Citation Nr: 20021702
Decision Date: 03/26/20	Archive Date: 03/26/20

DOCKET NO. 14-14 418
DATE: March 26, 2020

REMANDED

Entitlement to service connection for a right knee disability is remanded.

REASONS FOR REMAND

The Veteran had active service from June 1967 to July 1969 and from February 1991 to April 1991.  He also had Reserve and National Guard service.  He served in Vietnam and was awarded the Combat Action Ribbon.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  The appeal was remanded for additional development in March 2018.

In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Entitlement to service connection for a right knee disability is remanded.

Unfortunately, remand is required in this case due to noncompliance with the prior remand instructions.  Although the Board sincerely regrets the additional delay, it is legally necessary to ensure compliance with the prior remand directives. 

The Board's March 2018 remand requested that the Veteran be scheduled for a VA examination to determine the nature and etiology of a right knee disability.  In the March 2018 remand instructions, the Board instructed that “the examiner must review the claims file and should note that review in the report…any opinion expressed should be accompanied by a complete rationale.”  The Board observes that the opinion appears to be based on an incomplete review of the file and thus inaccurate facts.  Specifically, the examiner did not consider or address evidence of osteophytosis on a January 2012 report of magnetic resonance imaging (MRI) and any relationship to service. 

The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary.  Stegall v. West, 11 Vet. App. 268 (1998).  Remand is required to ensure compliance with the March 2018 remand instructions.

The matters are REMANDED for the following action:

1. After obtaining any necessary releases, request any outstanding private treatment records and associate them with the record.  All attempts to locate records must be documented in the claims file. 

2. Obtain all VA treatment records not already associated with the claims file.

Then, schedule the Veteran for a VA examination to determine the nature and etiology of any right knee disability.  The examiner must review the claims file and should note that review in the report.  A complete history should be elicited from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.  Concerning any right knee disability identified, the VA examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any right knee disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service.  The examiner is asked to consider and address evidence of osteophytosis on the January 2012 MRI.  The examiner is also requested to address the Veteran’s lay statements and July 2017 testimony of numbness and chronic pain in the right knee.  Any opinion expressed should be accompanied by a complete rationale.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Duke, 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. § 20.1303.