Citation Nr: 1310258 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-00 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a right knee disability, to include osteoarthritis, patellar subluxation, and a torn meniscus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to November 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO denied reopening the Veteran's claim for service connection for a right knee disorder on the basis that new and material evidence had not been received. The issue of service connection for a right knee disorder has been recharacterized as reflected on the title page in order to account for the Veteran's specific diagnoses in the record. See December 2000 to April 2002 private treatment records, VA Medical Center (VAMC) Providence, Rhode Island, problem list, August 2011 VA examination report; see also Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (holding that the Board must consider all claims raised either by the appellant or the evidence of record). During the pendency of this appeal, by October 2011 and March 2012 rating decisions, the RO granted the Veteran's claims for service connection for bilateral hearing loss, tinnitus, and residuals of a left second toe fracture, thereby constituting a full grant of the benefits sought on appeal. Thus, as these issues were granted in full, they are not in appellate status before the Board and need not be addressed further. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in May 2012. A transcript of that hearing has been associated with the claims file. In June 2012, the Board dismissed the Veteran's claim for service connection for malaria, as this issue had been withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). The Board also reopened the claim for service connection for a right knee disability, to include osteoarthritis, patellar subluxation and a torn meniscus and remanded the claim for additional development. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA outpatient treatment reports from September 2004 to June 2012. A supplemental statement of the case (SSOC) was issued in February 2013, which addressed this additional evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In a March 2013 Informal Hearing Presentation, the Veteran's representative raised a new theory of entitlement for the Veteran's right knee disability to include whether it was secondary to his service-connected left toe. Specifically, the representative argued that the Board should consider that the Veteran is service-connected for a fracture of the second toe of the left foot. He also pointed out that the residual pain from this condition could cause an altered gait, thus affecting the mechanics involved with ambulation on the right knee and requested an opinion be sought with respect to this matter. An April 2002 private medical record reflects that the Veteran had a mildly antalgic gait on the right. In addition, VA outpatient treatment reports from September 2004 to June 2012 reflect the Veteran had a history and diagnoses of a gait disturbance, initially noted in September 2006. Most recently, a history of a gait disturbance and osteoarthritis was noted in May 2012 with notations of the Veteran's right knee injury in the military and an abnormal toe on the left foot and he was diagnosed with a gait disturbance and osteoarthritis. The Board notes that where a veteran's service-connected disability causes an increase in a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). In considering that the private and VA medical evidence demonstrating a gait disturbance support the Veteran's representative's arguments regarding secondary service connection, the Board finds a new VA opinion is necessary to determine whether it is at least as likely as not (50 percent or greater probability) that a right knee disability, to include osteoarthritis, patellar subluxation and a torn meniscus, was caused or is aggravated by his service-connected residuals of a left second toe fracture. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen, 7 Vet. App. 439. The nature of the claimed disorder is such that a medical opinion based on a review of the claims folder and examination of the Veteran would be of great value in evaluating the claim. The Board also observes that the June 2012 remand instructions requested that an addendum to the August 2011 VA examination be provided and that the VA examiner who provided this addendum should consider both the lay statements and testimony provided by the Veteran as well as the photographs submitted by the Veteran regarding the jeep wreckage and his post-injury treatment, if medical information could be obtained from those photographs. Upon review of the July 2012 addendum, the Board observes that while the examiner addressed the Veteran's lay contentions and noted the claims file had been reviewed, it is unclear whether the photographs were considered or if medical information could not be obtained from the photographs. In this case, the same examiner, if available, should be asked to provide a statement regarding whether these photographs were reviewed and whether medical information could be obtained from them. If no review of such photographs was conducted, the examiner should be asked to review the photographs of the jeep wreckage and his post-injury treatment, and provide a statement as to whether medical information could be obtained from those photographs, and if so, whether this changes her previous opinion. Finally, the Veteran should be sent a VCAA letter addressing the matter of secondary service connection and any recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Sent the Veteran a VCAA letter addressing the matter of service connection for a right knee disorder, as secondary to a service-connected fracture of the second toe of the left foot. See 38 C.F.R. § 3.310. 2. Make arrangements to obtain a complete copy of the Veteran's treatment records from the VA Medical Center in Providence, Rhode Island, dated since June 2012. 3. Thereafter, an addendum opinion should be obtained from the same examiner who conducted the August 2011 examination and provided the July 2012 addendum, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. The examination report is to contain a notation that the examiner reviewed the claims file, to include the photographs submitted by the Veteran, the April 2002 private treatment report demonstrating findings of a mildly antalgic gait on the right and the September 2006 to May 2012 VA outpatient treatment reports demonstrating a gait disturbance. The examiner is asked to answer the following: (a) Furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability, to include osteoarthritis, patellar subluxation and a torn meniscus, was either (i) caused by or (ii) aggravated by his service-connected residuals of a left second toe fracture, to include any altered gait associated therewith. (b) The examiner is also asked to provide a statement as to whether the photographs submitted by the Veteran were reviewed and considered in conjunction with her July 2012 opinion. If the examiner did not review the photographs or is not available, examiner conducting this evaluation should be asked to asked to review the photographs of the jeep wreckage and his post-injury treatment, and provide a statement as to whether medical information could be obtained from those photographs, and if so, whether this changes the previous opinion furnished in July 2012. Please include a discussion of the reasons for all opinions provided. 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. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Next, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. Finally, readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ P.M. DILORENZO 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).