Citation Nr: 1322141 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-23 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Augusta, Maine, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right knee disorder, to include as secondary to service-connected left knee arthritis. Jurisdiction in this case lies with the Detroit, Michigan RO. The Veteran filed a notice of disagreement (NOD) in June 2008, and a statement of the case (SOC) was issued in May 2009. He filed a May 2010 substantive appeal (VA Form 9), which was not timely received. 38 C.F.R. § 20.302(b) (2012). However, the RO continued to take action to indicate that this issue was on appeal, which included issuing a supplemental statement of the case (SSOC) in March 2010, and scheduling the Veteran for an April 2011 Videoconference Board hearing. Therefore, since continuing action and development has been performed in the instant claim, the requirement that there be a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet.App. 37 (2009). The Veteran and his spouse testified at an April 2011 Videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. 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 The Veteran asserts, in essence, that service connection is warranted for a right knee disorder based upon service incurrence. He also maintains, in the alternative, that his right knee disorder is secondary to his service-connected left knee arthritis. The Veteran indicates that he sustained injury to his right knee at the same time he injured his left knee in service. He stated that he was blown off the back of a truck in Vietnam when the truck he was riding in backed over a land mine. He stated that initially, his right knee was also hurt, but that his left knee was more severe. He later maintained that he no longer had problems with his right knee after service. Thereafter, because of his left knee injury, he limped and his gait on the left side had an adverse effect on the right knee and resulted in arthritic changes, requiring a right knee total knee replacement. Because the Veteran indicated that his right knee disorder was caused in the alternative, by his service-connected disability, the provisions of applicable regulation, 38 C.F.R. § 3.310, are of import. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a)(b). That regulation permits service connection not only for disability caused by service- connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet.App. 439, 448 (1995). The Veteran underwent a VA examination in August 2010. The examiner did not address the issue of aggravation of the right knee by the Veteran's service-connected left knee disability. 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. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. After the above development has been completed and all outstanding records have been associated with the claims file, if any, the Veteran should be scheduled for a VA orthopedic examination of his right knee. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) All indicated studies should be performed. After examination of the Veteran and review of the claims folder, the examiner should appropriately diagnose the Veteran's right knee disorder. Thereafter, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that: The Veteran's right knee disorder was due to, or the result of an injury during active service. The Veteran's service-connected left knee arthritis caused or aggravated his right knee disorder. If it is determined that aggravation beyond the natural progress of the right knee exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The claims file must be made available to the examiner for review and the examiner should indicate in his/her report whether or not the claims file was reviewed. The examiner should also consider the statement made by the Veteran at his Videoconference hearing indicating, in pertinent part, that his left knee gave out and he fell and further injured his right knee disorder. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).