Citation Nr: 1807194 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-10 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to March 1980 and from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Montgomery, Alabama; and that office forwarded the appeal to the Board. In May 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the videoconference hearing is of record. Based on the evidence of record, the Board has recharacterized the Veteran's claims of entitlement to service connection for degenerative joint disease of the right knee and entitlement to service connection for degenerative joint disease of the left knee, more broadly as claims of entitlement to service connection for a right knee disability and entitlement to service connection for a left knee disability, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board notes The Board acknowledges that the Veteran has filed a Notice of Disagreement in regards to the issue of entitlement to service connection for degenerative disc disease with arthritis of the lumbar spine. The Board's review of the claims file reveals that the RO is still working on the claim and will not remand at present, where the NOD was received less than two weeks ago. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim remaining on appeal so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Here, the Veteran contends that his right and left knee conditions were caused by this military service. Specifically, the Veteran contends that his bilateral knee conditions were due to the nature of his seven year service as a paratrooper, which involved over 200 parachute jumps from airplanes. Additionally, during the Veteran's May 2017 Board videoconference hearing, the Veteran testified that his right and left knee conditions are either aggravated or caused by his service-connected right and left ankle disabilities. Also, in an April 2011 Statement in Support of Claim, the Veteran stated that his left knee condition was secondary to his left ankle disability. Here, the Board notes that although in an April 2016 addendum medical opinion, the VA examiner opined that the Veteran's current right and left knee conditions are less likely than not the result of or related to any event, injury, or illness in service, to include the Veteran's reported history of multiple parachute jumps, the VA examiner did not comment on whether the Veteran's right or left knee conditions were caused by or aggravated by his service-connected degenerative joint disease of the right ankle and degenerative joint disease of the left ankle. Thus, in light of the Veteran's May 2017 Board hearing testimony, as well as in other statements submitted by the Veteran, the record reflects evidence that could support a theory of entitlement based on secondary service connection. Consequently, VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). Thus, a remand is warranted for an addendum opinion addressing whether the Veteran's right and left knee conditions were proximately caused or proximately aggravated his service-connected degenerative joint disease of the right ankle and degenerative joint disease of the left ankle. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the April 2016 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion. After a review of the evidence, the examiner should address the following: a. Delineate all right knee disabilities, and state whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's right knee disability is (a) proximately caused by or (b) proximately aggravated by the Veteran's service-connected degenerative joint disease of the right ankle and/or degenerative joint disease of the left ankle. b. Delineate all left knee disabilities, and state whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's left knee disability is (a) proximately caused by or (b) proximately aggravated by the Veteran's service-connected degenerative joint disease of the right ankle and/or degenerative joint disease of the left ankle. If the examiner is of the opinion that the Veteran's right knee disability has been aggravated by his service-connected degenerative joint disease of the right ankle and/or degenerative joint disease of the left ankle, the examiner should identify the baseline level of the right knee disability and the degree of disability due to aggravation. If the examiner is of the opinion that the Veteran's left knee disability has been aggravated by his service-connected degenerative joint disease of the right ankle and/or degenerative joint disease of the left ankle, the examiner should identify the baseline level of the left knee disability and the degree of disability due to aggravation. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. 2. After all development has been completed, re-adjudicate the claims. If the benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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. §§ 5109B, 7112 (West 2012). (CONTINUED ON NEXT PAGE) _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).