Citation Nr: 20045084 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-43 575 DATE: July 7, 2020 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2007 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2019. The claim was remanded for the RO to obtain an addendum opinion to the September 2015 VA examination report regarding the etiology of the left knee condition. The Board decision indicated the examiner should assume the Veteran has a current disability when rendering the opinion. An examination of the Veteran was not required unless the examiner determined it was necessary to provide a reliable opinion. In this case the Veteran was scheduled for a VA examination in January 2020 and failed to appear. The Board notes the Veteran was scheduled for the VA examination on January 29, 2020. He appeared for an X-ray with VA the same day. A miscommunication between the VA and the Veteran is plausible as he had two appointments with VA providers on the same day and made it to one of them. When there exists a remand, from either the United States Court of Appeals for Veterans Claims (Court) or the Board, a claimant is entitled to substantial compliance with those remand directives. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds substantial compliance is not present and the matter must be remanded again. As such, the Veteran should be given an opportunity to attend another VA examination and an opinion on the etiology of the left knee condition should be rendered. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Provide the Veteran with a VA compensation examination to ascertain the current nature and etiology of the current left knee disability. The relevant documents in the record, to include evidence of the February 2015 left knee surgery, should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. The VA examiner is requested to provide the opinions in response to the following: A. Is it at least as likely as not (i.e., probability of 50 percent or more) that the current left knee disability was incurred in service or is otherwise related to service, to include in-service complaints of left knee pain? B. If the answer to the above question is negative, is it as likely as not (i.e., probability of 50 percent or more) that the Veteran’s left knee disability is proximately due to or the result of his service-connected right knee disability, to include on the basis of overuse to compensate for the service-connected right knee? C. If the answer to the above question is negative, is it as likely as not (i.e., probability of 50 percent or more) that the Veteran’s left knee disability was aggravated (that is, increased in severity beyond normal progression) proximately due to or the result of the service-connected right knee disability,y to include on the basis of overuse to compensate for the service-connected right knee? A detailed rationale supporting the examiner’s opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.