Citation Nr: 1336218 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-23 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO denied service connection for a left knee and a left hip disability, to include both as secondary to a right knee disability. In June 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is in the Virtual VA electronic file associated with the Veteran's claim. In his notice of disagreement, the Veteran included the issues of service connection for gastroesophageal reflux disease (GERD) and depression, to include as secondary to a service-connected right knee disability. However, in his substantive appeal, the Veteran specifically limited his appeal to the left knee and left hip disabilities. Therefore, only those two issues are currently on appeal. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. 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 Board must remand both service connection claims for a new VA examination. The September 2006 VA examination is not adequate. If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Both causation and aggravation must be discussed for an opinion to be adequate in a claim for secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Here, the examiner opined that the Veteran's claimed left knee and left hip disabilities were more likely than not related to his excess weight, and that it is less likely than not that the left hip and left knee disabilities are "complications" of the service-connected right knee disability. Thus, while the examiner's opinion arguably addressed causation, it did not clearly address the aggravation portion of secondary service connection. See 38 C.F.R. § 3.310. Therefore, a new examination is necessary. While on remand, appropriate efforts must be made to obtain any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and authorize for release any further medical records that are relevant to his claims. Appropriate efforts must be made to obtain any records so identified. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with an examiner of sufficient expertise to discuss the nature and etiology of his left hip and left knee disabilities. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the file and examining the Veteran, the examiner should answer the following questions: a) With respect to the left hip disability: (1) Is there a current disability underlying the Veteran's complaints of left hip pain? (2) If yes, is it at least as likely as not (a fifty percent probability or greater) that the left hip disability was caused by the Veteran's right knee disability? (3) If the right knee disability did not cause the left hip disability, is it at least as likely as not (a fifty percent probability or greater) that the left hip disability was aggravated (permanently worsened beyond its natural progression) by the right knee disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the left hip disability by the service-connected disability. (4) If the Veteran has a left hip disability, but it is not caused or aggravated by the right knee disability, is it at least as likely as not (a fifty percent probability or greater) that the disability was otherwise incurred or aggravated in service? b) With respect to the left knee disability: (1) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left knee disability was caused by his right knee disability? (2) If the right knee disability did not cause the left knee disability, is it at least as likely as not (a fifty percent probability or greater) that the current left knee disability was aggravated (permanently worsened beyond its natural progression) by the right knee disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the left knee disability by the service-connected disability. (3) If the Veteran's left knee disability is not caused or aggravated by the right knee disability, is it at least as likely as not (a fifty percent probability or greater) that the left knee disability was otherwise incurred or aggravated in service? In answering this question, the examiner should consider service treatment records indicating some left knee trauma in service. A detailed rationale supporting the examiner's opinion should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). In forming the opinion, the examiner should consider the Veteran's lay statements. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).