Citation Nr: 1303941 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 06-32 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of right knee surgery to include as secondary to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to May 1992; he also had reserve service, to include active duty for training (ACDUTRA) from December 1, 1995 to December 16, 1995 and from January 26, 1996 to January 27, 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned sitting at the RO in March 2011, and a transcript of the hearing is on file. In May 2011 and in September 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Reasons for Remand: To obtain a nexus opinion. The record shows that the Veteran submitted his claim for service connection for a right knee disorder in November 2005. At that time he indicated that he was seeking service connection for the disorder associated with his back condition. It is noted that he is service connected for scoliosis. He was sent a notice letter in January 2006 which discussed the requirements for direct and secondary service connection. The April 2006 rating decision denied service connection finding that the evidence did not show that the residuals of right knee surgery are related to his scoliosis or that the condition was incurred in service. In May 2006, the Veteran disagreed with the decision and this appeal ensued. In January 2009, the Veteran stated that his knee disorder was affecting his back and he was sent a notice letter in which he was informed that he was previously denied service connection for residuals of right knee surgery associated with scoliosis in April 2006 and that the decision was now final. He was informed that he had to submit new and material evidence to reopen the claim. This information is erroneous. VA must adjudicate all theories of entitlement reasonably raised by the record, including a liberal reading of a Veteran's statements. See Robinson v. Peake, 21 Vet. App. 545, 552-553 (2008). Moreover, a Veteran's alternative theories of entitlement to service connection are encompassed within a single claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). The Board must address all theories of entitlement presented by the Veteran. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new theory of etiology regarding the same underlying disorder does not result in a "new" claim for adjudication). Thus the claim based on secondary service connection is properly before the Board in conjunction with the current appeal, and to ensure that the Veteran's claim is given every possible consideration, that theory must be addressed. The VA examinations of record addressed the relationship (or lack thereof as determined by the examiner) between the Veteran's residuals of his right knee surgery and his military service; however, no opinion was rendered with regard to secondary causation. Such addendum opinion must be sought upon remand. See 38 U.S.C.A. § 5103A (d)(2) (West 2002 & Supp. 2012); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will ascertain if the Veteran has received any VA, non-VA, or other medical treatment for residuals of right knee surgery that is not evidenced by the current record. After securing any appropriate consent from the Veteran, VA must obtain any such treatment records that have not previously been associated with the Veteran's VA claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002 and Supp. 2012); 38 C.F.R. § 3.159(e)(1) (2012). 2. Upon the passage of a reasonable amount of time or upon the Veteran's response, the AMC/RO must arrange for the examiner who examined the Veteran in December 2012 to again review the claims files and offer an addendum opinion. If the examiner who provided the opinion in December 2012 is unavailable, the AMC/RO must obtain the requested opinion from another qualified health care provider after review of the claims files. The following considerations will govern the opinion: a. The claims folder, a copy of this remand, and all records on Virtual VA will be made available to the health care provider for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. b. After review of the claims files, the reviewer must discuss whether it is at least as likely as not that the Veteran's right knee disorder is due to or aggravated by his service-connected scoliosis. In all conclusions, the opinion must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, the reviewer should so state. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) c. If the reviewer responds to the above inquiry that he or she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. d. If it is determined that a current examination is needed in order to provide the requested opinion, an examination will be conducted and the Veteran must be notified prior to the examination of the consequences for failure to appear at the scheduled examination. A copy of this notification must be associated with the claims file. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail and correlated to a specific diagnosis. The report prepared must be typed. 3. After the above has been completed, the AMC/RO should review the claims files and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, the AMC/RO must readjudicate the issue of entitlement to service connection for residuals of right knee surgery to include as secondary to service connected disability, based on all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and must be afforded an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition 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).