Citation Nr: 1313339 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-21 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a right knee disability, to include as secondary to service-connected status post bimalleolar fracture of the left ankle. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In December 2011, the Board issued a decision, which, in part, denied the Veteran's claim on appeal. The Veteran appealed the Board's December 2011 decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2012, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Remand (Joint Motion) requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with Joint Motion. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In connection with the claim on appeal, VA examinations were obtained in January 2009 and June 2011 to determine the etiology of the Veteran's right knee disability. In January 2009, a VA examiner reported that "[i]n order for a joint condition to include adverse effects to another joint, the original joint condition must significantly alter body mechanics in a way such as to place undue stress on the contralateral joint." Because the examiner observed no alteration in the Veteran's body mechanics, the examiner concluded that the Veteran's right knee condition was "unlikely caused by the left ankle." The Veteran also denied any limp or abnormal gait, but told the examiner that his chiropractor had told him that he had an abnormal gait. The Board remanded the case in May 2011 for a new examination because the January 2009 VA examiner did not provide a nexus opinion regarding the Veteran's direct service connection contentions. The subsequent June 2011 VA examiner opined that the Veteran's right knee condition was less likely than not related to his service, as there was insufficient evidence of a chronic knee condition in service, and the Veteran reported that his current right knee condition had developed nearly five years after his separation from service. Upon physical examination, however, the examiner noted an antalgic gait. Further, a July 2009 VA orthopedic consultation note reported that physical examination revealed a slightly antalgic gait on the right side. The June 2012 Joint Motion found that the Board did not make a fully informed decision because the January 2009 and June 2011 VA medical opinions appeared to conflict as to whether the Veteran had an abnormal gait, citing D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that a medical opinion is adequate where it is based upon consideration of a veteran's prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). In compliance with the June 2012 Joint Motion, the Board finds that another examination and medical opinion is necessary to address the apparent conflicting findings as to the Veteran's gait and how any abnormal gait relates to his right knee disability and service-connected left ankle disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated treatment records for the Veteran from the Lincoln, Nebraska VA Medical Center, and all associated outpatient clinics, dated from April 2011 to the present. All attempts to obtain those records should be documented in the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's current right knee disability, to include as secondary to his service-connected status post bimalleolar fracture of the left ankle. All tests and studies deemed necessary should be accomplished and clinical findings should be reported in detail. The claims file and a copy of this Remand must be made available to the examiner and reviewed in conjunction with the examination. Based on a thorough review of the claims file, and in light any examination findings, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right knee disability is related to his military service, or was caused or aggravated by the Veteran's service-connected status post bimalleolar fracture of the left ankle. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. In rendering this opinion, the examiner must review and attempt to reconcile any conflicting opinions of record. In particular, the examiner must address the conflicting findings made by the January 2009 and June 2011 VA examiners as to whether the Veteran has an abnormal gait, and how any abnormal gait relates to his right knee disability and service-connected status post bimalleolar fracture of the left ankle. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 3. Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).