Citation Nr: 1715364 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 11-03 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for left knee chondromalacia secondary to the Veteran's service-connected left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2001 to May 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case has since been transferred to the Baltimore, Maryland RO. This matter came before the Board in May 2016, at which time the Board remanded the matter for outstanding VA medical records and a VA medical opinion. As discussed below, the Board finds that another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The issue of a higher rating for the Veteran's service-connected low back disorder has been raised by the record in a January 2011 statement, 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) (2016). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In the May 2016 remand, the Board instructed the RO to associate all outstanding treatments from the Denver and Baltimore VA Healthcare Systems with the claims file. Only records from the Baltimore VA Healthcare System were uploaded and it is unclear what efforts, if any, were made by the RO to obtain outstanding Denver VA treatment records. Although the RO cited the Denver records in the Supplemental Statement of the Case, only the Baltimore records are in the file The Board also instructed the RO to obtain an addendum medical opinion regarding the etiology of the Veteran's left knee disorder, which was issued in August 2016. The examiner opined that the Veteran's knee disorder was not caused by his left foot disorder but did not, however, address the theory of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's outstanding VA treatment records from the VA Denver Healthcare System and associate the requests made and treatment records received with the claims file. 2. Only AFTER obtaining the above records, to the extent available, then forward the Veteran's claims file to the examiner who issued the August 2016 medical opinion, OR to another examiner if that individual is no longer available. The claims file, including a copy of this opinion, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report. An in-person examination is not necessary unless the examiner determines otherwise. The examiner should render an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee condition is aggravated by the Veteran's service-connected left foot disability? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completion of the above, the issue on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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). _________________________________________________ MICHELLE L. KANE 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) (2016).