. 4. After completion of the above, please arrange for the Veteran to be scheduled for a VA examination, to respond to the following questions: a. Please identify, by diagnosis, the Veteran's right lower extremity disabilities diagnosed since this claim was filed in March 2008, including degenerative joint disease of the right knee. b. Is it at least as likely as not that the Veteran has had any residuals of right gluteal and hamstring strain in service since March 2008? Please take as fact that the Veteran had a right gluteal and hamstring strain in service in 2001. c. Is it at least as likely as not that the Veteran has a right lower extremity disability due to an incident in service when he struck his head on the underside of a truck's door? d. Does the Veteran have any scarring on his right hip associated with his November 2004 bone graft? If so, please describe the scar. e. Is it at least as likely as not (a 50 percent or greater probability) that each such disability found in (a), including osteoarthritis of the hip and knee, began in (or is otherwise related to) the Veteran's military service? Please consider and discuss as necessary the right gluteal and hamstring strain noted in service in 2001; the incident in service in 1992 when he struck his head on the underside of a truck door (which he reports may have led to his right lower extremity symptomatology); the intercurrent work-related injuries involving the right knee in July 2015 and June 2017; and the medical treatise the Veteran provided in June 2017. f. Is it at least as likely as not that any disability found in (a) was caused by a service-connected disability? Please consider and discuss as necessary evidence that the Veteran had a bone graft of the hip (side unclear) as part of surgical treatment for his service-connected cervical spine disability; and the medical treatise the Veteran provided in June 2017 regarding spinal stenosis, spondylosis, spondylolisthesis, and leg pain and numbness. g. Is it at least as likely as not that each such disability found in (a) was aggravated by a service-connected disability? Please consider and discuss as necessary the medical treatise provided by the Veteran in June 2017 regarding spinal stenosis, spondylosis, spondylolisthesis, and leg pain and numbness. The examiner does not need to identify or test for service-connected right lower extremity radiculopathy associated with spondylosis, degenerative arthritis, and IVDS. The claims file should be made available to and reviewed by the examiner. All indicated tests and studies should be undertaken. The examiner must explain the rationale for all opinions rendered, citing to supporting factual data and/or medical literature, as appropriate. 5. Finally, please readjudicate the claim. If the claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. C. GRAHAM 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) (2016).