Citation Nr: 1010171 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 08-23 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, claimed as degenerative arthritis. 2. Entitlement to service connection for a right ankle disability, claimed as ankle sprain. 3. Entitlement to service connection for a right hip disability, claimed as degenerative arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to April 1959. This appeal arises from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claims for service connection for right knee arthritis, right ankle sprain, and right hip arthritis. 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 Service connection has been established for the residuals of a left ankle injury during service, with tendonitis, and a 20 percent disability rating is presently assigned. Service connection has also been established for a disability of the left knee secondary to the service-connected left ankle disability. Presently, the left knee has two separate disability ratings assigned: 10 percent for instability, and 10 percent for degenerative joint disease (arthritis). It is not contended, nor does the evidence show, that the claimed disabilities of the right knee, right ankle, and right hip had their onset in service or were aggravated during service, or that arthritis of these joints manifested during the first post service year. Rather, the Veteran's claim is that these three disabilities have been caused by the service-connected left ankle and knee disabilities. The Veteran's assertion is that the left ankle injury during service and the service-connected residuals are essentially the cause of every subsequent musculoskeletal disorder, including arthritis, with which he has ever been diagnosed. Service connection is warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disability. 38 C.F.R. § 3.310 (2002). Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. A Supplemental Statement of the Case (SSOC) dated October 2008 is the most recent review of the Veteran's claims by the RO. In January 2009, the Veteran submitted additional medical evidence including a letter from a private physician dated January 2009 and a private MRI report dated November 2008. He did not waive review of this evidence by the RO. Accordingly, remand is required for the agency of original jurisdiction (AOJ) to review this evidence in the first instance. In July 2007, a VA Compensation and Pension examination of the Veteran was conducted. The examiner reviewed the Veteran's medical history, including prior radiology reports and offered a reasoned medical opinion as to the etiology of the Veteran's claimed right knee, ankle, and hip disabilities. However, the examination report did not indicate current x-ray examination of the joints in question, and the medical opinion could not consider the more recent medical evidence provided. Another examination is necessary in light of the recently submitted medical evidence. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA Joints examination. The report of examination should include a detailed account of all manifestations of all disabilities of the right knee, right ankle, and right hip found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Specifically, x-ray examination of both knees, both ankles, and both hips should be conducted. The examiner must review the Veteran's service treatment records and medical history. The examiner is informed that medical treatment records reveal that the Veteran has sustained post-service injuries to his right hip and right knee. The examiner should provide opinions as to whether: * It is at least as likely as not (50 percent or greater probability) that any current disability of the right knee, right ankle, and/or right hip is related to the service-connected left ankle or left knee disabilities. * It is at least as likely as not (50 percent or greater probability) that the service-connected left ankle and left knee disabiities aggravate, or cause any additional impairment of earning capacity to the current disabilities of the right knee, right ankle, and/or right hip. * If it is determined that the current disabilities on appeal are not related to the Veteran's service- connected disabilities, the examiner should provide an opinion as to the cause of those disabilities, including a discussion of whether or not the disabilities are more likely related to, or caused by, the general aging process based upon radiology evidence of generally equal and bilateral degenerative changes of the right knee, right ankle, and right hip joints when compared to the same joints on the left, and whether or not they are more likely related to, or caused by the Veteran's post- service injuries. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide a complete rationale for all conclusions reached. 2. Following the above, readjudicate the Veteran's claims for service connection for right knee, right ankle and right hip disabilities. The evidence submitted in January 2009 must be translated and considered. If any benefit on appeal remains denied, a SSOC should be issued, and the veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ RONALD W. SCHOLZ 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).