Citation Nr: 0811391 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-25 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for arthritis of the lumbosacral spine. 2. Entitlement to a disability rating higher than 10 percent for internal derangement of the right knee. 3. Entitlement to a disability rating higher than 10 percent for internal derangement of the left knee. 4. Entitlement to a compensable disability rating for arthritis of the right hip. 5. Entitlement to a compensable disability rating for arthritis of the left hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from April 1971 to April 1973, and from December 1979 to November 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in January 2008. A transcript of that hearing is associated with the claims file. REMAND At the January 2008 hearing, the veteran stated that his service-connected hip, knee, and lumbar spine disabilities have worsened since the most recent VA examination. VA's duty to assist the veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). The veteran also identified recent private treatment records and records from a Social Security Administration (SSA) disability claim. These records are potentially pertinent to the issues on appeal and must be obtained prior to the Board reaching a decision on the claims. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should send the veteran a letter requesting him to provide any pertinent evidence in his possession, and any outstanding medical records, pertaining to treatment or evaluation of his knee, hip, and lumbar spine disabilities during the period of these claims, or the identifying information and any necessary authorization to enable VA to obtain such records on his behalf. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. The RO or the AMC should specifically contact the SSA and obtain any disability decision for the veteran and the record upon which such decision was based. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. Then, the veteran should be afforded an examination or examinations, by a physician or physicians with appropriate expertise to determine the current degree of severity of his service-connected knee, hip and lumbosacral spine disabilities. The claims folder must be made available to and reviewed by the examiner(s). All indicated studies, including range of motion studies in degrees, should be performed. In reporting the results of range of motion testing of the lumbar spine, hips and knees, the examiner(s) should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner(s) should assess the degree of severity of any pain. Tests of joint movement of the lumbar spine, hips, and knees, against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner(s). If feasible, the examiner(s) should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner(s) should also express an opinion concerning whether there would be additional limits on functional ability of the lumbar spine, hips, and knees, on repeated use or during flare-ups (if the veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner(s) should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Specific to the knees, the examiner should provide an opinion concerning the degree of severity of any instability or subluxation of the knees. The examiner should also determine if the knees lock and if so the frequency of the locking. If the veteran is found to arthritis of either knee, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the veteran's military service or was caused or chronically worsened by the service- connected internal derangement. Specific to the lumbar spine, if the veteran is found to have intervertebral disc syndrome, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the veteran's military service or was caused or chronically worsened by any service- connected disability. To the extent possible, the manifestations of any non-service-connected disorders should be distinguished from those of the service-connected disabilities. For example, if pain is noted in the knee, whether such pain is attributable to service-connected derangement, or non- service-connected arthritis. The examiner(s) should also provide an opinion concerning the impact of the service-connected disabilities on the veteran's ability to work. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the veteran's claims. If any benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2007). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).