Citation Nr: 1800336 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-26 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left knee condition (claimed as left leg condition). 2. Entitlement to service connection for left ankle condition. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The appellant served on active duty for training service in the U.S. Army from March 2009 to May 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the September 2009 rating decision, the Appellant was denied service connection for a left knee condition and left ankle condition. In December 2014, the Board remanded the this claim for further evidentiary development. That development has not been accomplished. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or Board confers on the claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this instance, substantial compliance has not been met and all the pertinent evidence has not been obtained. The Board finds that a remand is necessary in this case for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets any further delay, additional development is warranted before a decision may be rendered on the remaining issues on appeal. In December 2014, the Board remanded this claim for additional development. However, there has not been substantial compliance with the remand directives. Specifically, the AOJ was asked to obtain and associate the Appellant's private medical records from the private examiner who conducted the Appellant's left knee arthroscopy in 1991 and the medical records from the private examiner who discussed future surgery of the Appellant's left knee disorder. See December 2014 Board Remand. The Board notes that two letters were sent by the AOJ to the Appellant to request the private treatment records. Unfortunately, the letters were mailed to an incorrect address, so the Appellant has not received the requests. If the records are unable to be obtained, a formal finding to that effect should be added to the file. Further, the December 2014 remand directives required that all above development be accomplished prior to the VA examination to determine the nature and etiology of the claimed left knee and left ankle disorders. Therefore, an attempt to associate those additional files and an addendum opinion are warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the Appellant and request the names and addresses of any and all health care providers who have provided treatment for his left ankle and left knee disorders. After acquiring this information and obtaining all necessary releases and authorizations, obtain and associate these records with the claims file, to include and medical records from the private medical examiner who performed the Appellant's 1991 arthroscopy, any left knee surgeries or discussed any left knee surgeries or left ankle injuries. Any outstanding VA medical records should be obtained and associated with the claims file. 2. Upon receipt of all additional records, determination that no additionally records exist or evidence that they are unobtainable, schedule the Appellant for a VA examination to determine the nature and etiology of all current left knee conditions and left ankle conditions. The examiner is to discuss whether it is at least as likely as not that any preexisting tibia fracture or pre-service injury caused the Appellant's left knee condition and/or left ankle condition to worsen in severity during service, and if so, whether the increase in severity is consistent with the natural progression of the disorder(s) or whether the increase represents a permanent worsening or aggravation of the disorder(s) beyond its natural progression. In making these determinations, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service," unless the underlying condition, as contrasted with symptoms, has worsened. The examiner is to determine whether it is at least as likely as not that the Appellant's left knee condition and left ankle condition are related to or caused by his active duty service. The VA examiner is also to consider whether any of the Appellant's current left knee condition and/or left ankle conditions manifested to a compensable degree within a year of his discharge from service or is otherwise related or attributable to any disease, event or injury during his service. The VA examiner should take into consideration the Appellant's statements that his left knee and left ankle conditions were the result of injuries sustained during basic training exercises. The examiner should consider all pertinent medical records associated with the claims file, including the Appellant's service treatment records, pre-service treatment records, post-service medical records, lay statements and assertions. It should be noted that the appellant's February 2009 report of medical history and medical pre-screen, reflects a left tibia fracture around the age of 13 (treated at John's Hospital in Anderson, Indiana), where plates and screws were inserted and removed 10 years later. Additionally, service treatment records from April 2009 reflect left ankle mild soft tissue swelling in the dorsum of the metarsal bone and two small lucency seen in the distal tibia most likely related to old hardware being removed. No fractures were identified. Additionally, in March 2010, the Appellant reported buckling, popping and swelling of his left knee since his reported in-service injury. Finally, private treatment records note the appellant underwent a left knee arthroscopy in 1991. It should be noted, the Appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the requested opinions cannot be provided without resorting to speculation, the examiner must explain why this is so. The examination should not take place until step 1 has been completed. The examiner must review the Appellant's claims file in conjunction with the examination for the pertinent history, including as recounted by the appellant in his pleadings. The VA examiner should conduct any and all necessary testing, including X-rays. 3. The RO/AMC should then review the claims file. If any of the directives specified in this remand or the December 2014 remand have not been accomplished, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the above actions and any other development, as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issues of service connection for a left knee condition and left ankle condition. If any of the issues remain denied, furnish the Appellant with a Supplemental Statement of the Case and afford them an opportunity to respond before the file is returned to the Board for further consideration. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Cynthia M. Bruce 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) (2017).