Citation Nr: 20009968 Decision Date: 02/07/20 Archive Date: 02/05/20 DOCKET NO. 14-04 231 DATE: February 7, 2020 REMANDED The claim of entitlement to service connection for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to March 1984. This appeal before the Board of Veterans’ Appeals (Board) arose from a May 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s request to reopen his previously denied claim for service connection for left knee disability. The Veteran filed a notice of disagreement (NOD) in May 2011. A statement of the case (SOC) was issued in November 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2014. In April 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In March 2017, the Board granted the Veteran’s request to reopen his previously denied claim for service connection for left knee disability, and remanded the reopened claim foe for service connection, on the merits, to the agency of original jurisdiction (AOJ), or additional development. After accomplishing further action, the AOJ continued to deny the claim (as reflected in an October 2019 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. Unfortunately, the Board finds that further AOJ action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2017 remand, the Board directed the AOJ to obtain VA examination to determine the nature and etiology of all current left knee disability(ies). The Board specifically requested that, after examining the Veteran and reviewing the evidence on record, including the Veteran’s lay statements regarding his symptoms, the examiner provide a diagnosis and render an etiology opinion as whether it is as least as likely as not that any current left knee disability(ies) is related to active duty. The Board directed that the examiner’s opinion specifically consider and discuss all medical and other objective evidence of record, to include the service treatment records (STRs) documenting the Veteran’s left knee injury and subsequent treatment after October 1983, the September 2013 VA opinion, and the May 2017 private opinion from Dr. C.M. The examiner was also instructed to consider and discuss all lay assertions, to include the Veteran’s Board hearing testimony and the corroborating statement from his wife describing a continuity of symptoms since military service, and that he experienced torn ligaments that required repair. Finally, the examiner’s opinion was to be accompanied by a complete, clearly-stated rationale. Pursuant to the remand, the AOJ arranged for the Veteran to undergo further VA examination, which took place in October 2019. The VA examiner diagnosed left knee strain, but concluded that condition as less likely than not incurred in or caused by an in-service injury, event or illness. As rationale, the examiner stated that he had reviewed “all available records including previous medical opinions, lay statements, and BVA testimony” and noted the Veteran’s involvement in a car accident during-service in October 1983. The examiner indicated that the Veteran’s “scar healed well per in-serviced records” and that “[n]o other injury sustained to the knee for remainder of service. Multiple x-rays taken after service were normal dating back to 2011.” The examiner recited some of the STRs “per BVA decision” but did not specifically discuss and consider all medical evidence, including the September 2013 VA opinion and May 2017 private opinion from Dr. C.M., as instructed in the March 2017 remand. Moreover, the examiner neglected to address and consider the Veteran’s Board hearing testimony and his wife’s statement which describes the Veteran’s continuity of symptoms after separation from service, and that he experienced torn ligaments that required repair. Under these circumstances, the Board is unable to find that substantial compliance with the March 2017 remand directives has been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, another remand of this matter is required to obtain adequate findings and opinion(s),—based on full consideration of the Veteran’s documented medical history and all lay assertions, and supported by complete, clearly-stated rationale—is required. See Stegall, supra. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). Prior to accomplishing actions responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) treatment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange for the Veteran to undergo VA left knee examination, by an appropriate physician, to obtain information as the nature and etiology of all current left knee disability(ies). The contents of the entire claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all diagnosed disability(ies) associated with the left knee, to include left knee strain and any ligament tear or injury, currently present, or present at any time pertinent to the claim on appeal (even if now asymptomatic or resolved). Then, with respect to each such diagnosed left knee disability, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active duty service or is otherwise medically related to such service, to include injury therein. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence—to include the STRs documenting the Veteran’s left knee injury and subsequent treatment after October 1983, the September 2013 VA opinion, and the May 2017 private opinion from Dr. C.M. The physician must also consider and discuss all lay assertions—to include the Veteran’s Board hearing testimony and the corroborating statement from his wife as to his in-service activities, and as to the nature, onset, and continuity of symptoms, to include left knee pain. Notably, the absence of evidence of documented treatment for left knee complaints during or shortly after service should not, alone, serve as the sole basis for a negative etiology opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that such lay reports must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any other actions deemed warranted, adjudicate the service connection claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R.