Citation Nr: 0530230	
Decision Date: 11/10/05    Archive Date: 11/30/05

DOCKET NO.  97-05 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for a left knee 
disability.  

2.  Entitlement to service connection for a right wrist 
disability.  

3.  Entitlement to a compensable initial rating for a low 
back disability.  

4.  Entitlement to a compensable initial rating for hearing 
loss of the left ear.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The veteran served on active duty from September 1983 to 
November 1995.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 1996 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia, which denied the veteran's claim seeking 
entitlement to service connection for disabilities of the 
right wrist and left knee.  He was awarded service 
connection, with noncompensable initial ratings, for a low 
back disability and for hearing loss of the left ear.  The 
veteran responded by filing a timely Notice of Disagreement 
regarding these determinations, and was sent a Statement of 
the Case by the RO.  He then filed a timely VA Form 9, 
perfecting his appeal of this issue.  

In June 2002, the veteran testified before a Veterans Law 
Judge who is no longer a member of the Board.  In September 
2005, the veteran was offered a new hearing before an active 
Veterans Law Judge but to date, no such hearing has been 
requested by the veteran.  Therefore, a remand on this basis 
is not required at this time.  

The veteran's appeal was initially presented to the Board in 
August 2003, at which time it was remanded for additional 
development.  It has now been returned to the Board for 
appellate review.  

The issues of entitlement to service connection for a left 
knee disability and to a compensable initial rating for a low 
back disability are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The VA has fulfilled its notice and duty to assist to the 
appellant by obtaining and fully developing all relevant 
evidence necessary for the equitable disposition of the 
issues addressed in this decision.

2.  Competent evidence has not been presented of a current 
disability of the right wrist for which service connection 
may be granted.  

3.  The veteran's hearing acuity is, at worst, Level I in the 
left ear.  


CONCLUSIONS OF LAW

1.  A right wrist disability was not incurred in or 
aggravated by active service.  38 U.S.C.A. §§ 1110, 1112, 
1113, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 
3.304 (2005).  

2.  The criteria for a compensable initial rating for hearing 
loss of the left ear are not met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 
3.321, 4.3, 4.7, 4.85, 4.87, Diagnostic Code 6100 (2005).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  
 
In this case, for the reasons set forth below, the VA has 
complied with the VCAA, as well as the implementing 
regulations, in reference to the issues addressed on appeal.
 
First, VA has a duty to notify the claimant and the 
representative, if any, of any information and evidence 
needed to substantiate and complete a claim.  38 U.S.C.A. § 
5103A (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  The veteran has been 
informed of the evidence needed to show his entitlement to 
service connection and increased ratings via VA letters 
issued in December 2002 and May 2004; and the rating 
decision, statement of the case (SOC), supplemental statement 
of the case (SSOC), and the Board's August 2003 remand order 
issued since 1996 to the present.  In addition, these 
documents provided the veteran with specific information 
relevant to the VCAA.  Thus, no further notices are required.  
See Quartuccio, supra.  

Secondly, VA has a duty to assist the claimant in obtaining 
evidence necessary to substantiate the case.  38 U.S.C.A. 
§ 5103A (West 2002); 38 C.F.R. § 3.159(c).  In this case, all 
identified and available evidence has been obtained, 
including all relevant treatment records and examination 
reports.  In this respect, the Board notes that all private 
medical treatment records made known to VA have been 
obtained.  The veteran was also notified of the above 
development via the RO's letters and other mailings to the 
veteran.  No response or additional records have been 
received to the present.  The RO has also obtained the 
veteran's medical treatment records and examination reports 
from the Atlanta VA medical center, where he has received 
treatment.  Thus, the Board finds that no additional 
evidence, which may aid the veteran's claims or might be 
pertinent to the bases of the claims addressed in this 
decision, has been identified or remains outstanding, and the 
duty to assist requirement has been satisfied.  See 
Quartuccio, supra.    
 
Furthermore, the Board finds that the claimant has been 
provided with every opportunity to submit evidence and 
argument in support of his claims and to respond to VA 
notices.  Although the VA notices that were provided to the 
appellant do not contain the "fourth element" per se, the 
Board finds that the appellant was otherwise fully notified 
of the need to give to VA any evidence pertaining to his 
claims.  By the informational letters, the rating decision, 
the SOC and the SSOC, VA satisfied the fourth element of the 
notice requirements.  Therefore, to decide the appeal 
regarding the veteran's claims discussed herein would not be 
prejudicial error to the claimant.  See VAOPGCPREC 7-2004.
 
The Board acknowledges that, in Pelegrini v. Principi, 18 
Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans 
Claims (Court) held, in part, that a VCAA notice, as required 
by 38 U.S.C.A. § 5103(a), must be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim for VA benefits.  In 
the present case, the unfavorable AOJ decision that is the 
basis of this appeal was already decided (in April 1996) and 
appealed prior to VCAA enactment.  The Court acknowledged in 
Pelegrini that where, as here, the § 5103(a) notice was not 
mandated at the time of the initial AOJ decision, the AOJ did 
not err in not providing such notice.  Rather, the appellant 
has the right to content complying notice and proper 
subsequent VA process.  Pelegrini, 18 Vet. App. at 120.  
 
Here, the Board finds that any defect with respect to the 
timing of the VCAA notice requirement was harmless error.  
Although the notice was provided to the appellant after the 
initial April 1996 adjudication, the appellant has not been 
prejudiced thereby.  The content of the notices provided to 
the appellant fully complied with the requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's 
duty to notify.  Not only has the appellant been provided 
with every opportunity to submit evidence and argument in 
support of his claims and to respond to VA notices, but the 
actions taken by VA have essentially cured the error in the 
timing of notice.  Further, the Board finds that the purpose 
behind the notice requirement has been satisfied because the 
appellant has been afforded a meaningful opportunity to 
participate effectively in the processing of his claims.  For 
these reasons, it is not prejudicial to the appellant for the 
Board to proceed to finally decide this appeal.  See Bernard 
v. Brown, 4 Vet. App. 384, 392-94 (1993); see also Conway v. 
Principi, 353 F.3d 1369 (Fed. Cir. 2004) (holding that the 
Court must take due account of the 38 U.S.C.A. § 7261(b) rule 
of prejudicial error when considering VA compliance with the 
VCAA) and Mayfield v. Nicholson, 19 Vet. App.  103 (2005).  

II. Service connection - Right wrist disability

The veteran seeks service connection for a disability of the 
right wrist.  Service connection may be awarded for a current 
disability arising from a disease or injury incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110, 
1131 (West 2002); 38 C.F.R. § 3.303, 3.304 (2005).  Service 
connection may also be awarded for certain disabilities, such 
as arthritis, which manifest to a compensable degree within a 
statutorily-prescribed period of time.  38 U.S.C.A. §§ 1112, 
1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005).  As 
with any claim, when there is an approximate balance of 
positive and negative evidence regarding any matter material 
to the claim, the claimant shall be given the benefit of the 
doubt.  38 U.S.C.A. § 5107 (West 2002).  

The veteran underwent VA orthopedic examination in April 
2003, at which time he gave a history of a right wrist injury 
sustained during military service.  He continued to 
experience intermittent episodes of pain of the right wrist.  
On physical examination the veteran's right wrist was without 
swelling, tenderness, or limitation of motion.  No other 
abnormalities of the right wrist were observed.  X-rays of 
the right wrist were within normal limits, as was an April 
2003 bone scan of the wrist.  The examiner stated he was not 
"able to identify [an] objective disease" of the right 
wrist.  

After considering the totality of the record, the Board finds 
the preponderance of the evidence to be against the award of 
service connection for a right wrist disability, as such a 
current disability has not been demonstrated.  "Congress 
specifically limits entitlement for service-connected disease 
or injury to cases where such incidents have resulted in a 
disability.  In the absence of proof of a present disability 
there can be no valid claim." Brammer v. Brown, 3 Vet. 
App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. 
App. 141, 143-44 (1992).  In this case, service connection 
may only be establish for an actual disability of the right 
wrist, which is not currently shown by the evidence.  Right 
wrist symptomatology, in and of itself, is not sufficient to 
establish service connection.  Although the veteran has 
subjective complaints of right wrist pain, there is no 
objective medical evidence in the record that shows his right 
wrist has a diagnosable disorder.  He has been afforded VA 
orthopedic examination, complete with X-ray and bone scan 
studies, which did not yield a current diagnosis.  Pain 
alone, without a diagnosed or identifiable underlying malady 
or condition, does not in and of itself constitute a 
disability for which service connection may be granted.  
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal 
dismissed in part, and vacated and remanded in part sub nom, 
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

The Board also acknowledges the veteran's argument that he 
currently suffers from a right wrist disorder.  However, the 
law is clear that "where the determinative issue involves 
medical causation or a medical diagnosis, competent medical 
evidence is required."  Grottveit v. Brown, 5 Vet. App. 91, 
93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 
494 (1992) (holding that a witness must be competent in order 
for his statements or testimony to be probative as to the 
facts under consideration). 

In conclusion, the preponderance of the evidence is against 
the award of service connection for a right wrist disability, 
as a current disability of the right wrist has not been 
demonstrated.  As a preponderance of the evidence is against 
the award of service connection, the benefit of the doubt 
doctrine is not applicable in the instant appeal.  See 
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. 
App. 49, 55-57 (1991).

III. Compensable initial rating - Hearing loss of the left 
ear

The veteran seeks a compensable initial rating for his 
hearing loss of the left ear.  Disability evaluations are 
based upon the average impairment of earning capacity as 
contemplated by the VA Schedule for Rating Disabilities 
(Rating Schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
Part 4 (2005).  In order to evaluate the level of disability 
and any changes in condition, it is necessary to consider the 
complete medical history of the veteran's condition.  
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (West 2002).  
However, when the assignment of initial ratings is under 
consideration, the level of disability in all periods since 
the effective date of the grant of service connection must be 
taken into account.  Fenderson v. West, 12 Vet. App. 119 
(1998).  In cases in which a reasonable doubt arises as to 
the appropriate degree of disability to be assigned, such 
doubt shall be resolved in favor of the veteran.  38 C.F.R. 
§ 4.3 (2005).  Where there is a question as to which of two 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria required for that rating.  38 C.F.R. § 4.7 
(2005).  

The veteran's hearing loss of the left ear is currently rated 
as noncompensable under the criteria for hearing loss.  The 
criteria for evaluating hearing impairment call for the 
consideration of the results of examinations using controlled 
speech discrimination tests (Maryland CNC) together with the 
results of puretone audiometry tests.  38 C.F.R. § 4.85 
(2005).  These results are then charted on Table VI and Table 
VII, as set out in the Rating Schedule.  In order to 
establish entitlement to an increased evaluation for hearing 
loss, it must be shown that certain minimum levels of the 
combination of the percentage of speech discrimination loss 
and average puretone decibel loss are met.  38 C.F.R. § 4.85 
(2005).  

Evaluations of defective hearing range from noncompensable to 
100 percent based on the organic impairment of hearing acuity 
as measured by the results of controlled speech 
discrimination tests together with the average hearing 
threshold level as measured by puretone audiometry tests in 
the frequencies of 1000, 2000, 3000, and 4000 cycles per 
second.  To evaluate the degree of disability from bilateral 
service-connected defective hearing, the provisions of 
38 C.F.R. § 4.85 establish eleven auditory acuity levels from 
Level I for essentially normal acuity to Level XI for 
profound deafness.  Tables VI and VII as set forth in 
38 C.F.R. § 4.85 are used to calculate the rating to be 
assigned.  "[T]he assignment of disability ratings for 
hearing impairment are derived by a mechanical application of 
the Rating Schedule to the numeric designations assigned 
after audiometric evaluations are rendered."  Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).  Because the veteran 
has been granted service connection for hearing loss of the 
left ear only, his right ear will be assigned a numerical 
level of I for hearing impairment in that ear.  38 C.F.R. 
§ 4.85(f) (2005).  Significantly, in situations where service 
connection has been granted only for hearing loss involving 
one ear, and the veteran does not have total deafness in both 
ears, the hearing acuity of the nonservice-connected ear is 
considered to be normal.  38 U.S.C.A. § 1160(a)(3); 38 C.F.R. 
§§ 3.383(a)(3), 4.14, 4.85(f).  In such situations, a maximum 
10 percent evaluation is assignable for hearing loss when the 
service-connected ear is at Levels X or XI.  38 C.F.R. § 
4.85, Diagnostic Code 6100.

In the present case, the veteran was most recently examined 
by VA in April 2003.  Puretone thresholds, in decibels, were 
as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

10
10
30
40
LEFT

15
15
40
50

The puretone threshold average was 22.5 decibels in the right 
ear and 30 in the left ear.  Speech audiometry revealed 
speech recognition ability of 100 percent in the right ear 
and of 100 in the left ear.  

He was previously examined in January 1996, at which time 
puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
20
35
LEFT
10
20
10
20
40

The puretone threshold average was 18 decibels in the right 
ear and 22 in the left ear.  Speech audiometry revealed 
speech recognition ability of 100 percent in the right ear 
and of 100 in the left ear.  

Evaluation of the April 2003 examination results under the 
diagnostic criteria results in hearing acuity at Level I 
(Table VI) in the left ear, and as noted above, his right ear 
will be evaluated at Level I (Table VI) also.  These levels 
of hearing acuity result in a noncompensable disability 
rating under Table VII, which has already been assigned the 
veteran.  Likewise, his January 1996 examination results 
reflect Level I hearing acuity in the right ear and Level I 
hearing acuity in the left ear, warranting a noncompensable 
rating.  Therefore, a compensable initial rating is not 
warranted for the veteran's hearing loss of the left ear.  
Moreover, because at no time during the pendency of this 
appeal has the veteran displayed hearing loss to a 
compensable degree, a staged rating is not warranted in the 
present case.  See Fenderson, supra.  

Consideration has also been given to the potential 
application of the various provisions of 38 C.F.R. Parts 3 
and 4, whether or not they were raised by the veteran.  The 
evidence discussed herein does not show that the service-
connected disability at issue presents such an unusual or 
exceptional disability picture as to render impractical the 
application of the regular schedular standards.  In 
particular, the veteran's hearing loss has itself required no 
extended periods of hospitalization since the initiation of 
this appeal, and is not shown by the evidence to present 
marked interference with employment in and of itself.  
Therefore, the assignment of an extraschedular evaluation 
under 38 C.F.R. § 3.321(b) is not warranted.  The veteran has 
not otherwise submitted evidence tending to show that his 
service-connected disability is unusual, or causes marked 
interference with work other than as contemplated within the 
schedular provisions discussed herein.  

After a complete review of the record, the Board finds that 
the preponderance of the evidence is against a compensable 
initial rating for his service-connected hearing loss of the 
left ear.  As a preponderance of the evidence is against the 
award of an increased rating, the benefit of the doubt 
doctrine is not applicable in the instant appeal.  See 
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. 
App. 49, 55-57 (1991).  


ORDER

Service connection for a right wrist disability is denied.  

A compensable initial rating for the veteran's hearing loss 
of the left ear is denied.  


REMAND

The veteran seeks service connection for a left knee 
disability.  Service medical records indicate he was treated 
for left knee pain during service; however, an April 2003 VA 
orthopedic examination found no evidence of a current 
disability.  Subsequent to that examination, the veteran 
submitted a May 2005 medical opinion statement from J.N.L., 
D.C., who stated the veteran had an unspecified 
"neuromusculoskeletal condition" involving his knee, and 
this disability was the result of injuries sustained during 
military service.  Because this opinion raises the 
possibility that the veteran has a current left knee 
disability which began during military service, a new VA 
medical examination must be afforded him.  The VA has an 
obligation to obtain such an examination when it becomes 
necessary to substantiate the claim.  38 U.S.C.A. § 5103A (d) 
(West 2002 & Supp. 2005).  

The private May 2005 medical opinion also indicates the 
veteran has been treated by Dr. L. since November 2001 at the 
Lawson Chiropractic Clinic.  However, the clinical records of 
this treatment have not been obtained by VA.  VA is obligated 
to inform the veteran of any medical or lay evidence not 
already of record which is necessary to substantiate the 
pending claim.  38 U.S.C.A. § 5103 (West 2002 & Supp. 2005).  
Clearly, the veteran's treatment records from the Lawson 
Clinic are pertinent to his pending claims regarding 
disabilities of the low back and left knee.  VA is also 
obligated to make reasonable efforts to assist a claimant in 
obtaining evidence necessary to substantiate his claim.  
38 U.S.C.A. § 5103A (West 2002).  This duty includes 
obtaining pertinent medical records identified by the 
veteran.  38 U.S.C.A. § 5103A(b) (West 2002).  Therefore, 
medical treatment records from the Lawson Chiropractic Clinic 
must be obtained prior to any final adjudication of the 
veteran's pending claims.  

The veteran also seeks a compensable initial rating for his 
service-connected lumbosacral strain.  This disability is 
rated based, in part, on the limitation of motion of the 
affected joint or group of joints.  38 C.F.R. § 4.71a, 
Diagnostic Code 5237 (2005).  Regarding orthopedic 
disabilities, the United States Court of Appeals for Veterans 
Claims (Court) has held that criteria which provide a rating 
based on limitation of motion require consideration of 
38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to 
functional loss of the joints due to pain, etc.).  See DeLuca 
v. Brown, 8 Vet. App. 202 (1995).  Therefore, to the extent 
possible, the degree of additional disability caused by 
functional losses, such as pain, weakened movement, excess 
fatigability, or incoordination, should be noted in terms 
consistent with applicable rating criteria.  

However, such has not been accomplished in the present case.  
While the veteran underwent VA orthopedic examination in 
April 2003, the examiner did not state whether the veteran 
had any additional impairment or functional loss due to such 
factors as pain, pain on use, weakened movement, excess 
fatigability, or incoordination.  VA is obligated to make 
reasonable efforts to assist a claimant in obtaining evidence 
necessary to substantiate his claim.  38 U.S.C.A. § 5103A 
(West 2002).  That duty to assist includes providing a 
medical examination when such an examination becomes 
necessary to substantiate the claim.  38 U.S.C.A. § 5103A(d) 
(West 2002).  Based on the above, this claim must be remanded 
to the RO in order to afford the veteran a VA examination 
which considers all lumbosacral spine impairment present.  

The veteran has also submitted directly to the Board private 
medical treatment records of his low back received in June 
2005.  Since this evidence has not been considered by the RO, 
the agency of original jurisdiction, and a waiver of such 
consideration was not submitted by the veteran, this evidence 
must be considered by the RO prior to any consideration of 
such evidence by the Board.  38 C.F.R. § 20.1304(c) (2004); 
Disabled Veterans of America v. Secretary of Veterans Affairs 
(DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003).  

The Board also notes that during the course of this appeal, 
the criteria for the evaluation of lumbosacral strains were 
modified.  See 68 Fed. Reg. 51454-58 (August 27, 2003)(to be 
codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43).  
When a law or regulation changes while a case is pending, the 
version most favorable to the claimant applies, absent 
legislative intent to the contrary.  See Dudnick v. Brown, 10 
Vet. App. 79 (1997).  Revised statutory or regulatory 
provisions, however, may not be applied to any time period 
before the effective date of the change.  See 38 U.S.C.A. 
§ 7104(c) (West 2002); VAOPGCPREC. 3-2000 (April 10, 2000); 
Rhodan v. West, 12 Vet. App. 55, 57 (1998).  Therefore, the 
veteran's low back disability must be evaluated in light of 
the both the current and prior criteria for spinal 
disabilities.  

Therefore, in light of the above, this claim is remanded for 
the following additional development:  

1.  The RO should contact the veteran and ask 
that he identify all sources, to include the 
Lawson Chiropractic Clinic, of private 
medical treatment not already of record for 
his service-connected lumbosacral strain and 
his claimed left knee disability.  He should 
also be requested to furnish signed 
authorizations for release to the VA of 
private medical records in connection with 
each non-VA source identified.  Additionally, 
the RO should request that the veteran 
provide information as to the dates of any 
treatment for these disabilities at any VA 
Medical Center (VAMC) since March 2005.  
Copies of the medical records (not already in 
the claims folder) from all sources should be 
requested.  All records obtained should be 
added to the claims folder.  If requests for 
any private treatment records are not 
successful, the RO should inform the veteran 
of the nonresponse so that he will have an 
opportunity to obtain and submit the records 
himself, in keeping with his responsibility 
to submit evidence in support of his claim.  
38 C.F.R. § 3.159 (2005).  The RO should also 
request or tell the veteran to provide any 
evidence in his possession that pertains to 
his claim.  Furthermore, the veteran should 
be specifically informed as to what portion 
of evidence he is required/expected to 
submit, and which portion of the evidence the 
VA would attempt to obtain in order to assist 
the veteran in substantiating his claim, per 
38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  

2.  The veteran should be scheduled for a 
VA orthopedic examination in order to 
determine the impairment resulting from 
his service-connected disability of the 
lumbosacral spine.  The claims file 
should be reviewed by the examiner in 
conjunction with the examination.  The 
examination should include full range of 
motion studies, X-rays, and any other 
tests considered necessary by the 
examiner.  The examiner should provide 
ranges of motion for the thoracolumbar 
spine, reflecting forward flexion, 
extension, left and right lateral 
flexion, and left and right rotation.  In 
testing range of motion of the veteran's 
thoracolumbar spine, the examiner should 
note if the veteran has any additional 
limitation of motion due to such factors 
as weakness, fatigability, 
incoordination, restricted movement, or 
pain on motion.  The examiner should also 
determine the frequency and duration of 
any incapacitating episodes resulting 
from the veteran's lumbosacral spine 
disability.  Any other disability, to 
include any neurological disability, 
resulting from the veteran's lumbosacral 
strain also should be noted.  The medical 
basis for all opinions expressed should 
also be given.

3.  The veteran should be scheduled for a 
VA orthopedic examination to determine 
whether he has a current left knee 
disorder, and whether such a disability 
is due to or the result of an injury 
sustained during military service. The 
veteran's claims folder should be sent to 
a VA physician for review in conjunction 
with the examination.  A complete 
orthopedic examination, to include any 
clinical tests considered necessary by 
the examiner, should be conducted.  After 
fully reviewing the record and examining 
the veteran, the examiner should state 
whether the veteran does in fact have a 
current disability of the left knee.  If 
so, the examiner should also state 
whether it is at least as likely as not 
(that is, a probability of 50 percent or 
better) that the veteran's current left 
knee disorder began during military 
service, or is otherwise etiologically 
related to any in-service disease or 
injury.  The medical basis for all 
opinions expressed should also be given.  

4.  Thereafter, the RO should again 
consider the veteran's pending claims in 
light of any additional evidence added to 
the record.  In readjudicating the 
veteran's increased rating claim, the RO 
should take into consideration 38 C.F.R. 
§§ 4.14, 4.40, 4.45, 4.59, and the 
holding in DeLuca v. Brown, 8 Vet. App. 
202, 204-7 (1995).  If the benefits 
sought on appeal remain denied, the 
appellant and his representative should 
be furnished a Supplemental Statement of 
the Case and given the opportunity to 
respond thereto.  

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The appellant need take no action 
unless otherwise notified.  VA will notify the appellant if 
further action is required on his part.  

The purpose of the examinations requested in this remand is 
to obtain information or evidence (or both) which may be 
dispositive of the appeal.  Therefore, the veteran is hereby 
placed on notice that pursuant to 38 C.F.R. § 3.655 (2005) 
failure to cooperate by attending the requested VA 
examination may result in an adverse determination.  See 
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).  

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 Supp. 2005).



______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs