Citation Nr: 1303744 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 12-04 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right hip disability, secondary to service-connected subtalar arthrodesis of the right foot. 2. Entitlement to service connection for a right knee disability, secondary to service-connected subtalar arthrodesis of the right foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1956 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the RO which, in part, denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in July 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Service connection is in effect for subtalar arthrodesis of the right foot and the left foot, each evaluated as 20 percent disabling. The Veteran contends that service connection should be established for a right hip and right knee disability secondary to his service-connected right foot disability. At the hearing in July 2012, the Veteran testified that he walks with an altered gait due to his right foot disability and has had right hip and knee problems for the past three to four years. He also testified that he has been treated for right hip and knee problems at the VA Vancouver Medical Center and VA Portland hospital. Service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Claims of secondary service connection also include instances in which there is an additional increment of disability of a nonservice-connected disability due to aggravation by an established service-connected disability. Part of VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) is to provide the Veteran with an examination if, as in this case, there is competent lay or medical evidence of a current disability or persistent or recurrent symptoms of disability, and the evidence indicates that the current disability may be related to an event in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4)(i) (2012). As the Veteran has never been examined by VA to determine the nature and etiology of his right hip and knee symptomatology, further development is necessary prior to appellate review. The evidentiary record as currently constituted includes VA treatment records from Vancouver Medical Center and Portland hospital from March 2009 to March 2011. As the appeal must be remanded for a VA examination, any additional VA treatment records subsequent to March 2011, should be obtained and associated with the claims file. In light of the discussion above and to ensure full compliance with due process requirements, the claim is REMANDED to the AMC for the following actions: 1. Appropriate steps should be undertaken to obtain all outstanding treatment records for any right hip or knee problems from the Vancouver and Portland VA medical facilities since March 2011, and associate them with the claims folder. 2. The Veteran should be afforded a VA orthopedic examination by a qualified physician to determine the nature and etiology of any identified right hip and right knee disability. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should render an opinion as to whether is it at least as likely as not that any identified right hip or right knee disability is proximately due to, the result of, or aggravated by the service-connected subtalar arthrodesis of the right foot. A fully articulated medical rationale for the opinion expressed must be set forth in the examination report. The examiner should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. It would be helpful if the examiner included a description of any current manifestations of the right foot disability, including whether the Veteran has an altered gait, any unusual shoe wear, or other abnormal signs indicating a possible causal relationship between the service-connected right foot disability and any identified right hip or knee disability. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the examiner for completion of the opinion). 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 "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Following completion of the foregoing, the AMC must review the claims file and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. See 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, readjudicate the issues. This should include consideration of whether any identified right hip or right knee disability is proximately due to, the result of, or aggravated by the service-connected foot disabilities. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).