Citation Nr: 0844928 Decision Date: 12/30/08 Archive Date: 01/07/09 DOCKET NO. 03-33 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for osteoarthritis, left knee. 2. Entitlement to service connection for residuals, lumbar spine surgery, herniated disc L4-5, as secondary to osteoarthritis, left knee. REPRESENTATION Appellant represented by: Jerome H. Gress, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran had active military service from July 1961 to December 1964. This matter comes to the Board of Veterans' Appeals (Board) from an June 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for osteoarthritis, left knee, and for residuals lumbar spine surgery, herniated disc L4-5, to include as secondary to osteoarthritis, left knee. The veteran testified before the Board sitting at the RO in November 2004. A transcript of the hearing is associated with the claims file. In June 2005, the Board denied service connection for disorders of the left knee and lumbar spine. In December 2005, the Board denied reconsideration of the decision. In March 2008, the Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the appeal for performance of an examination of the left knee and subsequent consideration of the claim for service connection for the lumbar spine as intertwined with the claim for the left knee. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND In the June 2005 decision, the Board relied, in part, on a VA examination conducted in February 2004 in which the examining physician provided an opinion that the veteran's severe degenerative arthritis of the left knee was not related to a left knee injury in service or any other aspect of service. On appeal, the Court concluded that VA had failed to satisfy the duty to assist by providing an adequate medical examination. The Court concluded that the 2004 examiner did not indicate that he had reviewed records of recent knee surgery, and it was not clear whether those records had been associated with the file at the time of his examination. The examiner failed to provide a rationale for his opinion that the veteran's left knee arthritis was not related to service and failed to comment on a surgeon's statement that the disorder was consistent with an old injury. The Court further concluded that the claim for secondary service connection for a lumbar spine disorder was inextricably intertwined with the claim for the left knee. In October 2008, the Board received new evidence from the veteran that is material to the issues of the left knee and lumbar spine. The evidence includes a medical evaluation by a private neuro-radiologist who concluded that the veteran's left knee disorder is related to an injury in service and that the lumbar spine disorder is secondary to arthritis of the left knee. In view of the conflicting medical opinions and by direction of the Court, an adequate VA examination is necessary to decide the claim. 38 C.F.R. § 3.159 (2008). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA examination for the purpose of determining the etiology of the veteran's left knee and lumbar spine disability. Request that the physician review the claims file, including the 2004 VA opinion, October 2003 surgery report by a VA surgeon discussing an old posterolateral corner injury, and a September 2008 medical opinion from Dr. Bash. Following this review, the physician must: a. Give an opinion whether any disability of the left knee is at least as likely as not (50 percent or greater possibility) related to injury of the left knee in service or any other aspect of service. The physician should provide a detailed rationale and comment on the opinions/statements/records of a VA surgeon in October 2003, a VA physician in February 2004 and a private doctor in September 2008. b. If it is determined that the veteran's left knee is related to service, give an opinion whether any disability of the lumbar spine is at least as likely as not (50 percent or greater possibility) is secondary to the left knee disorder, to include whether the left knee disorder aggravates the lumbar spine disability. If aggravation is found, the examiner should identify that aspect of the lumbar spine disability which is attributed to such aggravation. The physician should provide a detailed rationale for all opinions given. In this regard, the physician, as part of his/her rationale should discuss the statements/opinions/records of the October 2003 surgeon, the February 2004 VA physician's report and the private opinion dated in September 2008. 3. Then, readjudicate the claim for service connection for osteoarthritis of the left knee and for residuals, lumbar spine surgery, herniated disc L4-5. If either decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case (SSOC) which includes all evidence, including medial opinions and records submitted following the Board's June 2005 decision. The veteran and his representative should be given an opportunity to respond. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ K. OSBORNE 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) (2008).