Citation Nr: 1325063 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-38 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability of the left knee. 2. Entitlement to service connection for a disability of the right knee. 3. Entitlement to service connection for disability of the right ankle. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his cousin ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2008 the Veteran testified before the undersigned Veterans Law Judge at the Board in Washington, D.C. A copy of the transcript of that hearing has been associated with the claims folder and has been reviewed. In November 2011 this matter was last before the Board, at which time the issue on appeal was characterized as entitlement to service connection for a disability of both lower extremities. Following that remand, the Veteran was afforded a VA examination in February 2012. The examination was conducted, in part, to obtain diagnoses for the Veteran's claimed disability of the lower extremities. The examination resulted assessments of disabilities of each knee and each ankle. In a July 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for a left ankle sprain. Thus, this issue is not on appeal. The Board notes that herein above, it has characterized the claims as for service connection of a disability of the left knee, a disability of the right knee and a disability of the right ankle. A claim for service connection of a disorder may be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As the record also discloses diagnoses of disabilities of the left knee, right knee and right ankle, and that the Veteran seeks service connection for these disabilities in particular, the Board has re-characterized the claim to address these diagnoses. See February 2012 VA examination report in which Veteran references his knees and ankles. The issue of entitlement to service connection for a right eye cataract has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is 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 A July 2008 VA record documents a complaint of worsening knee pain and an abnormal X-ray. A MRI was performed at this time, which showed small left knee joint effusion and fluid between MCL, medial femoral condyle and medial tibial plateau where osteoarthritic changes were present. It was felt that these findings could be due to synovial inflammation or partial MCL injury. Subsequent records document severe degenerative joint disease and that a knee replacement had been discussed. When this matter was last before the Board, it was remanded to obtain a VA examination and opinion. The examiner was asked to identify the disabilities the Veteran complained of and for which he sought service connection, and offer etiological opinions for each such disability assessed. The examiner assessed bilateral patella femoral syndrome and bilateral ankle sprain. But for the now service-connected left ankle, he offered negative etiological opinions. The matter must be remanded to ensure compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). In this regard, the Board notes that the examiner indicated that he had reviewed the entire claims file and related that his review thereof did not document any treatment related to the knees. However, as the Board has referenced above, the Veteran did indeed seek such treatment and osteoarthritis of the left knee was assessed, in contrast to the examiner's assessment of patella femoral syndrome. Under these circumstances, the Board cannot conclude that the examiner thoroughly reviewed the claims file. Accordingly, it must be returned to the examiner for an addendum opinion. See 38 C.F.R. § 4.2. Lastly, the Board notes that in the aforementioned July 2012 rating decision, the AMC granted entitlement to service connection for a left ankle sprain, and in a July 2012 Supplemental Statement of the Case (SSOC), the AMC readjudicated the claim for service connection of a disability of the right lower extremity. Thus, a SSOC was not issued on the issue of entitlement to service connection for a left knee disability, and this issue must be remanded for the Agency of Original Jurisdiction (AMC) to do so. See 38 C.F.R. § 19.31(b)(1). Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to the examiner who performed the February 2012 examination (if available) to obtain an addendum opinion as to the etiology of the Veteran's claimed disabilities of the left knee, right knee and right ankle. The examiner is asked to review the February 2012 examination report in conjunction with the claims file and offer an opinion on whether it is at least as likely as not (i.e., probability greater than 50 percent) that the diagnosed disabilities of the left knee, right knee and right ankle had their onset during his period of active service, or if any such disabilities are otherwise related to service, including whether any such disability is as likely as not permanently aggravated beyond its natural progression by the Veteran's now service-connected left ankly sprain. In conjunction with the review, the examiner should specifically note treatment records documenting post-service treatment of the knees, including a July 2008 VA record showing an abnormal X-ray, a MRI was showing small left knee joint effusion and fluid between MCL, medial femoral condyle and medial tibial plateau where osteoarthritic changes were present, and subsequent records documenting severe degenerative joint disease. If, but only if, the examiner who performed the February 2012 examination finds that another examination is necessary then one should be scheduled. If the examiner who performed the February 2012 examination is unavailable to complete this addendum, the claims file should be provided to another appropriate examiner for that purpose. The claims folder must be made available to the examiner for review in conjunction with the addendum or examination. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After the development directed above has been completed to the extent possible, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a SSOC as to any the three issues noted above not so granted and afforded an opportunity to respond before the record is returned to the Board 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). _________________________________________________ MICHAEL A. PAPPAS 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).