Citation Nr: 1319795 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-20 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for left knee disability, to include as due to the Veteran's service-connected lumbar spine degenerative disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from September 1979 to September 1982 with additional service in the reserves. This matter came to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in May 2011 and March 2012 for further development. Additional evidence and waiver of RO review were received in November 2012. The issues of entitlement service connection for left side radiculopathy secondary to service-connected low back disability, entitlement to an increased rating for lumbar spine degenerative disease (currently evaluated as 20 percent disabling) and entitlement to an increased rating for right lower extremity radiculopathy (currently evaluated as 10 percent disabling) have been raised by the record (in a statement received in February 2012), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Per the Board's March 2012 remand, the Veteran was afforded a VA examination in March 2012. The opinion provided appears inadequate regarding secondary service connection as it was not couched in terms of whether it is at least as likely as not (a 50% or higher degree of probability) that the current left knee disability is proximately due to or caused by the Veteran's service-connected lumbar spine degenerative disease; and whether it is at least as likely as not (a 50% or higher degree of probability) that current left knee disability has been aggravated by the Veteran's service-connected lumbar spine degenerative disease. Instead, the VA examiner noted that if the back disability affected the left leg as claimed, "this would cause more weight to be placed on the right side; thus, this would not be expected to aggravate the left knee." The RO should obtain an adequate opinion that properly addresses whether service connection is warranted on a secondary basis. Additionally, it appears that there are outstanding medical records. The March 2012 VA examiner listed several records that he had reviewed that were not included in the Veteran's claims file. He mentioned reviewing treatment records from "outside providers" including one from a chiropractor who noted left sided leg symptoms from the Veteran's back. The Board acknowledges that in November 2011, Randy L. Blair of CareMore Chiropractic Centers noted that the left knee pain "is directly related to the initial injury to his lower back." It is unclear to the Board whether the VA examiner was referring to this aforementioned record. To be sure, the RO should seek clarification from the Veteran and obtain any outstanding medical records. The VA examiner further mentioned a treatment record from the VA pain clinic denoting left radicular symptoms. The Board notes that a review of the Veteran's Virtual VA file shows such notation in a January 2012 orthopedic surgery consult, however. VA records from the pain clinic should be obtained. Although the Board regrets further delay, the case must be returned to the RO for additional development. Accordingly, the case is REMANDED for the following actions: 1. The RO should secure copies of outstanding VA clinical records from the New Mexico VA medical center. The Board is particularly interested in the visit to the pain clinic that noted right sided leg symptoms. If records are unavailable, the reason for their unavailability must be noted in the record (along with a notation of the scope of the search for the records), and the Veteran should be so notified. 2. The RO should contact the Veteran to identify the private treatment records mentioned at the March 2012 VA examination report, and appropriate action should be taken to obtain these treatment records. 3. The claims file should be returned to the March 2012 VA examiner for an addendum opinion. After reviewing the March 2012 report and claims file as necessary, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the current left knee disability is proximately due to or caused by the Veteran's service-connected lumbar spine degenerative disease? b) Is it at least as likely as not (a 50% or higher degree of probability) that current left knee disability has been aggravated by the Veteran's service-connected lumbar spine degenerative disease? A rationale should be provided. If the March 2012 VA examiner is no longer available, the Veteran should be scheduled for another appropriate examination, and the claims file should be made available to that examiner for review in connection with the examination. After reviewing the file and examining the Veteran, the examiner should respond to the above-posed questions. 4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).