Citation Nr: 1628801	
Decision Date: 07/19/16    Archive Date: 07/28/16

DOCKET NO.  09-12 895	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected left ankle disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel







INTRODUCTION

The Veteran served on active duty from September 1984 to October 1994.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In April 2013 and December 2015, the Board remanded the claims for further evidentiary development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Action ordered in the Board's prior remand has not been completed, the evidence remains inadequate to properly address the matter on appeal, and this matter must be remanded, once again, for completion of the action previously sought, and for further adjudicatory action.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders).

In its December 2015 remand, the Board determined that an August 2013 VA opinion failed to address whether the Veteran's service-connected left ankle disability aggravated his bilateral knee disability.  Accordingly, the Board requested that further VA opinion be obtained.

Further VA opinion was obtained in January 2016 and an addendum opinion was provided in March 2016.  Unfortunately, the Board finds that the March 2016 opinion is inadequate as the VA examiner did not use the correct legal standard in addressing the issue of aggravation of the bilateral knee disability by the service-connected left ankle disability.  

When addressing the issue of aggravation by a service-connected disability, the correct legal standard is "whether it is as least as likely as not."  If aggravated, the examiner was requested to specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation.    In this case, however, the examiner determined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.  Therefore, the March 2016 VA opinion used an incorrect standard of proof and the case must be remanded to obtain a new opinion.

Accordingly, the case is REMANDED for the following action:

1.  Refer the claims file to the March 2016 VA examiner to obtain a clarifying opinion.  

Following a review of the claims file, the VA examiner should opine whether it is as least as likely as not (50 percent probability or greater) that a bilateral knee disability was aggravated by his service-connected left ankle disability.  If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. 

The examiner must provide a rationale for the opinion given.  

2.  Thereafter, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond.  Then, return the case to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or 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).



_________________________________________________
MICHAEL MARTIN
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).