Citation Nr: 1032864 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-36 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability. 2. Entitlement to service connection for a right hip disability secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from January 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2005 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. The Veteran requested a hearing before the Board on his November 2006 VA Form 9, substantive appeal, however, withdrew his hearing request in a March 2010 written statement. 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 A preliminary review of the record discloses a need for further development prior to final appellate review regarding the Veteran's claims of service connection for left knee and right hip disabilities as secondary to service-connected right knee disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During the course of the appeal, 38 C.F.R. § 3.310 was amended. The amended 38 C.F.R. § 3.310(b), effective October 10, 2006, institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. The Veteran was not provided with notice of the amendments to 38 C.F.R. § 3.310; thus, the RO should provide the Veteran with such notice prior to appellate review. 38 U.S.C.A. § 5103(a). The Veteran underwent a VA examination in March 2009 during which the examiner noted the Veteran's history and current diagnoses of total left knee and right hip replacements. The examiner opined that "[a] case could be made that limping caused by his right hip accelerated an underlying degenerative osteoarthritic change of his right hip and left knee." However, the cause of the Veteran's right hip and left knee problems was more likely underlying degenerative osteoarthritis aggravated by his weight and other activities. He further opined that the limp may have caused some aggravation, however, it was not possible to give a totally accurate assessment of how much each one of these factors played in the Veteran's eventual requirement for surgery. The examiner concluded,"[a]t most, I would not feel that it is more likely than not that this was the cause of his problem but that it was definitely less than 50 percent of the cause of his left hip and knee problems." The Board finds that are multiple interpretations of the aforementioned VA examiner's opinion, as a portion of the opinion suggests there may be some aggravation of the Veteran's non- service connected disabilities by his service-connected right knee disability, and his final opinion is in contradiction to this finding. When a medical examination report is susceptible to multiple fair, but inconsistent, meanings, the Board must return the report to the examiner for clarification. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In view of the above, the Board finds that a remand is required to obtain a clarifying medical opinion as to the relationship, if any, between the Veteran's service- connected right knee disability and his diagnosed right hip and left knee disabilities, to include whether there is any aggravation of a non-service-connected disability by a service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.310, 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Lathan v. Brown, 7 Vet. App. 359 (1995). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with updated notice regarding his claims for secondary service connection, including notice of the amendment to 38 C.F.R. § 3.310. The Veteran and his representative should be given an opportunity to respond. 2. Schedule the Veteran for an appropriate VA examination in order to determine the current nature and likely etiology of any left knee and any right hip disabilities. The claims folder should be made available to the examiner for review. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records in the Veteran's claims file, particularly, the March 2009 VA examination report. The examiner should then offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's left knee has been caused or aggravated by his service- connected right knee disability. If the Veteran's left knee disability is aggravated by his service-connected right knee disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the left knee before the onset of aggravation. The examiner should then offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's right hip has been caused or aggravated by his service- connected right knee disability. If the Veteran's right hip disability is aggravated by his service-connected right knee disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the right hip before the onset of aggravation. The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The examiner must provide a rationale for each opinion. 3. When the development requested above has been completed, readjudicate the issues on appeal. Readjudication of the issues should include consideration of the prior and amended versions of 38 C.F.R. § 3.310. If any decision remains adverse, issue a supplemental statement of the case to the Veteran and his representative and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ M. E. LARKIN 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).