Citation Nr: 1332284	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  10-11 697	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1.  Entitlement to service connection for a low back disability to include as secondary to service-connected bilateral knee disability.  

2.  Entitlement to service connection for a stress fracture of the left hip.  

3.  Entitlement to a rating higher than 20 percent for residuals of a left knee injury with stress fracture at the medial tibial plateau and intercondylar femur before February 9, 2011, and a rating higher than 20 percent from February 9, 2011.  

4.  Entitlement to a rating higher than 10 percent for residuals of a right knee injury with stress fracture at the medial tibial plateau.

REPRESENTATION

Veteran represented by:	Jan Dils, Attorney

WITNESS AT HEARING ON APPEAL
The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 2003 to December 2003.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

The claims of service connection for a low back disability and for a stress fracture of the left hip and the claims for increase for the left and right knee disabilities are REMANDED to the RO.


REMANDED 

On the claim of service connection for a low back disability, which has been diagnosed as degenerative disc disease of the lumbar spine, on VA examination in October 2008, the VA examiner did not address aggravation and the record is insufficient to decide the claim on a secondary basis and further development under the duty to assist is needed. 

On the claim of service connection for a stress fracture of the left hip, on VA examination in October 2008, the VA examiner did not address whether the Veteran has a left hip disability due to an injury, disease, or event in service. 




As the record is insufficient to decide the applicable theories of service connection further development under the duty to assist is needed.

On the claims for increase for the left and right knee disabilities, after the Veteran was last examined by VA in February 2011, the Veteran testified in July 2012 that she suffers from instability in each knee.  As instability was not found on the previous VA examination, the evidence suggests a material change and a reexamination under 38 C.F.R. § 3.327 is warranted.  

Accordingly, the case is REMANDED for the following actions:

1.  Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine:

a).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current low back disability, degenerative disc disease of the lumbar spine, is aggravated by the service-connected bilateral knee disability?

In this context, the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of degenerative disc disease of the lumbar spine as a result of the service-connected bilateral knee disabilities beyond the natural clinical course of disc disease of the lumbar spine as contrasted to a temporary worsening of symptoms.



b).  If the Veteran has a left hip disability other than pain, and, if so, 

Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that the left hip disability is related to an injury, disease, or event in service? 

c.  The level of impairment in each knee. The VA examiner is asked to describe: 

Flexion and extension in degrees and any additional limitation of flexion or extension, considering functional loss due to pain, weakness, fatigability, painful motion, including during flare- ups or with repetitive use, if feasible, in terms of degrees of additional limitation of flexion or extension; 

Any ligament instability; 

Any other symptoms, such as locking or effusion, not encompassed by limitation of flexion or extension or functional loss due to pain or instability. 

The Veteran's file must be made available to the VA examiner.  





2.  After the above development, adjudicate the claims.  If any benefit sought is denied, furnish the Veteran and her attorney a supplemental statement of the case and return the case to the Board.     

The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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).




______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs