Citation Nr: 0823540 Decision Date: 07/16/08 Archive Date: 07/23/08 DOCKET NO. 06-26 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability, also claimed as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a right hip disability, also claimed as secondary to a service-connected left knee disability. 3. Entitlement to service connection for a right knee disability, also claimed as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from November 1940 to August 1945. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal. The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. The veteran contends that his current disabilities of the low back, right hip, and right knee are related to his service. The veteran's service medical records reflect that the veteran injured his left knee in June 1944 in a fall from a bridge. While the records show treatment for a left knee disability, they are void of findings, complaints, symptoms, or diagnoses attributable to disabilities of the right knee, right hip, or low back. VA medical records dated in August 2005 reflect complaints of right leg and right knee pain. A private medical report dated in August 2005 reflects complaints of right hip and low back pain. The veteran provided a history of a left knee injury in service, and a right knee injury which occurred about thirty years earlier when a wheel fell on him. He was diagnosed with degenerative disc disease of the back, right knee instability, and left knee traumatic arthritis. In an August 2005 private medical statement, the veteran's physician opined that he had degenerative arthritis of the left knee as a direct result of a shrapnel injury in service. The physician further opined that due to the left knee injury, he became dependent on the right leg for walking and developed right knee and hip problems as a direct consequence of the left knee injury in service. She diagnosed him with degenerative arthritis of the low back, right hip, and right knee and opined that those disabilities were a direct consequence of the initial left knee injury. The veteran underwent a VA joints examination in January 2006. At that time, he was diagnosed with a remote left knee injury and it was noted that his left knee was considered to be the cause of his other joint problems, but did not appear to be a major factor producing disability at that time. With respect to the right knee, the veteran indicated that it was injured twenty years ago when a very heavy wheel fell onto the lower portion of the right thigh. Since then, his right knee tended to give way and he had pain in his thigh. He was diagnosed with DJD (degenerative joint disease) of the medial compartment of the right knee. With respect to the right hip, he complained of right hip pain and was diagnosed with degenerative arthritis. The examiner opined that it was likely that his abnormal right hip was causing referred pain into the thigh, which was mistakenly referred to as a knee problem. The examiner also opined that the pain from the hip could be enough that it would make the veteran feel like the knee was giving way at times. The veteran's back disability was diagnosed as degenerative changes of the lumbar spine. The examiner stated that he could not relate the veteran's right knee, right hip, and low back problems to his service- connected left knee disability and noted that degenerative joints occurred in the senior population. The examiner further opined that given the veteran's age, he was entitled to have some degenerative joints without "blaming them all on the left knee." While the veteran was afforded a VA examination in August 2006 examination, it remains unclear whether any low back, right hip, or right knee disabilities are related to his service, or to any service-connected disability. 38 C.F.R. § 3.159(c)(4). The Board thus finds that an additional examination and etiological opinion are necessary. In this regard, the examiner on remand should specifically reconcile the opinion with the other opinions of record, including the August 2005 private opinion and the January 2006 VA examiner's opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA examination for the purpose of ascertaining the nature and etiology of any low back, right hip, and right knee disabilities. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The review should be indicated in the examination report. A rationale for the opinion must be provided and the examiner should specifically reconcile the opinion with the August 2005 private opinion and January 2006 VA examiner's opinion. Specifically, the examiner should provide the following opinion: a) Diagnose any current low back disability. 1) If the veteran has a current low back disability, is it at least as likely as not (50 percent probability or greater) that any current low back disability is causally or etiologically related to his service? 2) Is it at least as likely as not (50 percent probability or greater) that any current low back disability is aggravated (permanently increased in severity beyond the natural progression of the disability) by his service-connected left knee disability? b) Diagnose any current right hip disability. 1) If the veteran has a current right hip disability, is it at least as likely as not (50 percent probability or greater) that any current right hip disability was incurred in or aggravated by his service? 2) Is it at least as likely as not (50 percent probability or greater) that any current right hip disability is aggravated (permanently increased in severity beyond the natural progression of the disability) by his service-connected left knee disability? c) Diagnose any current right knee disability. 1) If the veteran has a current right knee disability, is it at least as likely as not (50 percent probability or greater) that any current right knee disability was incurred in or aggravated by his service? 2) Is it at least as likely as not (50 percent probability or greater) that any current right knee disability is aggravated (permanently increased in severity beyond the natural progression of the disability) by his service-connected left knee disability? 2. Then, readjudicate the issues on appeal. If the decision remains adverse to the veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).