Citation Nr: 1308563 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 05-27 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disability, including as secondary to the service-connected left knee disability. 2. Entitlement to service connection for a bilateral hip disability, including as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service for 8 months prior to January 1971, to include during April 1970, and from January 1971 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, the Veteran's claims of service connection for bilateral ankle, bilateral hip, right knee and low back disabilities. In May 2008, the Board denied the Veteran's claims of service connection for a chronic low back disability, a bilateral ankle disorder, a bilateral hip disorder, and for a right knee disorder. The Veteran timely appealed the Board's May 2008 decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In September 2009, the Veterans Court granted a Joint Motion for Remand, vacating that part of the Board's May 2008 decision which had denied service connection for low back and bilateral ankle and hip disabilities. In February 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In February 2011, the Board denied the Veteran's claim of service connection for a low back disability and remanded the service connection claims for bilateral ankle and hip disabilities to the RO/AMC. In June 2012, the Board again remanded the issues currently on appeal to the RO/AMC. Review of the Veteran's Virtual VA (VVA) file shows that, in a March 2012 rating decision, the RO granted service connection for a right ankle disability, assigning a zero percent rating from June 23, 2003 to May 2, 2010, and a 10 percent rating thereafter. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly, an issue relating to a right ankle disability is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Unfortunately, as is explained below in greater detail, this appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred disabilities of the left ankle and bilateral hips during active service or, alternatively, his service-connected left knee disability caused or aggravated (permanently worsened) his current left ankle and bilateral hip disabilities. Unfortunately, the Board finds that another remand is warranted before the underlying claims can be adjudicated on the merits. In June 2012, the Board remanded the currently appealed claims in order to ensure compliance with a prior Board remand in February 2011 concerning the need for an adequate and thorough VA examination and opinion as to the etiology of the Veteran's claimed left ankle and bilateral hip disabilities. The Board directed that the March 2011 VA examination report be returned to the VA examiner who conducted it for an addendum in which he provided the opinions previously requested by the Board in its February 2011 remand. He specifically was asked to provide a complete rationale for the negative nexus opinions concerning the contended causal relationship between the Veteran's left ankle and bilateral hip disabilities and his service-connected left knee disability. He also was asked to opine whether it was at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral hip disability and/or left ankle disability, if diagnosed, was related to active service or any incident of service. In July 2012, the VA examiner provided an addendum opinion. He checked a box on the examination report indicating that the claimed condition was at least likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. He provided the following rationale for this opinion: [T]here is no evidence of complaint, injury, treatment or evaluation of a hip condition in service. The [V]eteran had a normal exam, normal xrays of the left ankle, NO PATHOLOGY. There is NO condition to service connect. The Board finds that the Veteran's claims file must be sent to the July 2012 VA examiner again for another addendum since he contradicted himself by stating that the Veteran's claimed disabilities were related to service but the rationale provided suggested a negative nexus between these disabilities and active service. Thus, the Board finds that the Veteran's claims file must be sent back to the VA examiner who provided the July 2012 addendum in order to obtain clarification of his previous opinions and to state whether the Veteran has current diagnosed left ankle or bilateral hip disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Medical Center in Houston, Texas, and ask the VA examiner who conducted the Veteran's March 22, 2011, VA joints examination and provided the July 2012 VA addendum to provide another addendum. The claims file and a copy of this remand should be provided to this examiner for review. This VA examiner is asked to state whether the Veteran has a diagnosed left ankle disability and, if so, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service or any incident of service. This examiner also is asked to opine whether the Veteran has a diagnosed bilateral hip disability and, if so, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. 2. If, and only if, the VA examiner who conducted the Veteran's March 22, 2011, VA joints examination and provided the July 2012 VA addendum opinion is not available, then schedule the Veteran for appropriate in-person VA examination to determine the nature and etiology of his left ankle and bilateral hip disabilities, including as secondary to a service-connected left knee disability. The claims file and a copy of this remand must be made provided to the examiner for review. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any left ankle and bilateral hip disabilities currently experienced by the Veteran, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorders, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left ankle disability, if diagnosed, is related to active service or any incident of service. This examiner also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral hip disability, if diagnosed, is related to active service or any incident of service. This examiner is asked to opine further whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected left knee disability caused or aggravated (permanently worsened) any left ankle or bilateral hip disability, if diagnosed. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that his left ankle and bilateral hip disabilities are related to active service. The examiner also is advised that the Veteran also contends that his service-connected left knee disability caused or aggravated (permanently worsened) his left ankle and/or bilateral hip disabilities. 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL T. OSBORNE Acting 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).