Citation Nr: 1330338 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-16 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2011; the transcript is of record. The appeal was remanded for additional development in August 2012 and in May 2013. In August 2013, the Veteran submitted additional argument along with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2013). 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 seeks service connection for a left knee disability. He contends that his left knee disability is either due to service, or is secondary to his service-connected right knee disability because it caused him to develop an altered gait. At an October 2012 VA examination, a VA examiner opined that the left knee disability is less likely as not proximately due to the Veteran's right knee disability. In providing his opinion and rationale, the examiner noted that a "report of medical exam" dated in November 1975 showed the Veteran had mild scoliosis, and a February 1976 service record indicated he was known to have had spina bifida occulta at an early age and a history of back problems. The examiner stated that it is well-documented throughout medical literature that scoliosis frequently contributes to an altered gait, and it is well-known within the medical community that spina bifida has the potential to cause an altered gait. The examiner opined that the Veteran's slightly-altered gait was more likely related to his history of scoliosis and spina bifida. The RO awarded service connection for chronic lumbosacral strain with degenerative joint disease of the thoracic spine and degenerative disc disease of the thoracolumbar spine in an April 2013 rating decision, based on a January 2013 VA examiner's determination that the Veteran's scoliosis and spina bifida had been aggravated as a result of service. At a VA examination in June 2013, a VA examiner determined that the Veteran's left knee disability has no relationship to his back or right knee disabilities. The only rationale offered was that there is no anatomical relationship connecting the back and/or right knee problems to his left knee. The June 2013 VA opinion and rationale are inadequate. The rationale is not fully explained (i.e. there was no discussion of any clinical reasoning and/or medical principles involved in the conclusions reached) and it fails to reconcile the contradictory opinion provided by the VA examiner in October 2012. In addition, there is no discussion of a seemingly positive medical opinion that was offered in August 2011 by Dr. Schmitz, a private orthopaedic surgeon. Dr. Schmitz noted that the Veteran sustained a right knee injury in the 1980's and as a result of the injury; he developed a compensatory gait that overstressed the left lower extremity. For these reasons, an addendum is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding private treatment records pertaining to his left knee disability. After securing the necessary authorization, obtain those records and any pertinent VA treatment records since June 2013. Any negative response must be in writing and added to the claim file. 2. After obtaining any additional records, arrange for the Veteran's claim file to be returned to the examiner that provided the June 2013 VA examination. If that examiner is unavailable, the claim file should be sent to another VA examiner with appropriate expertise. The examiner is to render an opinion as to whether it is at least as likely as not that the left knee disability is either caused or aggravated by the service-connected chronic lumbosacral strain with degenerative joint disease of the thoracic spine and degenerative disc disease of the thoracolumbar spine; or, caused or aggravated by the service-connected right knee chondromalacia patella with degenerative joint disease and limitation of extension. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner must reconcile his or her findings and opinions with any contradictory evidence, to include the October 2012 VA opinion and the August 2011 private medical opinion from Dr. Schmitz. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Then readjudicate the claim. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. Then return the case to the Board for further review. The appellant 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). _________________________________________________ C. CRAWFORD 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).