Citation Nr: 1313612 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-12 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for left and right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Counsel REMAND The Veteran served on active duty from September 1984 to October 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran contends that his claimed knee conditions are secondary to or aggravated by his service-connected left ankle disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, the regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). A July 2009 VA treatment note indicates that the Veteran was in active service from 1984 to 1994 and it is as likely as not that his arthropathy is service connected. There was no rationale given for this opinion. The Veteran was afforded a VA examination in April 2010. The examiner indicated that the Veteran's knee disabilities were not secondary to the left ankle disability as the Veteran has arthritis of both knees. The examiner's explanation was that, if the disability was caused by a limp in the left leg, the arthritis should be shown in only the right knee. There is no specific comment concerning aggravation. Additionally, there are VA treatment records in Virtual VA not considered by the most recent supplemental statement of the case dated in February 2013. A VA treatment note dated in March 2011 indicates that the Veteran has decreased left patella mobility due to his decreased dorsiflexion in the left ankle. Thus, there is a medical indication in the claims file not considered by the RO that Veteran's left knee disability is either secondary to or aggravated by the left ankle disability . Thus, the Veteran should be provided a VA examination to determine the current diagnoses of his bilateral knee disabilities and if any such disability has been aggravated by or is otherwise secondary to his service-connected ankle disability. The agency of original jurisdiction (AOJ) should then readjudicate the Veteran's claim with consideration of the evidence of record to include VA treatment notes located in Virtual VA. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of his claimed knee disabilities. The claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the claims folder review and the examination results, the examiner should provide an opinion concerning the current diagnosis(es) of any knee disabilities. For each disorder found, the examiner should opine whether such is attributable to the Veteran's period of active service or was caused or aggravated (made permanently worse beyond its natural progression) by a service-connected left ankle disability. If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, considering earlier medical evidence of record as a point of comparison, and also considering the Veteran's statements as to current and past symptoms. The examiner should specifically consider the VA treatment note dated in March 2011, which indicates that the Veteran has decreased left patella mobility due to his decreased dorsiflexion in the left ankle. An explanation should be provided for all opinions. The medical reasons for accepting or rejecting the Veteran's theory(ies) of entitlement should be set forth in detail. 2. Thereafter, the AOJ should readjudicate the claim, with consideration of all of the evidence of record. (The adjudication should contemplate the entire record, including the records filed in Virtual VA.) If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).