Citation Nr: 1007771 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 09-25 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a right knee disability, to include secondary to a right ankle disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to May 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). During the course of his appeal, the veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge in October 2009. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the report of a June 2008 VA examination, the doctor notes in essence that there was no documented injury or treatment regarding the right ankle in the Veteran's service treatment records. The examiner rendered an unfavorable medical nexus opinion as to the etiology of the current right ankle disability. The Veteran's service treatment records, however, show that he injured his right ankle in August 1966 and that the ankle was put in a cast. Therefore, another medical opinion is necessary for the adjudication of the claim. The Veteran's claim of entitlement to service connection for right knee disability should be considered not only on a secondary basis but also on a direct basis. In regard to the secondary service connection theory of entitlement, the VA examiner only addressed whether the right knee disability was caused by the right ankle disability. Secondary service connection may be granted for a disability that is proximately due to or the result of an established service- connected condition, or when a service-connected disorder aggravates another disability. 38 C.F.R. § 3.310 (2009); Allen v. Brown, 7 Vet. App. 439 (1995). The doctor did not address whether the right knee disability was aggravated by the right ankle disability. Moreover, the appellant's service treatment records show that he was treated for a contusion of the right knee. In light of the above, another medical opinion addressing aggravation and direct service connection is necessary for the adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for an orthopedic examination. The claims folder is to be made available to the examiner to review. The examiner must opine whether it is at least as likely as not, i.e., is there at least a 50/50 chance, that the Veteran has a current right ankle disability as result of the in-service right ankle injury, and whether it is at least as likely as not that the Veteran has a current right knee disability as the result of the in- service right knee injury. The examiner must also opine whether it is at least as likely as not that the right knee disability was caused or aggravated by the right ankle disability. A complete rationale must be provided for any opinion(s) offered. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Thereafter, the RO should readjudicate the claim of entitlement to service connection for a right ankle disability and the claim of entitlement to a right knee disability on a direct basis and as secondary to a right ankle disability. If any benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. 2009). _________________________________________________ A. C. MACKENZIE Acting 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) (2009).