Citation Nr: 21030758 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-21 652 DATE: May 19, 2021 REMANDED Entitlement to compensation under the provisions of 38U.S.C. §1151 for a total right knee replacement (right knee disability) performed at the Miami VA Medical Center in September 2013 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1961 to November 1963. In October 2019, the Veteran testified at a Board of Veterans' Appeal (Board) videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In January 2020, the undersigned issued a decision denying the appeal. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, which incorporated the parties December 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision. Entitlement to compensation under the provisions of 38U.S.C. §1151 for a right knee disability is remanded. The JMR vacated and remand the January 2020 Board decision because the record did not show that the Veterans' Administration (VA) attempted to obtain and associated with the record identified and pertinent private treatment records the Veteran testified about. Specifically, the JMR stated that before the Board could adjudicate the appeal it needed to first attempt to obtain and associated with the record all of the medical records surrounding the Veteran's second total right knee replacement performed by Dr. Preetesh Patel at the Cleveland Clinic in November 2016 as well as the letter he testified about in which he said Dr. Patel stated that permanent damage was done to his right knee when VA first replaced it in September 2013. Therefore, a Remand is required to obtain and associate with the record the Veteran's records from Dr. Patel as well as any other outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Also see 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); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Given the above development, the Board finds that while the appeal is in Remand status a new medical opinion should be obtained. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that considers the records of prior examinations and treatment). If possible, to avoid further delay in the case, the Veteran and his representative are asked to obtain the records cited above themselves. The appeal is REMANDED for the following actions: 1. In order to comply with the JMR, after obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records including all of the Veteran's medical records surrounding the Veteran's second total right knee replacement performed by Dr. Patel at the Cleveland Clinic in November 2016 as well as the letter the Veteran testified about in which he said Dr. Patel stated that permanent damage was done to his right knee when VA first replaced it in September 2013. If possible, the Veteran himself or his representative should submit and evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. Given the JMR, efforts to obtain Dr. Patel's records should be ended only after multiple attempts. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claim for compensation under the provisions of 38U.S.C. §1151 for a total right knee replacement performed at the Miami VA Medical Center in September 2013. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether the Veteran has any additional disability due to the total right knee replacement performed at the Miami VA Medical Center in September 2013. If he does not have any additional disability, the examiner must clearly say so. b If the Veteran has any additional disability, then as to each additional disability due to the total right knee replacement performed at the Miami VA Medical Center in September 2013, provide an opinion as to whether it is at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment. c. If the Veteran has any additional disability, then as to each additional disability due to the total right knee replacement performed at the Miami VA Medical Center in September 2013, provide an opinion as to whether it is at least as likely as not foreseeable. In providing answers to the above questions, the examiner should consider the Veteran's competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner should consider and discuss the significance, if any, of the second total right knee replacement performed by Dr. Patel at the Cleveland Clinic in November 2016. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.