Citation Nr: 1736687	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-40 416	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a right knee disability, to include as secondary to service-connected residuals of simple fracture of the right tibia and fibula and service-connected residuals of left total knee replacement.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Seay, Counsel


INTRODUCTION

The Veteran served on active duty from February 1961 to January 1965. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  The RO in St. Paul, Minnesota, now has jurisdiction over this case. 

The Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2011.  A copy of the transcript of this hearing has been associated with the claims folder. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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


REMAND

In a July 2017 informal hearing presentation, the Veteran's representative requested remand of the issue on appeal for additional development and compliance with the Board's June 2016 remand.  Specifically, the representative contended that VA must consider all theories of service connection, to include whether the Veteran's right knee disability is proximately due to or aggravated by the service-connected left total knee replacement.  While the AOJ considered whether the claimed right knee disability is secondary to the service-connected simple fracture of the right tibia and fibula, in supplemental statements of the case (SSOC), (most recently in a November 2016 SSOC), the AOJ has not yet adjudicated the issue as to whether the claimed right knee disability is secondary to the service-connected left total knee replacement.  Therefore, the Board cannot adjudicate the matter in the first instance.  Thus, the issue must be remanded for adjudication by the AOJ.  

In addition, a VA medical opinion was most recently provided in August 2016.  The VA examiner opined that the right knee disability was "less likely than not" incurred in or caused by the claimed in-service injury, event or illness.  The examiner stated that the degenerative arthritis in the right knee existed without abnormal progression due to remote ankle injury and/or ORIF repair.  The examiner stated that there was no evidence of abnormal progression of the right knee condition that was caused by or permanently aggravated by service or service connected conditions.  However, the examiner did not provide sufficient rationale for the expressed opinion, did not comment on gait abnormalities demonstrated by the record, and did not specifically address whether the right knee disability was proximately due to or aggravated by the service-connected left total knee replacement.  Given the recently raised theory concerning the service-connected left total knee replacement, the Board finds that a new VA examination and opinion is required.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA medical examination concerning the nature and etiology of the claimed right knee disability.  The claims folder must be made available for review and noted as such in the examination report.  After a review of the claims folder, the examiner is asked to address the following: 

* Is it at least as likely as not (50 percent probability or higher) that any right knee disability had its onset in active service or is otherwise etiologically related to active service?

*Is it at least as likely as not (50 percent probability or higher) that any right knee disability is proximately due to or aggravated by the Veteran's service-connected residuals of simple fracture of the right tibia and fibula?

* Is it at least as likely as not (50 percent probability or higher) that any right knee disability is proximately due to or aggravated by the Veteran's service-connected left total knee replacement?

Aggravation is defined as a permanent worsening beyond the natural progression of the disease.

Rationale must be provided for all opinions reached.  The examiner should discuss the gait abnormalities shown by the medical evidence of record, including records dated in September and October 2007 indicating gait abnormality, and the Veteran's statements regarding a fellow soldier sitting on his right knee during active service and his testimony and statements that he began to experience right knee pain in 1965 and shortly after service.  

2.  Thereafter, readjudicate the issue on appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative.  After allowing an appropriate amount of time for response, return the case to the Board for review.

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).




_________________________________________________
U. R. POWELL
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).





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