Citation Nr: 22051101 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 11-13 036 DATE: September 8, 2022 REMANDED Entitlement to service connection of a bilateral ankle condition is remanded. Entitlement to service connection of a right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1983 to December 1992, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the claims addressed herein came before the Board in October 2017, December 2017, and January 2020. In January 2020, among other things, the Board denied the claims. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), and in August 2021, the Court issued a memorandum decision which vacated and remanded the two issues addressed herein to the Board for further development. In March 2022, the Board issued a new remand of those issues to comply with the orders in the Court's memorandum decision. The issues are now returned to the Board. In August 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Inasmuch as the Board regrets any further delay in the adjudication of these claims, an additional remand is necessary to ensure proper development of the appeals. 1. Entitlement to service connection of a bilateral ankle condition 2. Entitlement to service connection of a right knee condition A remand from the Board confers upon a claimant a right to compliance with those remand orders. The Board errs as a matter of law when it fails to ensure strict compliance with its remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its most recent remand orders, the Board addressed the fact that the Court found issue with the March 2019 VA examination and medical opinions obtained in connection with that examination. Specifically, the Court ruled that the VA examiner who provided the opinion relied upon an incorrect factual premise in giving the opinions (the examiner determined that the Veteran's service treatment records do not document treatment for either an ankle or right knee disorder during service, however, the Court identified three specific citations in the service treatment records for foot/heel injuries in September 1987 and July 1989, and complaints of right knee pain in September 1987, which the examiner did not explicitly acknowledge, and thus speak to treatment for knee and ankle symptoms in service). Additionally, the Court found issue with the examiner's conclusions because the examiner failed to address the Veteran's "implicitly credible" statements that he had experienced pain in his ankles and right knee since the time of service, for which he has self-medicated throughout the years. In light of this, the Board remanded these claims so that an addendum opinion could be obtained which addressed these specific concerns. Notably, the Board did not order a new VA examination in connection with the addendum opinion, but merely requested that an opinion by given based on a review of the evidence of record. Despite the Board only requesting an addendum opinion, in June 2022, the Veteran was scheduled for an examination of his ankles and right knee, to take place the following month, which he either did not appear for, or requested to cancel prior to the examination taking place. No subsequent attempt to reschedule is contained in the record, and the claim was again denied on the merits. The Board notes that it did not request an examination be scheduled in connection with the requested addendum opinions only that addendum opinions be given based on a review of the evidence of record. While the most recent supplemental statement of the case (SSOC) states that an examiner required an in-person examination prior to providing the requested addendum opinions, there is no indication in the record that such a determination was made. Indeed, the only evidence in the record pertaining to the ordered addendum opinion is the June 22, 2022, scheduling order which explicitly states that the Veteran does not need to appear in person for an examination, despite scheduling an examination anyway. In short, there is simply nothing in the record to indicate that an examiner cannot provide the addendum opinions, as ordered by the Board, based on a review of the evidence of record. If an examiner determines that an examination must be conducted, that should be explained in writing. Further, although the SSOC states that the Veteran was a "no-show" for his examinations, as they were scheduled in July 2022, implying that the Veteran failed to appear for those examinations, the scheduling reports from that date in the claims file indicate that the examinations were cancelled at the request of the Veteran. However, there is nothing in the record to indicate that he specifically requested they be cancelled, which is different from a failure to appear. Additionally, on July 22, 2022, the Veteran submitted a written response to the SSOC requesting that his "no-show" status be removed from the record. Thus, it is unclear from the record whether the Veteran attempted to reschedule his examinations without success, whether he simply requested they be cancelled, or whether he failed to appear as scheduled. Regardless, the Board again notes that it did not request that an examination be scheduled in connection with either ordered opinion, and there is nothing in the record to indicate that the opinions could not be given without the Veteran appearing for an examination. In light of the above, the Board will again remand this appeal so that the addendum opinions may be obtained as previously ordered by the Board. Should, in the process of obtaining the addendum opinions, the examiner determine that the Veteran must appear for a new examination before the addendum opinion may be given, then the examiner must state as much, in writing, prior to scheduling the in-person examinations. In remanding the appeal, the Board notifies the Veteran that should a new examination be deemed necessary to render an opinion on either of the issues on appeal and thus be scheduled, he must appear for that examination. If he is unable to attend the examination as scheduled, he must provide good reason, and request the examination be rescheduled in a timely manner. Any future failure to appear for an examination, as deemed necessary by an examiner to render the opinion requested by the Board, may result in a final denial of his appeal. Wood v. Derwinski, 1 Vet. App. 190 (1991) (holding that the duty to assist is not a one-way street, and claimant must cooperate with VA in obtaining the evidence necessary to the adjudication of an appeal). The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Obtain an addendum opinion from a competent examiner regarding the Veteran's bilateral ankle condition. The complete claims file should be made available to the examiner selected to conduct the examination. The need for a new examination in left to the discretion of the examiner selected to provide the opinion. The examiner is requested to review the complete claims file and provide the following opinion: Is it at least a likely as not that the Veteran's bilateral ankle disability originated in service or may otherwise be attributable to any incident, illness or injury of active service? In rendering the opinion, the examiner is requested to provide a detailed explanation which must include discussion of the Veteran's treatment for foot and ankle pain on September 19, 1987, and July 16, 1989. The examiner must also discuss the Veteran's competent reports of ongoing ankle pain from the time of service, which he has testified that he self-treated with over-the-counter pain medication. 3. Obtain an addendum opinion from a competent examiner regarding the Veteran's right knee condition. The complete claims file should be made available to the examiner selected to conduct the examination. The need for a new examination in left to the discretion of the examiner selected to provide the opinion. The examiner is requested to review the complete claims file and provide the following opinion: Is it at least a likely as not that the Veteran's right knee disability originated in service or may otherwise be attributable to any incident, illness or injury of active service? In rendering the opinion, the examiner is requested to provide a detailed explanation which must include discussion of the Veteran's treatment for right knee pain on September 19, 1987. The examiner must also discuss the Veteran's competent reports of ongoing knee pain from the time of service, which he has testified that he self-treated with over-the-counter pain medication. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel