Citation Nr: 1800413 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-06 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bony infarctions of the right distal femur, to include as secondary to service-connected back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2011. A transcript of the hearing is of record. In a February 2014 decision, the Board, in pertinent part, granted service connection for a back disability and remanded the instant claims for further development. In a subsequent February 2014 rating decision, the RO implemented the Board decision by granting service connection for low back disability, assigning a 10 percent rating effective November 2009. The RO also granted service connection for associated radiculopathy of the left lower extremity. Then, in an August 2015 rating decision, the RO increased the rating for the low back disability to 20 percent effective February 4, 2015, and also granted service connection for associated radiculopathy of the right lower extremity. In December 2015, the case was again remanded for further development. In March 2017, the Board issued a decision denying entitlement to service connection for a right knee disability, to include as secondary to service-connected low back disability, and entitlement to service connection for a right leg disability, to include as secondary to service-connected low back disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Board notes this case was subject to an August 31, 2017, Joint Motion for Partial Remand (JMPR) of the Board's March 2017 denial. The Board also notes in the August 2017 Court JMPR that the Court re-characterized the issues the Board adjudicated into one issue. Specifically, the Board previously had two separate issues of entitlement to service connection for a right knee disability, to include as secondary to service-connected low back disability, and entitlement to service connection for a right leg disability, to include as secondary to service-connected low back disability. The JMPR reasoned that it was incorrect to refer to bony infarctions of the right distal femur as either a "knee disability" or a "leg disability" as the distal femur along with the patella and tibia are what forms the knee joint, according to Dorland's Illustrated Medical Dictionary, 696 (31st. ed., 2007). In any event, the former two issues have been re-characterized as one issue, as seen on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its August 31, 2017 Order, the Court incorporated a JMPR of the parties which specified that the Board failed to adequately develop and adjudicate the claim. Specifically, the Board relied on a July 2014 VA examination which did not provide an etiology of the disability and instead limited its opinion to state that the bony infarctions of the right distal femur were not aggravated by the Veteran's service-connected low back disability. In addition, the Board also relied on a June 2016 VA opinion which did not address the fact that bony infarctions of the right distal femur were a separate disability, apart from osteoarthritis, which may be related to the Veteran's in-service chondromalacia. Therefore, in light of the Court's action, the claim must be remanded for a medical opinion that discusses the etiology of the Veteran's bony infarctions of the right distal femur. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2)(2016); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran an opportunity to identify or submit any evidence, to include VA clinical records, private clinical records, or non-clinical records that he believes might be relevant to substantiate his claim. The Veteran is encouraged to submit any new evidence himself to expedite this case. 2. The Veteran's claims file and clinical records should be made available to an appropriate reviewer. If the reviewer determines that additional medical history, diagnostic studies or tests, or in-person examination is/are necessary, the Veteran should be afforded VA examination. The reviewer/examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater likelihood) that the Veteran's current bony infarctions of the right distal femur (if any is found) is etiologically related to his in-service chondromalacia. The reviewer/examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater likelihood) that the Veteran's infarctions of the right distal femur was caused (emphasis added) or aggravated by his service-connected low back disability. All examination findings, along with a complete rationale for all opinions expressed, should be set forth in the examination report. If the examiner must resort to mere speculation to answer any question, he or she should so explain why a response would be speculative. The examiner should also identify what additional information, such as additional testing, would be necessary to form an opinion. 3. This is a complex case back from the Veteran's Court. After completing all indicated development, the RO should readjudicate the claim remaining on appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and be afforded a reasonable opportunity for response. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).