Citation Nr: 21061950 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 11-09 064 DATE: October 5, 2021 REMANDED Entitlement to service connection for a left knee disorder, as indirectly secondary to service-connected right knee disorders with obesity as an intermediate step, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1990 to September 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. The Board remanded the claim for service connection for a left knee disorder, to include as secondary to service-connected right knee disorders, for additional development in September 2012 and July 2015. In January 2017, the Board denied service connection for a left knee disorder, to include as secondary to service-connected right knee disorders. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued an October 2017 Order granting a Joint Motion for Partial Remand (JMR). The JMR called for a partial vacatur of the Board's decision and remanded the matter back to the Board for readjudication as obesity was not discussed as a potential intermediate step with respect to secondary service connection (indirect secondary service connection). As such, this matter concerns only this specific theory of entitlement, as the Board's decision denying all other theories was not disturbed by the JMR. In November 2017, the Board remanded the appeal for additional development on the remaining theory of entitlement. In July 2019, the Board again remanded this case for additional medical opinions regarding the Veteran's claim of entitlement to service connection for a left knee disorder as indirectly secondary to service-connected right knee disorders with obesity as an intermediate step. In December 2020, the Board remanded this matter again for evidentiary development. Service connection for a left knee disorder, as indirectly secondary to service-connected right knee disorders with obesity as an intermediate step The December 2020 Board remand found that the addendum medical opinion obtained in December 2019 was inadequate. The Board noted that the opinion failed to address adequately whether the Veteran's service-connected right knee disabilities caused his obesity, which in turn resulted in his left knee disorder. The Board directed the agency of original jurisdiction (AOJ) to obtain an addendum opinion addressing the etiology of the Veteran's left knee disorder. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The record shows that an examination request was made in January 2021. In July 2021, the Veteran contacted VA to say that he did not wish to appear for another examination, and, in July 2021, the examination request was cancelled. No addendum opinion was provided as requested by the December 2020 Board remand. As no addendum opinion was obtained, the Board finds that there has not been substantial compliance with the July 2019 and December 2020 Board remand directives. Stegall, 11 Vet. App. at 271. The December 2020 Board remand directives requested an addendum opinion, which should have been and could have been obtained without the Veteran needing to appear for another examination. Furthermore, the record does not include any documentation informing the Veteran of this scheduled examination, nor is it clear whether the Veteran understood the importance of, and need for, the examination. The Board sincerely regrets the delay caused by this remand. However, given the incomplete development and lack of substantial compliance with the Board's prior remand directives, a remand is necessary for corrective action. Specifically, another remand is necessary to obtain an additional VA etiological opinion to determine the etiology of the Veteran's left knee disability. Accordingly, this matter is REMANDED for the following action: Obtain a VA addendum opinion to determine the etiology of the Veteran's left knee disability. The record must be made available to, and be reviewed by, the VA examiner. The examiner should ascertain from the Veteran's medical records the history of his service-connected right knee disorders (to include instability and limitation of flexion of this joint), his obesity, and his left knee disability(ies). The examiner should diagnose all left knee disabilities that the Veteran has had at any time during the appeal period, even if now resolved. After reviewing the claims folder, the examiner is asked to do the following: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected right knee disorders (defined as limitation of flexion and instability of this joint) caused him to become obeseor increased the severity of his obesity? b. If the Veteran's service-connected right knee disorders caused him to become obeseor increased the severity of his obesityis it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity was a substantial factor in causing his left knee disability(ies)? c. If the Veteran's service-connected right knee disorders caused him to become obeseor increased the severity of his obesityis it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left knee disability would not have occurred but for the obesity related to his service-connected right knee disorders? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the exhaustion of the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. (CONTINUED ON NEXT PAGE) Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.