Citation Nr: 1636379 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 10-28 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral knee strain, early mild degenerative joint disease/osteoarthritis of the bilateral knees (slight spurring posterior patella), and bilateral ankle strain, claimed as residuals of bilateral leg fractures. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty for training from January 1988 to May 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2011, the Veteran testified at a travel board hearing before the undersigned acting Veterans Law Judge (VLJ). A copy of the transcript is of record. In June 2012 and in May 2015, the Board remanded this matter for additional development. For the reasons indicated below, the appeal must again be REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for bilateral knee strain, early mild degenerative joint disease/osteoarthritis of the bilateral knees (slight spurring posterior patella), and bilateral ankle strain, claimed as residuals of bilateral leg fractures. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Pursuant to the Board's May 2015 remand, DBQ examinations for knee, lower leg, and ankle conditions were conducted in February 2016. A review of these examinations revealed current diagnoses of bilateral knee strain, early mild degenerative joint disease/osteoarthritis of the bilateral knees (slight spurring posterior patella), and bilateral ankle strain. Although a DBQ medical opinion was also obtained at that time, the Board finds it to be inadequate. Specifically, the DBQ examiner failed to address whether the Veteran's currently diagnosed bilateral knee and ankle strains were related to her military service. Accordingly, a supplemental medical opinion must be obtained which addresses all of the current lower extremity disabilities that were identified by the February 2016 examinations. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from the physician who conducted the February 2016 DBQ examinations addressing the etiology of the Veteran's lower extremity disabilities, claimed as bilateral leg fractures. If this physician is not available, another may be used, and a physical examination should be scheduled if deemed necessary by that physician. All pertinent evidence of record must be made available to and reviewed by the physician. The relevant documents in the claims file must be made available to the examiner for review of the pertinent history of this claimed disability, and the examination report should reflect this review has been accomplished. Based upon a review of the record and clinical findings, it is specifically requested that the DBQ examiner respond to the following questions: A. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed bilateral knee strain originated during or is otherwise etiologically related to her active service. B. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed early mild degenerative joint disease/osteoarthritis of the bilateral knees (slight spurring posterior patella) originated during or is otherwise etiologically related to her active service. C. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed bilateral ankle strain originated during or is otherwise etiologically related to her active service. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the examiner concludes that an opinion cannot be offered without resorting to mere speculation, then he/she should indicate this but, more importantly, explain why an opinion would be speculative, such as by specifying whether there are several possible etiologies with none more prevalent than another, additional information or other procurable data is needed, or whatever the reason. In other words, merely saying he/she cannot comment will not suffice. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and her representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned 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 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). _________________________________________________ KELLI A. KORDICH Acting 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).