Citation Nr: 0814383 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-18 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for low back disability. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee. 3. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The veteran served on active duty from July 1959 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, wherein the RO granted service connection for low back disability; an initial evaluation of 20 percent was assigned, effective March 23, 2004. Also on appeal from the RO's July 2005 rating action was the issue of entitlement to service connection for bilateral knee disability. By a December 2007 rating action, the RO granted service connection for degenerative joint disease of the right and left knees; each knee was assigned a 10 percent evaluation, effective March 23, 2004. The Board has construed the veteran's representative's January 2008 written argument, wherein he disagreed with the initial 10 percent evaluations assigned to service-connected degenerative joint disease of the right and left knees, as a notice of the disagreement with the RO's December 2007 rating action. (See, January 2008 written argument, prepared by the veteran's representative). The RO has not, however, provided the veteran with a statement of the case (SOC) that addressees the issues of entitlement to initial evaluation in excess of 10 percent for degenerative joint disease of the right and left knees. This will be addressed in the remand below. See Manlincon v. West, 12 Vet. App. 238 (1999). In January 2008, the veteran testified before the undersigned Veterans Law Judge at the Newark, New Jersey RO. A copy of the hearing transcript has been associated with the claims file. In a February 2008 written argument to the RO, the veteran's representative, on behalf of the appellant, raised the issue of entitlement to an increased compensable rating for service-connected bilateral hearing loss. As this issue has not been developed for appellate review, it is referred to the RO for appropriate action. Finally, various documents of record reflect that the veteran has maintained that he is unemployable, in part, due to service-connected low back disability. (see, VA Form 9, received by the RO in May 2006, and January 2008 hearing transcript, (T.) at page (pg.) 11). Thus, it appears that veteran has raised an inferred claim of for an individual unemployability rating (TDIU). This matter is referred to the RO for appropriate action. Cf. Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (when an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of service-connected unemployability in the claimant's claims file, evaluation of that rating increase must also include an evaluation of a reasonably raised claim for an individual unemployability rating). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board has reviewed the veteran's claims file and finds that additional substantive and procedural development is necessary prior to a final Board disposition. I. Substantive Development The Board finds that an additional VA spine examination, along with a VA neurological examination, are needed to determine the current severity of the service-connected low back disability. More specifically, the record contains contrasting evidence as to whether the veteran currently has any associated neurological deficits as a result of the service-connected low back disability. In this regard, associated objective neurological abnormalities are to be evaluated separately when rating the service-connected low back disability. See, 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5243 (2007). To this end, VA outpatient and examination reports, dated in March and July 2005, and August 2007, respectively, show that the veteran denied having neurogenic claudications (e.g., radicular pain exacerbated by walking and improved by changing positions) and weakness and numbness in bilateral lower extremities. (see, VA outpatient and examination reports, dated in March and July 2005, and August 2007, respectively). In contrast, private reports, dated in November 2004 and July 2006, show that the veteran had received treatment for "bilateral sciatic neuritis" and back pain that radiated into the left knee. (see, treatment reports, prepared by F. S., D. C., and M. D., M. D., dated in November 2004 and July 2006, respectively). More recently, during a January 2008 hearing before the undersigned at the RO, the veteran testified that he had "tingling" down the right [leg] and increasing numbness in the hip and buttocks area. (T). at pages (pgs.) 5, 6). In light of the foregoing, the Board finds that prior to further appellate review of the veteran's initial evaluation claim for service-connected low back disability, VA spine and neurological examinations would be appropriate to determine the presence, if any, of any associated objective neurologic abnormalities, such as the presence of any sciatic neuritis. Id. II. Procedural Development By a December 2007 rating decision, the RO granted service connection for degenerative arthritis of the right and left knees; each knee was assigned an initial 10 percent evaluation, effective March 23, 2004. The Board has construed the veteran's representative's January 2008 argument, wherein he disagreed with the initial 10 percent evaluations assigned to service-connected degenerative joint disease of the right and left knees, as a notice of the disagreement with the RO's December 2007 rating action. (See, January 2008 written argument, prepared by the veteran's representative). As the veteran's representative has filed a notice of disagreement, a remand is necessary in order for the RO to issue a SOC addressing the issues of entitlement to initial evaluations in excess of 10 percent for degenerative joint disease of the right and left knees. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issues of entitlement to initial evaluations in excess of 10 percent for service- connected degenerative arthritis of the right and left knees. (see, December 2007 rating action). Advise the appellant of the need to timely file a substantive appeal if appellate review is desired. If, and only if, a timely substantive appeal on the aforementioned issue is filed should these claims be returned to the Board. See, 38 U.S.C.A. §§ 7104(a), 7105A (West 2002). 2. Schedule the veteran for orthopedic and neurological examinations to determine the current severity and impairment of his service-connected low back disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. Range of motion studies should be accomplished and the examiner should indicate whether because of the veteran's age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in this particular individual should be considered normal for this individual. The examiner is specifically requested to comment on the following: (a) Identify all orthopedic and neurologic symptoms due to service-connected low back disability. Describe any associated objective neurologic abnormalities including but not limited to, the presence of any mild, moderate, and moderately severe incomplete paralysis or neuritis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8620 (2007). Describe any nerve(s) affected, or seemingly affected by any nerve root compression that may be present; (b) Indicate whether the veteran has favorable ankylosis of the entire thoracolumbar spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; (c) Indicate whether the veteran has had incapacitating episodes having a total duration of at least four (4) weeks but less than six (6) weeks during the past 12 months; and (d) Describe the effects, if any, of the service-connected low back disability on the veteran's ability to work in all forms of substantially gainful employment- not solely as a property manager. A complete rationale should be provided for all opinions expressed. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the report. 3. If the claims perfected for appeal are not fully granted, issue a supplemental statement of the case, that addresses all evidence received after the September 2007 supplemental statement of the case. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims including reporting for any scheduled VA examinations, is both critical and appreciated. The appellant is also advised that failure to report for the scheduled examination may result in the denial of his claim of entitlement to an initial evaluation in excess of 20 percent for low back disability. 38 C.F.R. § 3.655 (2007). These claims must be afforded expeditious treatment. The law requires that all claims that is 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). _________________________________________________ CHERYL L. MASON 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).