Citation Nr: 21013725 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-28 089A DATE: March 10, 2021 REMANDED Service connection for a low back disability. Service connection for a right knee disability. Service connection for a left knee disability.   REASONS FOR REMAND The Veteran served on active duty from April 1970 to April 1972. He had additional service with the Alabama National Guard. The case is on appeal from a January 2008 rating decision. In July 2014, the Veteran testified at a Board hearing. 1. Service connection for a low back disability. 2. Service connection for a right knee disability. 3. Service connection for a left knee disability. The three service connection claims most recently came before the Board in July 2019 and were denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2020 Joint Motion for Remand (JMR), the Court issued a September 2020 Order that vacated the Board decision and remanded the claims back to the Board for further development. Per the September 2020 JMR, the parties agreed that the Board erred by not complying with the terms of the previous JMR from April 2018. In the April 2018 JMR, the parties specifically stated, “the Board failed to make a finding regarding whether VA substantially complied with the prior Board remand instructions. In any subsequent decisions in this case, the Board should make an express finding as to whether VA substantially complied with the prior remand terms.” The Board notes that the three service connection claims were remanded by the Board in September 2014 for further development. The Board directed the RO to “Ask the Veteran to identify any service treatment records (STRs) that he believes are missing. Request any identified records from the appropriate records custodian.” The Board also required a VA orthopedic examination to determine the etiology of the Veteran’s back and bilateral knee disorders. Thereafter, the RO sent a development letter in October 2014 inquiring into potentially missing STRs and requesting the Veteran to identify any such records. The Veteran submitted a November 2014 statement in which he indicated there were still outstanding service treatment records, including from November 1970 to March 1971. The Veteran then submitted STRs dated from November 1970 to April 1971; however, the RO never sent an additional request for the records identified by the Veteran or otherwise, for all outstanding STRs. Therefore, although the Veteran submitted STRs dated from November 1970 to April 1971, the Board finds there has not been substantial compliance with the September 2014 Board remand, as well as the subsequent April 2018 JMR and Court Order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). As such, any outstanding STRs will be requested on remand. Additionally, a September 2020 statement was submitted by the Veteran’s appellate representative. It indicated there are potentially outstanding STRs and that VA never requested such records following the September 2014 remand. As noted above, the Board tends to agree, and on remand, any outstanding STRs are being requested. The representative also indicated that with regard to the bilateral knee claims, the September 2011 private medical opinion in support is just as probative as the January 2019 VA opinion against the claims. The statement disagrees with the July 2019 Board decision which found the September 2011 medical opinion to be less persuasive than the January 2019 VA opinion. The representative noted that the January 2019 examiner opined a more significant in-service injury would be required to establish a causal relationship between the Veteran’s service and the current knee diagnosis. In contrast, the September 2011 examiner opined the in-service injury was sufficient to cause the Veteran’s current bilateral knee disorders. Therefore, in light of the September 2020 representative’s statement, as well as the ongoing conflict in the medical evidence related to the bilateral knee claims, the Board finds an additional VA opinion is warranted to determine whether the Veteran’s bilateral knee disorders are causally related to service. The matters are REMANDED for the following action: 1. Contact all relevant departments to obtain any outstanding STRs for the Veteran’s period of active duty, from April 1970 to April 1972. If any records sought are determined to be unavailable, or a negative response is received and it is determined that further efforts to obtain said records would be futile, the RO should prepare a formal finding of unavailability for the file and notify the Veteran and his representative. 2. After completion of the above, obtain a VA medical opinion from a qualified Physician to determine the etiology of the Veteran’s bilateral knee disabilities. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee disorders had their onset during, or are otherwise related to, service. The examiner should review and discuss the relevant medical evidence of record in favor of and against the claims, including the September 2011 private medical opinion from Dr. Sparks and the January 2019 opinion from Dr. Adelaar. The examiner should also address the Veteran’s lay contentions, which support that the onset of his bilateral knee disabilities was service. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.