Citation Nr: 21065776 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-34 301 DATE: October 27, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from August 1955 to August 1959. This matter comes to the Board of Veterans' Appeals (the Board) following an August 2012 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for a bilateral knee disorder. The Veteran participated in a hearing before a Veterans Law Judge other than the undersigned in March 2018. A transcript of this hearing is of record. The Veterans Law Judge who conducted that hearing is no longer available to participate in the adjudication of the Veteran's appeal. In October 2019, the Veteran was given the opportunity to appear at a hearing before a Veterans Law Judge who would then adjudicate his appeal. The Veteran declined an additional hearing. In November 2019, the Board denied entitlement to service connection for a bilateral knee disability. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (the Court). In an August 2020 Order, the Court entered a Joint Motion to Remand (JMR) of the parties, vacating the Board's denial and remanding the matters to the Board. The JMR determined that the Board erred in relying on an inadequate March 2019 Department of Veterans Affairs (VA) examination in denying entitlement to service connection for a right knee disability. Furthermore, the parties agreed that the Veteran's claim for entitlement to service connection for a left knee disability was inextricably intertwined with his claim for entitlement to service connection for a right knee disability. In February 2021, the Board granted entitlement to service connection for total right knee replacement with meniscal tear and degenerative arthritis and remanded the claim for entitlement to service connection for a left knee disability to obtain a new medical opinion. This appeal was most recently before the Board in July 2021 when it was once again remanded for a new etiological opinion, which was obtained in August 2021. 1. Entitlement to Service Connection for a Left Knee Disability The Veteran asserts that his left knee disability is secondary to his service-connected total right knee replacement with meniscal tear and degenerative arthritis due to overcompensation. His claim was most recently remanded before the Board in July 2021. The Board concluded that the May 2021 VA examination was inadequate because the examiner failed to consider the Veteran's testimony regarding the onset of his left knee symptoms and a medical treatise regarding the effect of altered gait and stance on joints, which was submitted by the Veteran's representative in June 2021. The Board's July 2021 remand directed the AOJ to schedule the Veteran for a new VA examination to determine the etiology of his left knee disability. Specifically, the examiner was asked to discuss (1) the Veteran's testimony regarding the onset of his left knee symptoms following surgery on his service-connected right knee and (2) the medical treatise evidence identified in his representative's June 2021 brief. The Veteran received a new VA examination in August 2021. However, his representative contends that this examination was inadequate because it did not substantially comply with the Board's July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board agrees. The examiner who performed the August 2021 examination considered the Veteran's testimony regarding the onset of his left knee symptoms and ultimately concluded that the Veteran's medical history is consistent with a slow and chronic worsening of his left knee disability rather than a sudden onset following his 2005 right knee surgery. Problematically, however, there is no discussion of the medical treatise submitted by the Veteran's representative in June 2021. Although the examiner noted that she reviewed the Veteran's file, there is no discussion of the medical treatise evidence as specifically required by the Board's July 2021 remand directives. Thus, even if she considered the medical treatise in rendering her opinion, the rationale still does not comply with the Board's remand directives because it does not contain a discussion of this evidence. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall, 11 Vet. App. at 271. As the medical opinion did not discuss all of the evidence required by the July 2021 remand directives, there was not substantial compliance with the Board's most recent remand. Accordingly, another remand is necessary to cure this deficiency. The matters are REMANDED for the following action: Obtain an addendum opinion from the examiner responsible for the August 2021 examination report. The Veteran's claims file must be made available to the examiner. If the same examiner is not available, the request should be forwarded to another clinician. After reviewing the claims file, with any necessary examination and testing, the examiner should address the following: (a.) Identify/diagnose any disability of the left knee that existed at the time the Veteran filed his claim in March 2010 or has existed since. (b.) For any disorder of the left knee identified/diagnosed, is it at least as likely as not (a 50 percent probability or greater) caused or aggravated (underwent any incremental increase in disability or any additional impairment of earning capacity, regardless of its permanence) by his service-connected total right knee replacement with meniscal tear and degenerative arthritis? In rendering this opinion, the examiner must discuss the medical treatise evidence identified in the June 2021 brief submitted by the Veteran's representative. If that evidence cannot be discussed, the examiner must provide an explanation. The examiner must provide a rationale for the opinion proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.