Citation Nr: 1514783 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 07-35 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right knee disability, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to October 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the RO in San Diego, California that in pertinent part, denied service connection for a right knee disability. A video conference hearing was held before the undersigned Veterans Law Judge in October 2010 and the transcript has been associated with the claims file. The Board denied the claim in a May 2014 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims, and by a January 2015 Order, the Court vacated the decision and remanded it for adjudication pursuant to the Joint Motion for Remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disability, including as secondary to a service-connected disability. The Veteran was afforded a VA examination in April 2011. The examiner opined that based "on the fact that mild knee arthritis is a common finding in individuals of this age group, and that the Veteran's right knee complaints are relatively recent in spite of the fact that he has had left knee problems for 40 years, it is less likely as not that the current right knee condition was caused by or aggravated by his service connected left knee disability, left ankle disability, or left hip disability." As noted in the Joint Motion for Remand, such an explanation does not provide an adequate rationale with respect to the aggravation aspect of the claim. The VA examiner's provided rationale relates to time of onset and prevalence of the condition among those in a certain age group. These factors appear to relate to causation, but it is not clear how these factors relate to the question of whether the right knee condition has been aggravated by a service-connected condition. Thus, a new medical opinion addressing aggravation should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the Veteran's VA examination in April 2011, or to a qualified medical professional if the examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address whether the Veteran's right knee condition was proximately due to or has been aggravated by the Veteran's service-connected disabilities. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the baseline of the severity of the Veteran's conditions before the onset of the aggravation. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should state and explain why an opinion cannot be provided without resort to speculation 2. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an appropriate period of time within which to respond. 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 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 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).