Citation Nr: 1332679 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-00 295 ) 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 right knee disorder, to include as secondary to a service-connected low back disability. 2. Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Winston-Salem, North Carolina. In July 2011, the Board remanded the appeal to the Appeals Management Center (AMC) for development. 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 a right knee disorder, secondary to a service-connected low back disability. VA should issue a VCAA notice letter regarding the requirements for substantiation of a claim for service connection for a disorder, secondary to an already service-connected disability. In June 2011, the Board remanded the issues before it to the AMC for further development. In the remand, the Board noted that the Veteran alleged that his low back disability prevented him from exercising, which led him to become obese, and in turn caused him to develop arthritis in his right knee. The Board indicated that the Veteran had submitted various articles addressing the relationship between obesity and arthritis. The Board requested that a new VA examination be provided to determine whether the Veteran's diagnosed right knee arthritis was caused or aggravated by his low back disability. In a September 2011 VA medical examination report, procured as a result of that remand, a VA examiner found that the Veteran's right knee disorder was less likely than not proximately due to or the result of the Veteran's service-connected low back disability. In explaining this opinion, the VA examiner wrote that there was "no medical evidence to correlate obesity with [the Veteran's] osteoarthritis of the right knee." In stating that there was no medical evidence indicating such a relationship, the VA examiner did not address the articles submitted by the Veteran. Therefore, a VA medical opinion, written by the same examiner who wrote the September 2011 VA medical examination report, regarding the nature and etiology of the Veteran's right knee disorder should be procured for the record. If the September 2011 VA examiner is unavailable to write the opinion, a VA medical examination by an appropriate VA examiner should be provided. In the ensuing VA medical opinion or VA medical examination report, the VA examiner should be asked to address the articles submitted by the Veteran in support of his claim, indicating why they agree or disagree with the findings in that evidence. The Veteran's claim for a TDIU is inextricably intertwined with his claim for service connection for a right knee disorder. Therefore, a determination as to whether the Veteran is entitled to service connection for his right knee disorder must be made prior to reaching a decision on his claim for a TDIU. Accordingly, the case is REMANDED for the following action: 1. Review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements. At a minimum, send a notice letter regarding the requirements for substantiating a claim for service connection for a claimed disorder, secondary to an already service-connected disability. 2. Request the VA examiner who wrote the September 2011 VA medical examination report to provide an additional VA medical opinion regarding the nature and etiology of the Veteran's claimed right knee disorder. If the September 2011 VA medical examiner is unavailable to write the opinion, a VA medical examination by an appropriate VA examiner should be provided. The VA examiner must review the claims file and, if necessary, interview the Veteran and provide a full examination. Having done so, the VA examiner should provide an opinion concerning whether it is at least as likely as not (at least 50 percent likely) that any diagnosed right knee disorder was caused or aggravated by the Veteran's degenerative joint disease of the lumbar spine. The examiner should set forth a complete rationale for his or her conclusion in the report of examination. In doing so, the examiner should specifically address the Veteran's contention that the physical limitations caused by his low back disability caused him to become obese and that this in turn caused him to develop osteoarthritis of the right knee. The examiner should specifically note the articles submitted by the Veteran, suggesting a relationship between osteoarthritis and obesity, and indicate any particular reasons for agreeing or disagreeing with their findings or their value in determining the etiology of the Veteran's claimed right knee disorder. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. 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).