Citation Nr: 1301766 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-30 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disorder, claimed as secondary to service-connected postoperative osteochondritis dissecans of the left ankle with posttraumatic arthritis. 2. Entitlement to service connection for a left hip disorder, claimed as secondary to service-connected postoperative osteochondritis dissecans of the left ankle with posttraumatic arthritis. 3. Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected postoperative osteochondritis dissecans of the left ankle with posttraumatic arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from December 1963 to December 1967, and from April 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has disorders of the back, left hip, and left knee that were either caused or aggravated by his service-connected left ankle disability. He filed a substantive appeal as to these issues in July 2010; however, he did not indicate on the VA Form 9 whether he wanted a hearing before the Board. The Board finds that VA's duty to assist includes requesting clarification from the Veteran as to whether or not he wants a hearing on the issues of entitlement to service connection for a back, left hip, and left knee disorder. In addition, the Veteran was afforded a VA examination with regard to the back and left hip disorders in October 2009. The VA examiner opined that the back and left hip disorders were not "caused by or related to" his service-connected left ankle disability. However, the VA examiner did not address the question of whether the current back and left hip disorders were aggravated by the service-connected left ankle disability. Moreover, the Veteran was not afforded a VA examination with regard to the left knee disorder claim, presumably because the RO determined that there was no evidence of a current left knee disorder in its October 2009 rating decision. However, a March 1997 treatment note from a private physician indicates that mild degenerative changes were seen in both knees. For these reasons, the Board finds that a new VA examination is necessary to assist in determining whether the current back, left hip, and left knee disorders were either caused or aggravated by the service-connected left ankle disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to clarify whether or not he wants a hearing before the Board. All attempts to contact him and his response should be documented and associated with the claims file. If the Veteran wants a hearing before the Board, it should be scheduled for a date after completion of the VA examination (below). 2. Afford the Veteran a VA orthopedic examination to address the causation or etiology of any current back, left hip, and left knee disorders. If possible, the examination should be conducted by the October 2009 VA examiner (so that reexamination of the back and left hip are not necessary). Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should first identify any and all current back, left hip, and left knee disorders, if any. b. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any current back, left hip, or left knee disorder has been caused or aggravated (permanently worsened in severity) by the Veteran's left ankle disability. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. If the examiner opines that the Veteran's back, left hip, or left knee disorder was aggravated (permanently worsened in severity) by his left ankle disability, the examiner should attempt to identify the baseline level of severity of the back, left hip, or left knee disorder before the onset of aggravation. If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed back, left hip, and left knee disorders. 3. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ MARK W. GREENSTREET 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).