Citation Nr: 1537736 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 14-24 425A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a left knee disorder, to include as secondary to a right knee disorder and service-connected right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to September 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Winston-Salem, North Carolina Regional Office (RO). With respect to the Veteran's claim for service connection for right and left knee conditions, the Board notes that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, while the RO identified the issues on appeal as entitlement to service connection for arthritis of the knees, the claims have been recharacterized to include any current disorder of the knees. In April 2015 the Veteran testified during a central office hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The issue of entitlement to service connection for total disability for individual unemployability (TDIU) has been raised by the record in the July 2014 VA-Form 9 Substantive Appeal, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014 & Supp. 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets any additional delay, a remand is necessary so that VA can fulfill the duty to assist the Veteran in obtaining evidence to substantiate the claims on appeal. 38 U.S.C.A. 5103A (West 2014 & Supp. 2015), 38 C.F.R. 3.159(c) (2015). The Veteran has asserted that the May 1978 in-service fall for which he is currently service-connected for a right ankle disorder also resulted in injuries to his right and left knees. Additionally, the Veteran asserts that his right and left knee conditions are secondary to his service-connected right ankle disorder, and/or that his left knee disorder is secondary to his right knee disorder. The Board notes that the Veteran has not been afforded a VA knee/joints examination in this case nor was a medical opinion obtained. VA has a duty to assist the Veteran in the development of a claim. That duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015). Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In the present case, the Veteran has a diagnosis of arthritis in both knees, and he is service-connected for a right ankle disability as a result of a fall in service, the same fall that he contends is also a direct cause of his knee disabilities. Additionally, there is medical evidence that suggests a possible link between the Veteran's right ankle instability and his bilateral knee pain. Thus, the first three McLendon elements are satisfied. Absent a medical opinion on these issues, the record is insufficient for the Board to render a decision on the Veteran's claims. Accordingly, remand is necessary in this case to provide the Veteran with a medical opinion to address the theories of direct and secondary causation. See McLendon, 20 Vet. App. at 81. This opportunity should also be taken to send the Veteran a notice letter informing him of the requirements for establishing service connection for a right and left knee condition on a secondary basis. See 38 U.S.C.A. § 5103(a) (West 2015); 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a notice letter informing him of the requirements for establishing service connection for a right and left knee condition on a secondary basis. 2. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent VA and/or private treatment records and associate them with the virtual claims file. 3. Thereafter, the RO should schedule the Veteran for a VA joints examination to determine the nature and etiology of any current right and left knee disability. The examiner must review the Veteran's Virtual VA and VBMS claims file and note that review in the examination report. All indicated studies and tests should be performed. The examiner should be requested to render an opinion regarding the following: a) Identify any right and left knee disabilities, to include arthritis. b) Opine whether it is at least as likely as not (50 percent probability or more) that any diagnosed right and left knee disability had its onset in or is etiologically related to the 1978 in-service fall. c) Opine whether it is at least as likely as not (50 percent probability or more) that any left disability was caused or aggravated by any right knee disability d) Opine whether it is at least as likely as not (50 percent probability or more) that any diagnosed right and left knee disability is caused by the Veteran's service-connected right ankle disability. e) Opine whether it is at least as likely as not (50 percent probability or more) that any diagnosed right and left knee disability is aggravated by the Veteran's service-connected right ankle disability. Aggravation means a permanent worsening of the disorder beyond the natural progress of the disorder. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 38 C.F.R. § 3.310 (2015). The examiner should provide a rationale for all opinions expressed. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. The appellant 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 2015). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).