Citation Nr: 1341450 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-12 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right knee disability as secondary to service-connected right ankle degenerative joint disease (DJD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to October 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2011, the Veteran testified at a videoconference hearing before the undersigned; a transcript of the hearing is of record. In a February 2012 decision, the Board denied service connection for a right knee disability as secondary to service-connected right ankle DJD. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 Memorandum Decision, the Court vacated the Board's decision and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND In its June 2013 Memorandum Decision, the Court determined that VA erred by failing to obtain a medical opinion concerning whether the Veteran's right knee disability was aggravated by his service-connected ankle disability. See 38 C.F.R. § 3.310(b) (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records from the Columbia Medical Center (VAMC) and Spartanburg Community Based Outpatient Clinic (CBOC) dated since May 2012. 2. After the development requested in item (1) is completed, schedule the Veteran for an examination to determine the nature and etiology of his right knee disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic file) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. After examining the Veteran, reviewing his pertinent medical history and any competent lay statements regarding observable symptomatology, the examiner should identify all current right knee disabilities. With respect to each right knee disability diagnosed, the examiner should offer an opinion as whether the right knee disability is at least as likely as not (50 percent probability or greater) proximately due to or aggravated by the Veteran's service-connected right ankle DJD. A response to both aspects of the secondary service connection claim must be provided. In rendering this opinion, please consider and discuss the November 2007 VA examination report, which noted that the Veteran's gait appeared off and he walked with a slight limp; the June 2009 opinion by a VA physician (Dr. J.S.S.); and the April 2011 opinion by a private physician (Dr. R.D.). If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. Note: The term "aggravated" in the above context refers to a permanent worsening, beyond the natural progress, of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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 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. 2013). _________________________________________________ Alexandra P. Simpson 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) (2013).