Citation Nr: 18151735 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 06-34 882 DATE: November 20, 2018 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1968 to April 1971. In February 2013 and December 2014, the Board remanded the issues on appeal for additional evidentiary development. In a June 2017 decision, the Board denied the issues on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Veteran, through his attorney, and the Secretary of VA (the parties) entered into a Joint Motion for Partial Remand (JMPR) in which they moved the Court to vacate and remand the June 2017 Board decision to the extent that it denied the Veteran’s claims for service connection for a low back, right knee, and right ankle disorder. The issues have now returned to the Board for further development and adjudication. The Board notes that the June 2017 Board decision, in addition to denying the claims currently on appeal, also remanded the Veteran’s claims for compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA treatment with respect to a right lateral malleolus and calcaneal fracture, an increased rating for bronchial asthma, and a total disability rating based on individual unemployability (TDIU). It appears that the RO is still working on the claims, therefore the Board does not have jurisdiction to review them and they are not before the Board at this time. Entitlement to service connection for a low back disorder, a right knee disorder, and right ankle disorder are remanded. Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, where the remand orders of the Board 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, 271 (1998). Low back disorder As noted above, the parties to the aforementioned April 2018 JMPR found that the Board in its June 2017 decision, failed to ensure compliance with the Board’s prior December 2014 remand instructions. The Board had previously ordered that the RO obtain an examination to address whether the Veteran’s low back disability was related to service. The Board further instructed the RO to make the claims file available to the examiner in conjunction with the examination. However, in the resulting September 2015 examination report, the examiner noted that he did not review the Veteran’s claims file, but that he did review the Veteran’s service treatment records to include the enlistment examination, and VA treatment records. However, the Veteran’s claims file contains private treatment records, Social Security Administration (SSA) records, and lay statements regarding his back disorder. Therefore, on remand an additional examination should be obtained, and the examiner should review the entire claims file and such should be noted in the examination report. Furthermore, in the JMPR, the parties agreed that potentially relevant records from the Puerto Rico State Insurance Fund should have been obtained. It was noted that during the April 2001 examination, the Veteran reported that after injuring his back at work, he received treatment and evaluations at the Puerto Rico State Insurance Fund, but the condition was considered “pre-existent and not related to work.” Such records are not of record, therefore on remand such records should be obtained. Right knee disorder The Veteran alleges that his right knee disorder is due to his active duty service or in the alternative due to his low back disorder. The April 2018 JMPR noted that throughout the appeal, the Veteran reported that his right knee disorder was due to his back, however, the Board previously failed to consider the Veteran’s theory of secondary service connection. In addition, the September 2015 examiner also failed to consider such theory of entitlement. Furthermore, the September 2015 examiner failed to consider the Veteran’s allegations of right knee pain following service, and noted “no evidence of continuity or chronicity of any right knee condition.” Therefore, such examination is inadequate for adjudication purposes and an adequate examination should be obtained on remand. Right ankle disorder The Veteran alleges that his right ankle disorder is due to his active duty service or in the alternative due to his low back disorder. The April 2018 JMPR noted that throughout the appeal, the Veteran reported that his right ankle disorder was due to his back, however, as previously noted, the Board failed to consider the Veteran’s theory of secondary service connection as did the September 2015 examiner. Therefore, the September 2015 examination is inadequate for adjudication purposes, and an adequate examination should be obtained on remand. Finally, the parities in the April 2018 JMPR noted that the Board failed to ensure that the Veteran was provided with notice as required under 38 C.F.R. § 3.159(e)(2). In November 2015, the RO sent the Veteran a letter requesting an authorization for release of medical records from the Hospital General Menonita, Inc. It was noted that while the Veteran failed to respond to the request, under 38 C.F.R. § 3.159(e)(2) if a Veteran does not provide any necessary release of relevant records that the VA is unable to obtain, VA will request that the Veteran obtain the records and provide them to VA. In this case, VA failed to inform the Veteran that he should obtain the described records and provide them for the file. Therefore, a remand is necessary in order to fully comply with 38 C.F.R. § 3.159(e)(2). Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records, to include any from the Puerto Rico State Insurance Fund. In addition, updated treatment records should also be obtained. 2. Send the Veteran notification that is compliant with 38 C.F.R. § 3.159 (e) that informs him of the unavailability of records from Hospital General Menonita, Inc. 3. Obtain addendum opinions from the September 2015 examiner, if possible, to determine the nature and etiology of the Veteran’s low back, right knee, and right ankle disorders. Request that the examiner review the entire claims file, including service treatment records, all post-service treatment records (both VA and private treatment records), SSA records, and the Veteran’s lay statements. The examiner should be specifically directed to review this REMAND and the entire claims file, and should acknowledge doing so in his report. (A) The examiner should identify all current diagnoses referable to the Veteran’s low back, right knee and right ankle disorders. (B) The examiner should opine whether the currently diagnosed low back, right knee, and/or right ankle disorders are at least as likely as not (i.e., 50 percent probability or greater) related to the Veteran’s military service. (C) If it is determined that the Veteran’s low back disorder is at least as likely as not related to service, but that his right knee and/or right ankle disorders are not, then the examiner should address whether it is at least as likely as not that the Veteran’s right knee and/or right ankle disorders, were at least as likely as not caused OR aggravated by his low back disorder. If aggravation is found, the examiner should quantify the degree of additional disability resulting from the aggravation.   A rationale for any opinion offered should be provided. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel