Citation Nr: 1323011 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-36 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities of the right ankle and left knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to September 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The Board notes that after the RO's last adjudication of the claim in a March 2013 supplemental statement of the case, the Veteran submitted an opinion from a private physician, Dr. Blonsky. See 38 C.F.R. § 20.1304 (2012). The Board notes that the Veteran waived agency of original jurisdiction (AOJ) consideration of this evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, the Board's review of the record since the prior remand in January 2013 reveals that another remand is necessary. The purpose of the January 2013 remand was to schedule a VA examination and to obtain an opinion as to whether the Veteran's right knee disability was caused or aggravated by his service-connected disabilities of the left knee and right ankle. The VA examination was performed in March 2013. The examiner opined that the Veteran's right knee disability is less likely as not caused or aggravated by the Veteran's service-connected left knee and/or right ankle disabilities. In support of this opinion, the examiner stated that degenerative arthritis of the knee is very common in the general population at the Veteran's age. With respect to the left knee, the examiner noted that, in general, a severe limp over a protracted period of time could cause degenerative changes of the contralateral knee; but in this case, the Veteran had no such limp. As for the right ankle, the examiner stated that in general an ankle disability will not cause pathology in the ipsilateral knee and so the right ankle disability could not cause a right knee disability in the Veteran. The examiner indicated that even a surgically fused ankle will cause arthritis in the joints of the hindfoot but will not cause arthritis of the knee. Therefore, the examiner found that the Veteran's right ankle disability could not cause a right knee disability. However, while the examiner provided a rationale supported by specific facts and medical principles for whether the right knee disability could be caused by the left knee disability, the rationale for whether the right ankle could cause the right knee disability is barely more than conclusory. The examiner indicated that the right ankle could cause disability of the right hindfoot, but would not cause disability of the right knee without explanation for why a right ankle disability would cause one and not the other. An opinion that contains only data and conclusions is afforded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the examiner provided no rationale for the opinion that the right knee disability was not aggravated by the left knee and/or right ankle disabilities. For these reasons, the Board determines that another VA opinion should be obtained, to include scheduling another examination if necessary. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the March 2013 VA examiner for clarification of the opinions provided after that examination. The examination report must reflect that the claims file was again reviewed. The examiner must provide a more complete rationale for the opinion that the right ankle disability did not cause the right knee disability and a detailed rationale for the statement that the right knee disability is not aggravated by the left knee and/or right ankle disabilities. Specifically, the examiner should respond to the following: a. Provide a detailed rationale for the opinion that the Veteran's right ankle disability did not cause the right knee disability. While the Board appreciates that the examiner indicated what the right ankle could cause, i.e., disability of the right hindfoot, the examiner did not explain why a right ankle disability could cause a right hindfoot disability, but not a right knee disability except to state that the ankle disability would not cause an ipsilateral knee disability. The Board notes the examiner's statement that a severe limp would be seen in a case where the left knee disability caused a disability of the right knee. A similar discussion of body mechanics or other pertinent medical principles relevant to the why a right ankle disability would not cause a right knee disability would be useful to the Board. b. Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed right knee disability was aggravated beyond its normal progression by the Veteran's service-connected left knee disability and/or right ankle disability? A complete rationale must be provided for any opinion offered including a discussion of what facts support the opinion offered and why. In forming these opinions, the examiner must contemplate the Veteran's lay statements throughout the claims file with respect to his symptoms and medical history. If the March 2013 VA examiner is unavailable, the opinion should be obtained from an equally qualified medical professional. In addition, if it is determined that an opinion cannot be formed without another clinical examination, such examination should be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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 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).