Citation Nr: 1330292 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-25 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a left ankle disorder. 2. Entitlement to service connection for a left hip disability, to include as secondary to a left ankle disorder. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from July 1976 to June 1979. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) regional office in Waco, Texas (RO). In April 2012, the Board denied a rating in excess of 20 percent for a left ankle disorder, described as residuals of a fracture; reopened the claims for entitlement to service connection for left knee and left hip disabilities, to include as secondary to a left ankle disorder; and remanded the reopened claims back to the RO for nexus opinions on whether the disabilities at issue are causally related to service or to service-connected disability. 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 This case was remanded by the Board in April 2012 to obtain nexus opinions on whether the Veteran's current left knee and left hip disabilities are causally related to either his military service or his service-connected left ankle disorder. Although an examination of the Veteran was obtained in April 2012, the examiner was unable to provide a nexus opinion because the claims file was not available, as required. A nexus opinion was provided by another health care provider in December 2012, based on a review of the claims file. The Board would note, however, that the December 2012 opinion is inadequate because it is contradictory and is not adequately supported by the rationale provided. Although the December 2012 opinion concluded that it is at least as likely as not that the Veteran's left knee and left hip conditions originated either in service or within one year of service discharge because the Veteran complained of left knee and left hip problems in his August 1979 compensation application, the opinion appears to contradict itself by noting that there are no consultations, diagnosis, or treatment of the knee and hip for more than 20 years after service and by noting that the Veteran's post-service employment as a truck driver and his post-service leisure activities were causally related to his knee and hip osteoarthritis. The reviewer did not adequately discuss the medical evidence on file, to include the medical reports dated from August 1979 to November 1987, which include a VA examination in October 1979 and an April 1982 reference to an injury to the left hip in a motorcycle accident. Consequently, the Board finds that additional development is warranted prior to final Board adjudication of the issues on appeal. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC will send the claims file to the VA reviewer who evaluated the Veteran for left knee and left hip disabilities in December 2012 and ask her to again review the evidence of record and provide an additional opinion, with a clear rationale based on the evidence of record, on whether the Veteran's current left knee and left hip disabilities are at least as likely as not (50 percent probability or more) caused by or are otherwise related to his active military service. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that arthritis of the left hip or left knee was present within a year of discharge from service. Lastly, if the opinion on direct service connection is negative, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee or left hip disabilities were caused or aggravated by his service-connected left ankle disability. If the reviewer who provided the opinion in December 2012 is not available, the RO will obtain an opinion from another appropriate medical professional, to include the examiner who examined the Veteran in May 2012. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2013). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file, including a copy of this remand, must be made available to the reviewer/examiner in conjunction with the examination. The rationale for all opinions expressed must be explained. The above opinion should include a discussion of the medical evidence of record, to include the findings on VA evaluation in October 1979 and the VA treatment records from August 1979 to July 1982, which includes information on the April 1982 motorcycle accident that injured the Veteran's left hip. The reviewer/examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to finds in favor of service incurrence or causation as to find against such matters. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The reviewer/examiner is further advised that aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 2. Thereafter, the AMC/RO will consider all of the evidence of record and re-adjudicate the Veteran's claims for entitlement to service connection for a left knee disability and for a left hip disability. If either of the benefits sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time will be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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 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 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).