Citation Nr: 1300183 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-30 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a right leg/knee disorder to include as secondary to service-connected left fibula fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from November 1956 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran participated in an informal hearing conference at the RO in March 2010. The report of the conference is associated with the claims file. In April 2011, the Board remanded the claim for further development. 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 April 2011, the Board remanded the Veteran's claim for service connection for a right leg/knee disorder for a VA examination with nexus opinion. In pertinent part, the examiner was asked to provide an opinion as to whether a right leg/knee disorder was either caused by or permanently aggravated by the Veteran's service-connected fracture of the left fibula. The Veteran was provided with a VA examination in June 2011 and an addendum report was provided by the same examiner in August 2011. The Board notes that the opinion that the VA examiner gave does not have an adequate rationale to support the conclusion. Specifically, the VA examiner concluded that right knee osteoarthritis is less likely as not either caused by or permanently aggravated by the Veteran's service- connected fracture of the left fibula because there is a "lack of sound medical evidence in the record supporting this contention." The VA examiner's rationale does not explain the conclusion he came to, nor does his opinion discuss the Veteran's assertions. The Veteran contends that he has shifted his weight to his right side over a number of years due to his service-connected fracture of the left fibula. The Veteran has also stated that he has been limping for years and that this has affected his right leg and knee. As noted in the previous remand, the Veteran is competent and credible to attest to his symptoms and that he has favored his right leg due to his service-connected fracture of his left fibula. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). As the Veteran contends that his current right leg/knee disability stems from favoring his right leg due to his service-connected facture of the left fibula, the Board finds that the VA examiner's opinion is inadequate for rating purposes, and that a remand is necessary for a further addendum to the June 2011 VA examination report. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that if an examiner relied solely on the absence of evidence in the service medical records to provide a negative opinion and did not consider lay evidence of in-service symptomatology, his opinion is inadequate). Stegall v. West, 11 Vet. App. 268. Accordingly, the case is REMANDED for the following action: 1. The claims files should be forwarded to the VA examiner who examined the Veteran in June 2011 and provided an addendum opinion in August 2011. (If the examiner is not available, the claims file should be referred to another qualified examiner for the requested opinions.) After review of the entire record, including a copy of this Remand and the April 2011 Remand, the examiner should provide an opinion as to whether it is at least as likely as not that a right leg/knee disorder was either caused by or permanently aggravated by the Veteran's service-connected fracture of the left fibula. In rendering this medical opinion, the examiner is asked to comment on the Veteran's competent lay statements noted above in which he reported that he has favored his right leg for many years due to his service-connected fracture of his left fibula. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).