Citation Nr: 1803029 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 13-32 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to January 1964 and from November 1980 to June 1991 with additional periods of inactive service. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decisions dated in November 2012 and August 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2017, the Board denied an initial rating in excess of 30 percent for service-connected asthma. Additionally, the Board remanded the claims for service connection for a left knee disorder and type II diabetes mellitus. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2017, the Board remanded these matters to afford the Veteran VA examinations to determine the nature and etiology of the Veteran's disabilities. Thereafter, the Veteran was scheduled for VA examinations; however, he explained that he refused to attend any further VA examination. Nonetheless, the duty to assist regulation pertains to providing "medical examinations or obtaining medical opinions." 38 C.F.R. § 3.159(c)(4) (2017) (emphasis added). In the circumstances of this case, the Board finds that VA medical opinions should be obtained as instructed below to fulfill VA's duty to assist and substantially comply with the February 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request an opinion as to the etiology of the Veteran's left knee disorder from a VA physician. The Veteran's VA claims folder should be made available to the physician for review in conjunction with this opinion. The physician should address the following: Whether it is at least as likely as not (at least a 50 percent probability) that the left knee arthritis is in part caused by or related to the Veteran's active military service to include the documented in-service injury to the upper epiphysis of the tibia and the torn medical meniscus of the left knee documented in March 1963. The physician should provide an explanation for all conclusions reached. As part of his or her explanation, the examiner should discuss the lay statements from the Veteran regarding symptoms of left knee pain in service with continuous or recurrent symptoms since discharge from service. 2. Request an opinion as to the etiology of the Veteran's type II diabetes mellitus from a VA physician. The Veteran's VA claims folder should be made available to the physician for review in conjunction with this opinion. The physician should address the following: Whether it is at least as likely as not (at least a 50 percent probability) that the excessive sweating experienced during service was an early manifestation of the Veteran's type II diabetes mellitus, or whether his diabetes is otherwise related to service. The physician must provide an explanation in support of all opinions expressed. 3. If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Jonathan Hager 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).