Citation Nr: 1332260 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-39 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder, including as secondary to a service-connected disability. 2. Entitlement to service connection for a right hip disorder, including as secondary to a service-connected disability. 3. Entitlement to service connection for a bilateral knee disorder, including as secondary to a service-connected disability. 4. Entitlement to service connection for a right ankle disorder, including as secondary to a service-connected disability. 5. Entitlement to service connection for a right foot disorder, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1980 to June 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2013, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is available for review. 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 is claiming service connection for low back, right hip, bilateral knee, right ankle and right foot disabilities. While his primary contention is that these disabilities were caused or aggravated by his service connected left foot and ankle disabilities, he has not precluded consideration of direct service connection. Review of the Veteran's service treatment records (STRs) shows that the Veteran was treated for low back pain and pain in the right groin area while on active duty. He has also testified that he had pain in his low back, right hip, knees, right foot and right ankle throughout his period of active duty. It is noted that a veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). No medical opinion regarding direct service connection has been obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Setting forth the criteria under which VA is required to obtain an examination.) In addition, with respect to the issue of secondary service connection, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Here, however, while the Veteran was examined by VA in March 2008, at which time the examiner rendered an opinion that the claimed disabilities were not proximately due to or the result of his service-connected left foot and ankle disabilities, and the record also contains a July 2013 private chiropractor's statement in which the chiropractor states that various problems of the spine, leg, ankle, and foot are due to the Veteran's service-connected left foot and ankle disabilities, with the exception of bilateral genuvalgum, the two examiners do not diagnose the same disorders. More specifically, the March 2008 VA examiner diagnosed degenerative disc disease of the lumbar spine, interchanteric bursitis of the right hip, and chronic strain/fasciitis/hyperpronation of the right ankle/foot, whereas the July 2013 private chiropractor diagnosed degenerative arthritis of the spine. Moreover, with respect to the bilateral genuvalgum (knock-knee), although the March 2008 VA examiner believes that this condition is not related to the Veteran's service-connected left foot and ankle disabilities, the July 2013 private chiropractor believes that it will cause increased valgus stress at the knee "leading to a Genu Valgus distortion," and neither examiner commented on whether the left foot and ankle disability could have caused or aggravated the bilateral genuvalgum. In fact, neither examiner commented on the probability that the left foot and ankle aggravated his low back, right hip, bilateral knee, right ankle, or right foot disabilities. Consequently, the Board finds that the Veteran should be provided with an examination by a new examiner for the purpose of determining the current diagnoses of all disabilities of the lumbar spine, right hip, bilateral knees, right ankle, and right foot, and the likelihood of whether these diagnoses were directly related to the Veteran's period of active service and/or caused or aggravated by his service-connected left foot and ankle disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a medical examination by an examiner other than the examiner who examined him in March 2008 to ascertain the current nature and extent of his low back, right hip, bilateral knee, right ankle, and right foot disorders. The examiner should be requested to render an opinion regarding the following: a. The current diagnoses of all disabilities of the lumbar spine, right hip, bilateral knees, right ankle, and right foot. b. Whether it is at least as likely as not (probability 50 percent or more) that any low back, right hip, bilateral knee, right ankle, or right foot disability is directly related to service. c. Whether it is at least as likely as not that any low back, right hip, bilateral knee, right ankle, or right foot disability is proximately due to, or aggravated by, his service-connected left foot and ankle disabilities. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered, and the Veteran should be given an opportunity to respond to the SSOC prior to returning the case 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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 J. Skaltsounis 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).