Citation Nr: 1619594 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 09-43 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right knee disability, to include as secondary to the service-connected left knee disability. 2. Entitlement to a rating in excess of 20 percent for left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from June 1959 to June 1962, and from January 1968 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a November 2013 decision, the Board denied the claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), in a July 2014 Order, the Court remanded that Board decision for readjudication in accordance with the Joint Motion. In October 2014, the Board remanded the case for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the prior remand, the Board requested that the AOJ obtain any VA treatment records, and schedule the Veteran for a VA examination to ascertain the severity of his service-connected left knee disability and obtain an opinion on whether his right knee disability was caused by musculoskeletal deconditioning due to physical inactivity due to the service-connected left knee disability. Initially, the Board notes that the July 2015 supplemental statement of the case has been returned as undeliverable and reflects a new address for the Veteran. Another new address is reflected in February 2016 correspondence from the AOJ informing him that his appeal was being transferred to the Board. A review of the claims folder and Veterans Appeals Control and Locator System (VACOLS) fails to show that the supplemental statement of the case was ever resent to either new address. Thus, to ensure due process, the AOJ should resend the July 2015 supplemental statement of the case to the Veteran's current mailing address. With respect to the remand requests, the AOJ obtained VA treatment records dated through November 2014 and afforded the Veteran a VA examination in July 2015. While the examination of the service-connected left knee disability is adequate for rating purposes, the opinion on the right knee disability is not adequate to render a final decision. The examiner was asked to state whether the Veteran's right knee disability was caused by musculoskeletal deconditioning due to physical inactivity due to the service-connected left knee disability. However, the examiner merely stated that the Veteran's right knee disability was not incurred in or caused by the claimed in-service injury, noting that his gait does not appear to be so antalgic that it would create abnormal forces on the right knee and X-rays only reveal very mild degenerative joint disease consistent with age. While the Board appreciates the opinion, the examiner should be asked for an addendum that addresses the above, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998). While on remand, the AOJ should obtain any VA treatment records since November 2014. Accordingly, the case is REMANDED for the following actions: (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. Resend the July 2015 supplemental statement of the case to the Veteran's current mailing address. 2. Obtain any VA treatment records since November 2014. 3. Then, contact the examiner who performed the July 2015 VA examination to obtain an addendum on the Veteran's right knee disability. The examiner should be asked to state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was caused by musculoskeletal deconditioning due to physical inactivity due to the service-connected left knee disability. The examiner should discuss the September 2008 VA examiner's opinion that the right knee disorder was due in part to musculoskeletal deconditioning due to physical inactivity. A rationale for all opinions should be provided. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate 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 2014). _________________________________________________ THOMAS H. O'SHAY 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) (2015).