Citation Nr: 21068210 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-35 682 DATE: November 9, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1973 to July 1974 and from February 1977 to January 1979. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision which denied, in pertinent part, a claim of service connection for a left knee disability (which was characterized as left knee condition (claimed as cramps in legs)). A videoconference Board hearing was held in June 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. In September 2018 and in May 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran's August 2021 VA Form 10182 (Board Appeal) was docketed in error, since the Veteran had also submitted VA Forms 10-0995 (Supplemental Claim Application) and 10-0996 (Request for Higher Level Review) at the same time. Both Forms 10-0995 and 10-0996 would not have been accepted at the RO because the Veteran did not check the box indicating an intention to opt-in from a Supplemental Statement of the Case (SSOC). Therefore, the Board finds that the legacy appeal remains in active status, since the Veteran did not properly opt-in to any other procedural avenue. The Veteran is on notice that he will have the opportunity to opt into an AMA appeal if desired once another SSOC is issued following this remand, if the matter is not granted. As such, the Board will continue with the legacy appeal here. Additional development is required before the underlying claim can be adjudicated on the merits. The Veteran essentially contends that he incurred his current left knee disability during active service and experienced continuous post-service disability. Unfortunately, to date, the AOJ has not obtained a medical nexus opinion concerning the contended etiological relationship between a left knee disability and active service which is likely to survive judicial review. The Board found an October 2015 VA medical nexus opinion to be inadequate for VA adjudication purposes in the May 2021 remand because that opinion relied on a lack of contemporaneous records as rationale. It is well-settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The July 2021 VA medical nexus opinion obtained in response to the May 2021 Board remand also is inadequate for VA adjudication purposes because it relies on a lack of records as rationale. The Board notes that judicial review is frustrated in this appeal by the AOJ's apparent inability to obtain a medical nexus opinion with rationale likely to survive judicial review. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's left knee disability. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left knee disability is related to active service. A rationale must be provided for any opinion(s) expressed. The clinician is advised not to review or rely upon medical opinions dated in October 2015 and in July 2021 in preparing his or her own opinion(s). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.