Citation Nr: 1808648 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-25 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to a rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: Jan D. Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010 and June 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2014, the appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's virtual claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2017, the Board remanded the matters for an addendum opinion from a doctor skilled in the diagnosis and treatment of orthopedic disorders. Specifically, the Board requested that the VA examiner provide an opinion on the following: (1) note all currently present left knee disabilities and whether they are related to any in-service injury, including the Veteran's report of joint pain; and (2) whether it is at least as likely as not that the Veteran's back disability was related to service. The Board directed the examiner to the Veteran's reports of painful joints and back pain in service and post service complaints knee and back pain (although admittedly rare appointments to doctor for treatment). The Veteran was afforded a VA examination in September 2017 where the examiner opined that the Veteran's back and left knee disabilities were less likely than not related to service. The examiner reasoned that the Veteran's in-service back injuries were acute and that there was no continued care of treatment of his back until 1999 when he reinjured it at his civilian job. "There is a 17 year gap between military discharge and diagnosis of recurrent back pain . . . ." The examiner also reasoned that while the Veteran complained of knee pain during service, there is no documentation of record that there has been continued care and treatment of this knee pain until 2001. However, the examiner did not address the reports of gout and whether they are related to his in-service complaints of joint pain. The examiner also did not expressly consider the Veteran's competent complaints of off and on back and knee pain since service and self-treatment. Consequently, yet another remand to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not met, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Pursuant to the Board's June 2017 decision to grant service connection for a right knee disability, in a June 2017 rating, the RO assigned a 10 percent rating for the disability. In December 2017, the Veteran, through his representative, filed a Notice of Disagreement with the assigned rating. However, the RO has not issued a Statement of the Case (SOC) in response to the NOD. Where a claimant files a notice of disagreement, and the RO has not issued a SOC, the issue must be remanded to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Therefore, the Board remands the matter for the issuance of an SOC. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case that addresses the issue of entitlement to a rating in excess of 10 percent for a right knee disability. See December 2015 Notice of Disagreement. Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran timely perfects the appeal, return the case to the Board. 2. Obtain an addendum opinion from the September 2017 VA examiner (or if unavailable, an appropriate medical professional). The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels that another examination is necessary, another examination should be scheduled. The examiner is requested to review the electronic claims file (and specifically note such a review in the opinion) and offer an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current back disability was incurred in or is otherwise related to the Veteran's service. In your opinion, please make sure you consider the Veteran's statements on file of back problems since service as credible; any medical significance of intervening back injuries post service and specifically address the Veteran's complaints of back pain in service coupled with the Veteran's reports of continuity since service, regardless of the absence of contemporaneous medical evidence. (b) State the current diagnoses of the left knee disability. The examiner is requested to reconcile all favorable evidence of record, including but not limited to, evidence that indicates that the Veteran may suffer from patellofemoral arthritis, suprapatellar anthasophytes, small infrapatellar enthesophytes, slight joint effusion and gout. (c) For each left knee disability identified in question (b), opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left disability was incurred in or is otherwise related to the Veteran's service. The examiner is requested to specifically address whether the Veteran's 1982 reports of painful joints is related to any current left knee disabilities, including any diagnoses of gout. A complete rationale for all opinions must be provided. Please ensure that the opinion includes a discussion of the credible lay evidence and how it affects the conclusion reached. 3. Thereafter, ensure that the examination report complies with the remand directives set forth above. Then, readjudicate the claims on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).