Citation Nr: 1321006 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 06-13 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left hip replacement, to include as secondary to service-connected disability. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for removal of the left meniscus. 4. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in September 2005 and October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was previously before the Board in January 2011, October 2011, and January 2013, at which time it was remanded for further development. In January and October 2011, the Board remanded the case to comply with the Veteran's request for a Board hearing. The Veteran subsequently provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. In January 2013, the Board remanded the case to obtain additional treatment records, and to accord the Veteran a VA medical examination that addressed the nature and etiology of his current left knee and left hip disorders. Additional treatment records have been obtained, and the Veteran was accorded a VA medical examination in February 2013 which the Board finds is adequate for resolution of the left knee and left hip claims. All other development directed by the January 2013 remand appears to have been substantially completed. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Despite the foregoing, for the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is still required with respect to the 38 U.S.C.A. § 1151 and TDIU claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current left knee disorder that was incurred in or otherwise the result of his active duty. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current left hip disorder that was incurred in or otherwise the result of his active duty, or as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for a grant of service connection for a left hip disorder are not met, to include as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants of the information or evidence needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). As noted in the Introduction, the Veteran's 38 U.S.C.A. § 1151 and TDIU claims are addressed in the REMAND portion of the decision below. Therefore, the VCAA adjudication that follows will only address the left knee and left hip claims. In this case, the Veteran was sent VCAA-compliant notification via letters dated in May 2005, March 2006, January 2008, May 2008, July 2008, and February 2013. This case was last adjudicated below via a March 2013 Supplemental Statement of the Case (SSOC) which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability rating(s) and effective date(s). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims to include from his accredited representative have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records to include from the Social Security Administration (SSA). Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the March 2012 Board hearing. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which relates either his current left knee disorder or left hip disorder to active service, or his left hip disorder to a service-connected disability. With respect to the aforementioned March 2012 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ accurately noted the appellate issues and asked questions to clarify the Veteran's contentions and treatment history. Although the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim(s). Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the March 2012 hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the was accorded a VA medical examination in February 2013 which included opinions that addressed the etiology of the current left knee and left hip disorders. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the February 2013 VA examination, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Analysis In the instant case, and for the reasons states below, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for disabilities of the left knee and left hip. The Veteran essentially contends that he injured his left knee while on active duty, provided details regarding this injury, and has had recurrent symptoms since service. He also contends that he developed a left hip disorder secondary to his left knee disorder. A review of the Veteran's service treatment records reflect that he indicated he had experienced "trick" or locked knee as part of a Report of Medical History completed in conjunction with his January 1971 enlistment examination. However, a March 1971 private medical statement reflects that this was due to Osgood-Schlatter disease of the right knee. There was no indication of a pre-existing left knee disorder, and the lower extremities were clinically evaluated as normal on the enlistment examination itself. Thereafter, there is no indication of any treatment for the left knee while on active duty, to include the injury described by the Veteran. There was also no indication of any in-service left hip problems. Further, the lower extremities were again clinically evaluated as normal on the September 1972 separation examination. Despite the lack of documented in-service findings regarding the left knee, the Veteran is competent, as a lay person, to describe such an injury and symptomatology such as pain. Further, the record contains a January 2009 lay statement from a service colleague corroborating the occurrence of the in-service injury. Although there is lay evidence of a in-service left knee injury, the Board reiterates that the Veteran's lower extremities were clinically evaluated as normal on the September 1972 separation examination. Moreover, there was no indication of any left knee or left hip problems on a December 1972 VA medical examination. In fact, the Veteran's musculoskeletal system was found to be normal on that examination. Further, the first indication of medical treatment for a left knee disorder appears to be in 1976, and were related to an injury from playing basketball in February of that year. The Veteran underwent surgery in July 1976 for a torn medial meniscus of the left knee. In short, the Veteran's left knee was found to be normal on two separate, competent medical examinations conducted contemporaneous with his separation from service; and that the first indication of medical treatment for the left knee was years after service and appears to be in regard to a post-service injury. The Board finds that it calls into question the Veteran's reliability as a historian regarding his left knee, particularly his account of recurrent symptomatology since the purported in-service injury. Moreover, the findings regarding the Veteran's left knee disorder show internal disability, such as torn meniscus and arthritis, which is not subject to lay observation. Therefore, the Board finds that competent medical evidence is necessary to determine whether the Veteran's current left knee disorder is etiologically linked to his active service. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board also observes that the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.) The Board further notes that the only competent medical opinion to address the etiology of the Veteran's left knee disorder is that of the February 2013 VA examiner, which is against the claim. Specifically, the examiner diagnosed degenerative joint disease, status-post total knee arthroplasty of the left knee. However, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Although the examiner noted the January 2009 lay statement corroborating an in-service injury, it was noted that there was no documentation of a left knee injury in the service records themselves; that the September 1972 separation examination showed normal lower extremities; and that it was not until 4 years later, in 1976, that the VA treatment records showed any left knee complaint and this was due to playing basketball. In other words, the examiner found that the evidence did not support a finding that a chronic left knee disability developed while on active duty or for years thereafter. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Here, the February 2013 VA examiner was aware of the Veteran's medical history based upon review of the VA claims folder, and noted the Veteran's account of his purported in-service injury as well as the supporting lay statement. The examiner's opinion is not worded in equivocal or speculative language. Moreover, the examiner supported the opinion by stated rationale with reference to pertinent findings regarding the left knee that are documented in the evidence of record. The Board also reiterates that no competent medical opinion is of record which refutes the opinion of the February 2013 VA examiner. Therefore, the Board finds that the VA examiner's opinion is adequate and entitled to great probative value regarding the etiology of the Veteran's left knee disorder. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current left knee disorder that was incurred in or otherwise the result of his active duty. No other basis for establishing service connection for the claimed disabilities is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. With respect to the left hip disorder, the Veteran has essentially contended that it was secondary to the left knee disorder that was incurred during his active service. However, for the reasons detailed above, the Board finds that service connection is not warranted for such a disability. The provisions of 38 C.F.R. § 3.310 do not provide for a grant of service connection for a disability that is secondary to another nonservice-connected disability. Therefore, service connection cannot be established on this basis. The Board further finds that even if service connection were established for a left knee disorder, the Veteran's left hip disorder claim would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). The affect one disability has upon another involves complex medical issues that are not subject to lay observation. In other words, the issue of whether one disability caused or permanently aggravated another is the type of relationship that competent medical evidence is required. Moreover, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service connection. The Board has already determined that the Veteran's contentions do not constitute competent medical evidence. The Board also notes that the February 2013 VA examiner opined that the Veteran's left hip was less likely than not (less than 50 percent probability) proximately due to the Veteran's left knee. In support of this opinion, the examiner stated that review of the claims file, physical examination, and review of the medical literature did not support the theory that dysfunction in one joint causes dysfunction in another joint. The Board has already determined that this examination is adequate for resolution of this case, and that there is no competent medical evidence which refutes the opinions of this VA examiner. The Board further observes that the Veteran is service-connected for hemorrhoids, but that there is no indication that this disability caused or aggravated the left hip disorder. Moreover, the Board reiterates that the record, to include the Veteran's own contentions, reflect the left hip disorder developed years after service and that there was no injury or disease thereof while on active duty. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current left hip disorder that was incurred in or otherwise the result of his active duty, or as secondary to a service-connected disability. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. ORDER Service connection for a left knee disorder is denied. Service connection for a left hip disorder is denied, to include as secondary to a service-connected disability. REMAND As already noted, the Veteran underwent surgery for a torn medial meniscus of the left knee in July 1976. Specifically, he underwent a left medial meniscectomy at a VA facility. However, he contends, in essence, that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 because they removed the entire cartilage instead of only repairing the tear. Under the current provisions of 38 U.S.C.A. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). No competent medical examination and/or opinion is of record which explicitly addresses the Veteran's contentions regarding the July 1976 left medial meniscectomy. The Board finds that such an examination and opinion is necessary for resolution of this case. Consequently, a remand is required for this development. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Inasmuch as the resolution of the 38 U.S.C.A. § 1151 claim may affect the resolution of the TDIU claim, the Board finds that they are inextricably intertwined. Therefore, the Board will defer adjudication of the TDIU claim until the development directed for the 38 U.S.C.A. § 1151 claim has been completed. The Board is cognizant of the fact that the 38 U.S.C.A. § 1151 claim is essentially based upon the assertion the July 1976 VA surgical procedure caused disability/additional disability of the left knee, and that the Veteran has contended his left hip is secondary to the left knee. Nevertheless, as detailed above, the Board found that even if service connection were established for a left knee disorder, the claim would still be denied as the evidence does not show such a secondary relationship and the February 2013 VA examiner's opinion is against such a finding. Therefore, the Veteran has not been prejudiced by the Board adjudicating the left hip claim while remanding the 38 U.S.C.A. § 1151 claim. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an examination to address his claim under 38 U.S.C.A. § 1151. The claims folder should be made available to the examiner for review before the examination. The examiner should then answer the following questions: a. Did the Veteran develop any disability/additional disability as a result of the July 1976 left medial meniscectomy? b. If the Veteran developed any disability/additional disability as result of the July 1976 left medial meniscectomy, then is the proximate cause of this disability the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination? Is the proximate cause of this disability/additional disability an event not reasonably foreseeable? A clear rationale for all opinions should be provided, together with a discussion of the facts and medical principles involved. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in March 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs