Citation Nr: 1329647 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-03 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which found new and material evidence had not been received sufficient to reopen a claim of entitlement to service connection. A December 2011 Board decision later reopened the claim. The Veteran testified before a Decision Review Officer (DRO) in May 2010 and before the undersigned at a hearing in September 2010 at the RO in Waco, Texas. These transcripts have been associated with the file. This case was previously brought before the Board in December 2011 and November 2012 at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. 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 was afforded a VA examination in January 2012 for his right knee. While the examiner opined that the Veteran's left knee was not the cause of the Veteran's right knee degenerative joint disease, he did not offer an opinion as to whether the Veteran's service-connected left knee disability aggravated his right knee disorder. The examiner also referenced a 2010 basketball injury where the Veteran injured his right knee. As noted in the December 2012 statement, evidence of this injury has not been located in VA treatment records. Accordingly, an addendum opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the January 2012 examiner review the claims file and offer an addendum opinion. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should offer the following opinion: Is it at least as likely as not that the Veteran's right knee disorder was chronically worsened (aggravated) by his service-connected left knee disability? The examiner should also comment on his previous findings that the Veteran sustained a right knee injury in 2010 while playing basketball. The examiner should observe that the VA has been unable to locate treatment records verifying this incident or the extent of injuries caused by this incident. A detailed rationale should be provided for all opinions. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why such an opinion cannot be rendered. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 2. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable 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). _________________________________________________ KELLI A. KORDICH Acting 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).