Citation Nr: 0814332 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-31 788A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for a right knee disorder, currently rated 20 percent disabling. 2. Entitlement to service connection for arthritis of the lumbar spine, claimed as secondary to service-connected right knee disorder. 3. Entitlement to service connection for arthritis of the cervical spine, claimed as secondary to service-connected right knee disorder. 4. Entitlement to service connection for numbness in the hands, claimed as secondary to service-connected right knee disorder. 5. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for arthritis of the back. 6. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for numbness of the hands. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from December 1961 to February 1965. The appeal comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran's claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151, based on treatment in January 1962, are here denied because the veteran was in service the U.S. Army in January 1962, and hence a claim under 38 U.S.C.A. § 1151 is not applicable to those facts, as discussed in this decision below. However, a claim based on those facts constitutes a claim for direct service connection. Accordingly, the Board here refers for appropriate RO action claims for direct service connection for a back disorder and numbness of the hands. The issues of entitlement to secondary service connection for lumbar spine arthritis and cervical spine arthritis, and entitlement to TDIU, are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. FINDINGS OF FACT 1. For the entire rating period beginning March 13, 2002, the veteran's right knee disorder, including consideration of such factors as pain, pain on undertaking motion, fatigue or loss of endurance, loss of strength, and incoordination, most nearly approximates disability manifested by limitation of extension of the knee to 15 degrees. 2. For the entire rating period beginning March 13, 2002, the veteran's right knee disorder does not reflect an additional disability not encompassed in that equated, in this decision, to limitation of extension of the knee to 15 degrees. 3. There is no causal link shown between the veteran's service-connected right knee disorder and numbness of the hands. 4. The veteran was serving on active military duty in January 1962. CONCLUSIONS OF LAW 1. For the entire appeal period beginning on March 13, 2002, the criteria for a rating above the 20 percent assigned for a right knee disorder are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5010- 5261 (2007). 2. For the entire appeal period beginning on March 13, 2002, no additional, separate rating is warranted for the veteran's right knee disorder. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). 3. The criteria for service connection for numbness of the hands as secondary to a right knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.310 (2007). 4. There is no legal basis for entitlement to compensation under 38 U.S.C.A. § 1151 for numbness of the hands caused by in-service treatment in January 1962. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.358, 3.361 (2007). 5. There is no legal basis for entitlement to compensation under 38 U.S.C.A. § 1151 for a back disorder caused by in- service treatment in January 1962. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.358, 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (herein, the RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent complete VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or a supplemental SOC (SSOC). Mayfield; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For the claim for secondary service connection for numbness of the hands, and the claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for numbness of the hands and a back disorder based on treatment in January 1962, there is no reasonable possibility that additional notice and development assistance will further these claims. The claim for secondary connection for numbness of the hands is not supported by any evidence beyond the veteran's bare assertion of a causal link between his right knee disorder and the hand numbness. He has not pointed to any medical evidence that might be supportive, and has not presented any theory by which such a causal link might be implicated. The claim thus presents no reasonable possibility of furtherance through notice and development. The claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are claimed based on treatment in service, which is not VA treatment and hence does not meet the legal criteria for an 38 U.S.C.A. § 1151 claim. Denial of those 38 U.S.C.A. § 1151 claims is thus required as a matter of law, with no reasonable possibility presented of furthering those claims by any notice or development. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) which are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. In the present case, the notifications to the veteran were entirely adequate to inform him, or any reasonable person for that matter, of what was required, and that he needed to provide evidence with regard to how his disabilities affect him in his daily life. There is no prejudicial error shown. The RO issued VCAA notice in April 2003 and June 2003 letters, prior to the RO's initial adjudication January 2004 of the claim for an increased evaluation for a right knee disorder. These letters effectively satisfied all four notice requirements of the VCAA. The letters informed of the evidence required to substantiate the claim for an increased rating. See 38 C.F.R. Part 4. They also informed what evidence VA would seek to provide and what evidence the veteran was expected to provide. Also by these letters, the veteran was requested to inform of any additional evidence pertinent to his claim, and was asked to submit any additional pertinent evidence he had. He was also told that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. These Dingess elements of notice were not afforded the veteran prior to the RO adjudication of the claims denied in January 2004. However, there is ultimately no prejudice to the veteran's right knee disorder increased rating claim based on failure to provide that Dingess notice, because that claim is herein denied, and no change in disability rating or effective date will be assigned. The veteran was afforded a VCAA letter in March 2006 informing him of Dingess considerations of disability rating and effective date, and an SSOC was thereafter issued in July 2007. VA has a duty to assist the veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service medical records (SMRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The April and June of 2003 VCAA letters requested that he advise of any VA and/or private medical sources of evidence pertinent to his claim, and to provide necessary authorization to obtain those records. It also requested evidence and information about treatment after service, in support of the claim. He replied in July 2003 informing of private treatment sources and providing authorizations to obtain records. The RO then duly requested evidence from these sources, and informed the veteran of these efforts by an August 2003 letter, then also informing the veteran of his ultimate responsibility to see that pertinent records not in federal possession are obtained. In an August 2003 submission, the veteran informed that he was waiting for information from multiple private treatment sources. Some private treatment records were obtained, particularly those submitted by the veteran. He was duly informed, by the January 2004 rating action as well as by the subsequent SOC and SSOCs, of evidence obtained in support of his claims, and thus by implication of evidence not obtained. VA examination records and SMRs have been obtained and associated with the claims folder. There is no indication that pertinent VA records have not been obtained. All records received were associated with the claims folder, and again, the veteran was duly informed of records obtained in furtherance of his claims, and thus by implication of records not obtained. The veteran was adequately informed of the importance of obtaining all relevant records. Hence, no further notice or assistance to him is required to fulfill VA's duty to assist the appellant in the development of this claim for an increased rating for a right knee disorder. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was afforded VA examinations in June 2004 and August 2005 addressing his right knee disorder, with review of the claims folder. Upon reviewing the claims folder, the Board finds that objective clinical findings are supportive of the reported clinical findings upon those examinations. The Board finds these VA examinations to be adequate for purposes of the present determination as to an increased rating for the veteran's right knee disorder. The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. Accordingly, the Board finds that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, supra. II. Increased Rating for Right Knee Disorder Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). When 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). In all cases, the Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. §§ 4.1, 4.10. When reviewing the level of disability due to a service- connected joint disorder, when the rating is based on limitation of motion, the Board must consider an increased schedular rating based on functional loss due to pain on undertaking motion, weakened movement, fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45 (2007); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is no diagnostic code specific to the disability for which the veteran is service-connected, the service- connected disability is rated by analogy under a diagnostic code for a closely related condition that approximates the anatomical localization, symptomatology, and functional impairment. See 38 C.F.R. §§ 4.20, 4.27 (2007). Medical evidence is generally required to establish a medical diagnosis or to address other medical questions, and lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support claims by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the Board has duly considered the veteran's lay statements, including as presented at examination and treatment records and in submitted statements. While such symptoms as pain and fatigability may be to some degree inherently subjective, the Board looks to the veteran's statements as supported by more objective indicia of disability, including observable limitations of functioning, test and X-ray findings, and conclusions of medical treatment professionals and examiners. Potentially applicable rating criteria for disorders of the knees, with arthritis, are here listed. 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). 525 6 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 6 0 In flexion between 20° and 45° 5 0 In flexion between 10° and 20° 4 0 Favorable angle in full extension, or in slight flexion between 0° and 10° 3 0 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2007). 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007). 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2007). 526 2 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). The Board has reviewed the entire record and finds that the 20 percent rating assigned by virtue of this decision for the veteran's right knee disorder reflects the most disabling this disorder has been since the March 13, 2002, date of receipt of claim for increase. Thus, the Board concludes that a staged rating for this disorder is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A March 1994 private surgical record informs of arthroscopic surgery performed on the right knee. Post-operative diagnoses for the right knee included degenerative tear of the posterior horn of the medial meniscus, grade IV defects of the patella, and supra-patellar pouch and medial shelf plicae. Upon VA examination in June 2004, the examiner found right knee range of motion to zero degrees in extension and from zero to 130 degrees in flexion. Motion was painful in the right knee, but the knee was stable without medial or collateral ligament laxity, and with anterior cruciate ligament and posterior cruciate ligaments stable; McMurray's sign was normal for the knees. The examiner failed to address DeLuca factors of painful motion, etc. The veteran's secondary service connection claims were the focus of this examination. Upon VA examination in August 2005, the veteran complained of daily pain in the knee and stiffness; giving way approximately once every two months; mild occasional swelling, grinding, and popping; and worsening symptoms with more strenuous activity. The veteran reported experiencing flare-ups in the knee approximately once weekly, when performing such activities as climbing a ladder, or pushing a lawn mower excessively. He reported that when these flares occurred he could then only get around minimally on the knee. He wore an open-patella hinged knee brace, and used a cane as need. He took pain medication for his back disorders, and these were also effective for his right knee. He described daily activities including walking 20 to 30 minutes at a slow pace, with stoppage if the knee began to hurt excessively. He reported performing daily activities independently, including a moderate amount of yard work. He reported being disabled for a number of years due to his back. The August 2005 examiner noted the veteran's past history of arthroscopy. The veteran denied any history of dislocation or recurrent subluxation. The examiner found right knee range of motion against strong resistance to zero degrees extension and to 140 degrees flexion. However, the examiner noted that the veteran had pain and guarding with extension of the right knee between 40 degrees and zero degrees. The examiner also noted that the veteran's pain with extension worsened with repeated motion, when extending from full flexion. The examiner accordingly concluded that the veteran had slowing motion, lack of endurance, and lessening of power to resistance, as associated with this impairment in extension. Squatting was also limited to 75 percent of full squat due to onset of pain. The examiner found tenderness in the joint, and crepitus with flexion and extension. However, the examiner found the right knee stable, without signs of instability. No gait difficulties were found, and no abnormal wear patterns were present on the feet or shoes. Ankylosis was not present, and neither was inflammatory arthritis. X-rays showed mild degenerative changes in the knee. The examiner diagnosed degenerative arthritis and residuals (post-operative) of Osgood-Schlatter's disease. Regarding DeLuca questions of pain including pain on repeated use of the knee and during flare-ups, as well as fatigue, weakness, lack of endurance, and incoordination, the examiner found that the veteran did have further limitation of motion subtly present upon extension from full flexion when the motion was repeated, at the noted range between 40 and zero degrees, with associated lessened power, slowing motion, and increased pain. The examiner also noted the reported symptoms during flare-ups of lessened endurance, more pain with ambulation, and resulting lessened of mobility for two to three days during flare-ups. The Board finds that the August 2005 examination findings are reasonably consistent with the past documented treatment records for the right knee, allowing the Board to reply on the examination report as reflective of the level of disability of the knee during the claim period. The Board has considered all applicable criteria, and concludes that the veteran's right knee disorder most closely approximates that for arthritis with limitation of extension to 15 degrees, warranting a 20 percent evaluation. This rating takes into consideration the noted limitation of extension from full flexion with repeated motion, with consideration that this is a subtle and thus a slightly impairing condition. Were this repeated extension impairment all that was present, the Board would consider the condition to warrant only a zero percent evaluation, as equivalent to limitation of extension to five degrees under Diagnostic Code (DC) 5261. However, this subtle limitation is also associated with some pain with motion, and lessened endurance, lessened power, and slowing of motion. Flare-ups with excessive activity including pushing a lawn mower beyond the endurance capacity of the knee also produced similar levels of impairment, with resulting need to limit activities, thus suggesting a greater level of overall impairment in the knee more closely approximating limitation of extension to 15 degrees, warranting a 20 percent evaluation, including based on DeLuca factors. The Board notes that with a disability profile as is presented here, the choice of rating code by which to assign the rating is somewhat flexible, since none fits precisely. What is required though, is to select the criteria that most closely approximate the disability profile, based upon anatomical localization, symptomatology, and functional impairment. See 38 C.F.R. §§ 4.20, 4.27. The Board here applies Diagnostic Code 5261, but might as readily have chosen DC 5257, based on other disability of the knee. The Board here finds that under either code the disability most nearly approximates that for a 20 percent evaluation, including based on DeLuca factors of pain, pain on motion, and loss of strength or endurance, based on moderate knee disability or disability equivalent to limitation of extension to 15 degrees. The preponderance of the evidence is against assignment of a higher disability evaluation under either criteria, whether 30 percent for severe disability of the knee under DC 5257, or 30 percent for disability equivalent to limitation of extension to 20 degrees under DC 5261. A greater level of impairment equivalent to these levels of disability is not shown in this case. The Board has also considered the possibility of assignment of multiple ratings for the knee, but also finds that this is not warranted in this case. The 20 percent rating based on disability equivalent to limitation of extension to 15 degrees encompasses the whole of the service-connected right knee disability, and hence a separate, additional rating is not warranted in this case. The Board accordingly concludes that the preponderance of the evidence is against an increased disability rating for the veteran's right knee disorder from the 20 percent assigned, and therefore the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Service Connection for Numbness of the Hands, Claimed as Secondary to Service-Connected Right Knee Disorder Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non- service-connected disorder which is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non- service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310, above, the regulation which governs claims for secondary service connection, was amended during the pendency of this claim and appeal. The intended effect of the amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006), now codified at 38 C.F.R. § 3.310(b) (2007). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in the present appeal. The veteran has claimed entitlement to service connection for numbness of the hands as secondary to service-connected right knee disorder. He has not provided a theory of the case to support the claim, and none is indicated by the record as a whole. There is no medical evidence of record to support a causal link, and the Board, on a logical basis, cannot conceive how the two could be related. Thus, the veteran's contention that the two are related is not cognizable to support the claim, because such an association is not discernable through lay knowledge, to include any knowledge or information submitted into the record. Espiritu; cf. Jandreau. Accordingly, the preponderance of the evidence is against the claim for service connection for numbness of the hands as secondary to service-connected right knee disability. 38 C.F.R. § 3.310. The preponderance of the evidence is against the claim, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. IV. Claims for Benefits Pursuant to 38 U.S.C.A. § 1151 for Numbness of the Hands and a Back Disorder In analyzing claims under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2007), it is important to note that the law underwent amendment, effective for claims filed on or after October 1, 1997. In this case, the veteran filed his section 1151 claim in July 2002. Accordingly, the post October 1, 1997, version of the law and regulation must be applied. See 38 C.F.R. § 3.361 (2007); VAOPGCPREC 40-97. In general, when a veteran incurs additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C.A. § 1151. The provisions of 38 U.S.C.A. § 1151 provide that when there is no willful misconduct by a veteran, disability resulting from VA hospital care furnished to the veteran will be compensated in the same manner as if service connected if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which was not reasonably foreseeable. In order to establish entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, there must be (1) medical evidence of a current disability; (2) medical or, in some circumstances, lay evidence of the incurrence or aggravation of an injury or disease as the result of VA hospitalization or treatment; and (3) medical evidence of a nexus between the asserted injury or disease and the current disability. See Jones v. West, 12 Vet. App. 460, 464 (1999). The veteran has claimed entitlement to benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for a back disorder and for bilateral hand numbness, based upon treatment he has clearly described as having been received in January 1962. However, in January 1962 the veteran was in active military service. As pertinent herein, 38 U.S.C.A. § 1151 only allows for benefits based on VA treatment or hospitalization, and hence is not applicable to in-service treatment. Accordingly, there is no basis in law for the veteran's claim for 38 U.S.C.A. § 1151 benefits based on that in-service care or treatment. Therefore, his claims of entitlement to VA benefits for numbness of the hands and a back disorder pursuant to the provisions of 38 U.S.C.A. § 1151 must be denied as a matter of law. See Sabonis v. Brown, supra. ORDER Entitlement to an increased rating above the 20 percent currently assigned for a right knee disorder is denied. Entitlement to service connection for numbness of the hands, claimed as secondary to a right knee disorder, is denied. [Continued on Next Page] Entitlement to benefits for numbness of the hands pursuant to the provisions of 38 U.S.C.A. § 1151, based on treatment in January 1962, is denied. Entitlement to benefits for a back disorder pursuant to the provisions of 38 U.S.C.A. § 1151, based on treatment in January 1962, is denied. REMAND The veteran has provided an undated private medical opinion by S.R., M.D., stating that the veteran has severe osteoarthritis of both knees, and that he has developed osteoarthritis also in the hips and lumbar spine. The physician opines that the arthritis of the hips and lumbar spine "could be caused by and certainly aggravated by his difficulties with his knees." That private opinion, while possibly insufficiently definite to itself sustain the veteran's claim for secondary service connection for arthritis of the lumbar spine, does clearly indicate the possibility of such a causal link, sufficient to warrant a VA examination and medical opinion addressing secondary causation of the veteran's arthritis of the lumbar spine, in support of his secondary service connection claim for that disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran was afforded VA joint and spine examinations in June 2004, including specifically to address a possible causal link between the veteran's right knee disorder and his claimed low back disorder. Unfortunately, the examiner (who conducted both of these June 2006 examinations) did not address the question of aggravation. As noted above, on page 16, the regulation which governs claims for secondary service connection has recently been amended, and secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310(b) (2007). Accordingly, the case must be remanded for a further VA examination properly addressing the question of secondary service connection for the veteran's low back disorder as due to the veteran's service-connected disorders (now including both knees and the right hip), including based upon possible aggravation. The veteran's claim for service connection for cervical spine arthritis, as secondary to lumbar spine disorder, must necessarily await the outcome of the lumbar spine arthritis claim. Similarly, the veteran's claim for TDIU must await the outcome of the veteran's claims for service connection for spine disorders. The Court has held in this regard that a claim which is inextricably intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the RO should take appropriate action to assure compliance with the provisions of the precedential decision of the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), discussed above at pages 5-6. Accordingly, the case is REMANDED for the following action: 1. Afford the veteran an appropriate VA examination to address both the nature and etiology of the veteran's claimed cervical and lumbar spine disorders, and the question of employability due to service-connected disabilities. The claims folder must be available to the examiner for review in conjunction with the examination. Any indicated, non-invasive tests should be conducted. The examiner should review past medical records, inclusive of VA examination reports from June 2004 and August 2005. The examiner should address the following: a. For the veteran's lumbar arthritis, based upon examination findings, appropriate tests and studies, historical records, and medical principles, the examiner should provide an opinion, with full clinical rationale, as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the lumbar arthritis was caused or aggravated (permanently increased in severity) by the veteran's service- connected left or right knee disorders, or right hip disorder. If the examiner finds aggravation, the examiner should describe the nature and extent of this aggravation of the lumbar arthritis - determining that portion which is due to the service- connected disabilities and that portion which is unrelated to the service-connected disabilities. b. If the answer to question a. is in the affirmative (i.e., if arthritis of the low back was caused or aggravated by the veteran's service-connected left or right knee disorders or right hip disorder), the examiner must answer, again based upon examination findings, appropriate tests and studies, historical records, and medical principles, whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the portion of the veteran's lumbar arthritis found to be caused or aggravated by a service-connected disability, in turn caused or aggravated cervical spine arthritis. If the examiner finds aggravation, the examiner should describe the nature and extent of the portion of the cervical spine disorder caused or aggravated by the service-related (portion) of the lumbar arthritis - determining that portion due to the service-connected disabilities, and that portion unrelated to the service-connected disabilities. c. The nature and extent of all service- connected disorders, as well as the any cervical and lumbar arthritis to the extent causally attributed to service-connected disorders including based on aggravation, should then be addressed. The examiner should then provide an opinion addressing the extent to which service-connected disorders, together with cervical and lumbar spine arthritis to the extent the examiner finds cervical and lumbar spine arthritis to be caused or aggravated by service-connected disorders (in answer to questions a and b, above, may preclude the veteran from engaging in substantially gainful employment. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. f. The examiner should provide complete explanations for his/her opinions. 2. Thereafter, a RO should readjudicate the remanded claims de novo. If any one or more of the benefits sought are not granted to the veteran's satisfaction, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs