Citation Nr: 1337511 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-13 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for right leg disability (to include right knee and right hip). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1978 to June 1984 and a period of active duty service for training (ACDUTRA) from March 1990 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2010 and a statement of the case (SOC) was issued in May 2011. The Veteran submitted a substantive appeal in May 2011. In April 2012, the Veteran testified at a Travel Board hearing. The appeal is being 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 seeking entitlement to service connection for right leg disability. During the April 2012 Board hearing, the Veteran testified that he is advancing two theories of entitlement. First, that his right leg disability is related to an in-service injury and second, that his right leg disability is secondary or aggravated by his service-connected ankle disabilities. The Veteran was afforded a VA examination in April 2011 for the purpose of evaluating his claimed right leg disability. On examination, degenerative joint disease of the right knee and right hip sprain were diagnosed. The examiner opined that such disabilities are "the result of wear and tear over time since discharge and are less likely as not related to the ankle injuries he sustained during military service." The Board is unable to conclude that this report is adequate for informed appellate review, as the examiner did not address the question of whether the Veteran's right leg disability was aggravated (i.e., permanently increased in severity) beyond the natural progression due to his service-connected ankle disabilities (specifically, left ankle pain post fibula fracture and right ankle degenerative changes), and did not provide an opinion as to whether his right leg disability is causally related to an in-service injury. Therefore, the Board finds that obtaining another VA medical opinion, which is clearly based on full consideration of the Veteran's documented medical history and assertions and which is supported by a clearly stated rationale, is needed in order to more fully address the Veteran's contentions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Given the circumstances of this case, the Board believes such an opinion is necessary to resolve the claim. In addition, the AMC/RO should request and obtain any recent VA treatment records relevant to the appeal. See 38 U.S.C.A. § 5103A; 38 U.S.C.A. § 3.159(c). In view of the secondary service connection theory, the AMC/RO should also take appropriate action to ensure proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) as to that theory. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should furnish the Veteran with the VCAA notice regarding secondary service connection. 2. The AMC/RO should obtain any relevant VA treatment records (not already of record) since April 2012. 3. After completion of the above to the extent possible, the Appellant should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of any current right leg disabilities. The claims file must be made available to the examiner for review in connection with the examination. The examiner should report all current right leg (to include right hip and right knee) disabilities diagnosed on examination. As to each current diagnosed right leg disability (to include right hip and right knee), the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that such current right leg (to include right hip and right knee) disability was manifested during a period of the Veteran's service or is otherwise causally related to such service, to include as due to an injury therein? If so, the examiner should identify the period of service involved. b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right leg (to include right hip and right knee) disability is proximately due to or the result of his service-connected left ankle pain post fibula fracture and/or right ankle degenerative changes? c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right leg (to include right hip and right knee) disability has been aggravated by his service-connected left ankle pain post fibula fracture and/or right ankle degenerative changes? The term "aggravation" is defined as a worsening of the underlying disability versus a temporary flare-up of symptoms. All opinions and conclusions expressed must be supported by a complete rationale in the report. 4. After completion of the above and any further development deemed necessary by the AMC/RO, the issue on appeal should be readjudciated. If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental SOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ALAN S. PEEVY 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) (2013).