Citation Nr: 1336201 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-38 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected left ankle disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left ankle disability. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his cousin ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2008, the Veteran testified before the undersigned Veterans Law Judge at the Board in Washington, D.C. A copy of the transcript of that hearing has been associated with the claims folder and has been reviewed. The Veteran's claims were remanded by the Board in July 2009, November 2011, and August 2013. The requested development having been completed, the matter again is before the Board. This appeal was processed using the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. As noted in the August 2013 Board remand, the issue of entitlement to service connection for a right eye cataract has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and again it is referred to the AOJ for appropriate action. 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 contends that he has current bilateral knee and right ankle disabilities due to his military service or, in the alternative, due to his service-connected left ankle disability. Despite the extensive procedural development, the Board concludes that another remand is required for additional development. Specifically, the Board finds the September 2013 VA supplemental medical opinion inadequate for adjudication purposes. Therein, the opinion provider concluded that it was less likely as not that the Veteran's bilateral knee disabilities or right ankle disability had their onset as a result of the Veteran's military service. The rationale was that there were no documentations of knee problems in service and only one instance of a diagnosed acute right ankle sprain. X-rays showed no evidence of problems and, in the absence of documented chronicity of problems from service, the opinion provider could not opine that the conditions began in service or due to continuous problems from service, as there were no documented problems until well into the 2000s. The opinion provider also concluded that it was less likely as not that the Veteran's bilateral knee patellofemoral syndrome and right ankle sprain was aggravated by his service-connected left ankle disability. The rationale was that there was no evidence of aggravation, evidence of problems on current x-rays, evidence of an antalgic gait up to 2005. In conclusion, without an antalgic gait due to the left ankle there was no medical basis to establish a connection between the left ankle disability and the current claimed disabilities. In the absence of any contention of a continuity of symptomatology by the Veteran, the Board finds the above opinion adequate with respect to establishing entitlement to service connection on a direct basis. With respect to the opinion provider's rationale for the conclusions regarding any secondary connection between the service-connected left ankle disability and the current claims, a primary basis appears to have been that the Veteran did not have an antalgic gait prior to 2005. Although such a statement could be a rationale for relating the current knee and right ankle disabilities directly to service, such an opinion is not adequate for addressing the question of whether the left ankle disability caused or aggravated the knee and right ankle disabilities, as it does not address possible causation or aggravation of the knee and right ankle disabilities after 2005. In that regard, the Board notes that the Veteran was noted to have a gait favoring his left lower extremity (i.e. the side of his service-connected left ankle disability) during the appellate time period, to include at the time of the February 2012 VA examination, and that he regularly uses a cane. That said, it is not definitive from the record whether the gait problems are the result of his service-connected left ankle disability or due to some other reason. In light of the foregoing, the Board concludes that a new VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the Veteran should be informed of how to establish his claims of entitlement to service connection as secondary to his service-connected left ankle disability pursuant to 38 C.F.R. § 3.310. 2. After the above is complete, schedule the Veteran for a VA medical examination for his bilateral knees and right ankle. The claims file must be provided to the examiner for review and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any present right knee, left knee, or right ankle disability was caused or aggravated by any of the Veteran's service-connected disabilities, specifically to include his service-connected left ankle disability? In that regard, the examiner is requested to consider, and discuss as necessary, the evidence of a gait favoring his left lower extremity and the use of a cane, to include during the February 2012 VA examination. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After the development requested above has been completed, to the extent possible, the RO/AMC should re-adjudicate the Veteran's claims. If the full benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond. 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). _________________________________________________ MICHAEL A. PAPPAS 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).