Citation Nr: 21000373 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 543 DATE: January 5, 2021 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability, to include as due to a right knee disability, is remanded. Entitlement to service connection for lower back pain, to include as due to a right knee disability, is remanded. Entitlement to service connection for left lower extremity pain, to include as due to a right knee disability, is remanded. REASONS FOR REMAND The appellant served in the Army National Guard, including a period of active duty for training from August 1973 to September 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in December 2018 for further development. 1. Entitlement to service connection for asthma 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for a left knee disability, to include as due to a right knee disability 4. Entitlement to service connection for lower back pain, to include as due to a right knee disability 5. Entitlement to service connection for left lower extremity pain, to include as due to a right knee disability The appellant contends that his asthma was aggravated by his active service and that he injured his right knee during basic training and was medevacked to a hospital and diagnosed with a torn ligament. The appellant contends that the right knee injury still affects him and now affects his left knee, lower back and lower extremities. Although there is no documentation or lay evidence of the injury beyond the appellant’s own account, in December 2018, the Board found that the appellant’s account of in-service injury credible enough to raise the possibility that an in-service incident occurred and that VA’s duty to provide a medical opinion regarding the claimed disabilities was triggered. Additionally, with respect to the appellant’s asthma, the Board found that an additional medical opinion was needed to address aggravation by active duty service, as well as to address direct service connection. The Board therefore remanded the claims for VA examinations. However, there is no record that notice of the scheduled VA examinations was sent to the appellant. The Board also notes that different phone contact numbers are of record. See August 2019 and May 2020 VA treatment reports. A remand confers on the appellant, as a matter of law, the right to compliance with remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the record shows that although the VA examinations directed by the December 2018 remand were requested, all of the examinations were cancelled because the appellant failed to report. VA has received no communication, written or otherwise, from the appellant pertaining to the examinations. Therefore, the Board finds that additional development is warranted. Stegall, supra. Thus, on remand, the previously requested VA examinations are needed to address the Board’s December 2018 remand directives to determine the nature and etiology of the appellant’s asthma, right knee, left knee, low back and left lower extremity disabilities. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent outstanding VA and private treatment records and associate them with the claims file. 2. After the above development has been completed, obtain an addendum opinion to the August 2016 VA respiratory examination from an appropriate medical professional to determine the nature and etiology of the appellant’s asthma disability. The claims file, to include a copy of this Remand, must be made available to, and reviewed by, the examiner. The examiner should note such review was conducted. If it is deemed necessary by the examiner, schedule the appellant for a VA examination. If an examination is conducted, the examiner should obtain a detailed clinical history of the appellant, and obtain any additional relevant information from the appellant. The examiner is asked to answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the appellant’s current asthma disability was incurred in or caused by an in-service injury, event or illness? (b.) Is it at least as likely as not (50 percent or greater probability) that the appellant’s current asthma disability was aggravated beyond its normal progression by an in-service injury, event or illness? The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is found, the baseline level of disability should be identified to the extent possible. The appellants lay statements and reports must be acknowledged and considered in formulating any opinion. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner rejects the appellant’s reports, he or she must provide an explanation for such rejection. Also, the examiner should not rely on an absence of medical evidence in the record to support his or her conclusions. The examiner should consider all evidence, including the appellant’s lay statements, medical records, and other medical opinions. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Forward the claims file to an appropriate examiner to provide an opinion regarding the claimed low back, left lower extremity, and bilateral knee disabilities. The claims file, to include a copy of this Remand, must be made available to, and reviewed by, the examiner. The examiner should note such review was conducted. If it is deemed necessary by the examiner, schedule the appellant for a VA examination. If an examination is conducted, the examiner should obtain a detailed clinical history of the appellant, and obtain any additional relevant information from the appellant. After review of the claims file, the examiner is asked to opinions as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the appellant’s right knee disability was incurred in or caused by an in-service event or illness? (b.) If the examiner finds that the appellant’s right knee disability was incurred in or caused by an in-service event or illness, is it at least as likely as not (50 percent or greater probability) that the appellant’s low back pain, left lower extremity pain and left knee disability are proximately due to or aggravated beyond its natural progression by the appellant’s right knee disability? (c.) If the examiner finds that the appellant’s right knee disability was not incurred in or caused by an in-service event or illness, is it at least as likely as not (50 percent or greater probability) that the appellant’s low back pain, left lower extremity pain and left knee disability were incurred in or caused by an in-service event or illness? The appellant’s lay statements and reports must be acknowledged and considered in formulating any opinion. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner rejects the appellant’s reports, he or she must provide an explanation for such rejection. Also, the examiner should not rely on an absence of medical evidence in the record to support his or her conclusions. The examiner should consider all evidence, including the appellant’s lay statements, medical records, and other medical opinions. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.