Citation Nr: 1112237 Decision Date: 03/28/11 Archive Date: 04/06/11 DOCKET NO. 09-31 355 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for low back disability, to include as secondary to service-connected chondromalacia of the patella of the right knee. 2. Entitlement to a rating in excess of 10 percent for chondromalacia of the patella of the right knee. REPRESENTATION Appellant represented by: Nicholas Parr, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Dr. Craig N. Bash ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to March 1987. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2007 rating decision in which the RO increased the Veteran's rating for chondromalacia of the patella of the right knee to 10 percent, effective August 16, 2006, and denied a claim for service connection for low back disability. The Veteran filed a notice of disagreement (NOD) in June 2008. The RO issued a statement of the case (SOC) in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2009. In October 2010, the Veteran and Dr. Bash testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of that hearing is of record. Although the RO has granted a higher rating of 10 percent for the Veteran's chondromalacia of the patella of the right knee, inasmuch as a higher rating for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). At the hearing, the Veteran's attorney submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2010). In October 2010, the Veteran's attorney submitted additional medical evidence to the Board without a waiver of initial RO consideration of the evidence. The Board's decision addressing the claim for a rating in excess of 10 percent for chondromalacia of the patella of the right knee is set forth below. The claim for service connection for a low back disability, to include as secondary to service-connected chondromalacia of the patella of the right knee, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that the Veteran has raised the issues of service connection for a kidney disorder, request to reopen the claim for service connection for a right hip disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). It does not appear that any of these claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Pertinent to the August 2006 claim for increase, the Veteran's chondromalacia of the patella of the right knee has been manifested, on average, by flexion of the leg limited to 130 degrees, with findings of pain and crepitus; there have been no findings of instability, subluxation, or other impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chondromalacia of the patella of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.3, 4.7, 4.40, 4.45 4.71, 4.71a, Diagnostic Code 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (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 claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In this appeal, in an October 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The April 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the October 2006 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. Post rating, a July 2009 SOC provided the Veteran with the rating criteria used to evaluate his service-connected disability, which suffices, in part, for Dingess/Hartman. After issuance of the July 2009 SOC, and opportunity for the Veteran to respond, the August 2010 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of various private medical records and opinion, and the reports of December 2006, September 2008, December 2008, and August 2010 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's October 2010 Board hearing, along with various written statements provided by the Veteran and by his attorney, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim herein decided is warranted. The Board notes that, in October 2010, he Veteran's attorney submitted an Independent Medical Expert Opinion from Dr. Craig Bash without a waiver of initial RO consideration of that evidence. While Dr. Bash briefly discussed the Veteran's knee, he only reiterated previous arguments, noting that he did not see anything new in the claims file or learn anything new in the hearing testimony that would make him want to change his previous opinion of October 2010. 38 C.F.R. §20.1304(c) indicates that submission of pertinent evidence after the last SSOC requires a waiver of initial RO consideration or should be referred to the agency of original jurisdiction (AOJ) for consideration. Here, however, the Board finds that the October 2010 opinion is not pertinent to the Veteran's claim for higher rating for the Veteran's right knee because it only reasserts an opinion that is already of record (and was considered by the AOJ). Therefore, the Board finds that a remand for initial RO consideration of this evidence is unnecessary. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Historically, the Veteran suffered an injury to his right knee in service when his knee was run over by a car. The Veteran had pain and discomfort and was medically discharged. The Veteran had persistent knee pain and eventually had surgery in 1996. The Veteran filed his claim for increase in August 2006. The Veteran's right knee disability is rated as 10 percent disabling under Diagnostic Code 5257. Under that code, recurrent subluxation or lateral instability of the knee is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. Alternatively, the Board has considered the diagnostic criteria for rating knee disabilities on the basis of limitation of motion. Normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, limitation of flexion of the leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the pertinent evidence in light of the applicable legal authority, the Board finds that a rating greater than 10 percent for the Veteran's chondromalacia of the patella of the right knee is not warranted at any point pertinent to the current claim for increase. In December 2006, the Veteran underwent VA examination. The Veteran then complained of pain every day but not all day. He stated that the knee swelled but did not lock. The Veteran reported buckling, popping, and grinding. The Veteran used a brace but no cane or crutch. The Veteran did not take medication. He was unable to walk more than a mile and unable to stand for more than several hours. He was unable to sit and stand for long periods of time. It was noted that the Veteran was employed as a realtor. The Veteran described flare-ups twice a month for three days, during which he had difficulty walking more than 100 yards and difficulty weightbearing. On examination, the Veteran walked with a normal gait using no assistive device. The right knee showed no instability, tenderness, or warmth. The right knee had marked crepitus. Extension was to 0 degrees and flexion was to 120 degrees with pain on full flexion. No diminution was found with repeat testing. The Veteran had full motor strength. No DeLuca findings were reported. X-ray revealed right knee chondromalacia patella. The Veteran was afforded another VA examination in September 2008. The then Veteran complained of pain in the right knee almost every day, and that he had periods of flare-ups, precipitated by walking. During flare-ups, pain increased three-fold and range of motion became limited by 30 percent. The Veteran did not use crutches or a cane. The Veteran had no episodes of dislocation or recurrent subluxation, and no inflammatory arthritis. On physical examination of the right knee, there was some tenderness on the lateral aspect. There was no effusion or swelling, but there was also tenderness beneath the patella. The Veteran had mild crepitus of the right knee. The right knee was noted to be inappropriately painful on motion. Range of motion testing of the right knee revealed flexion to 130 degrees, with 0 degrees of extension. Medial and lateral collateral ligaments were intact bilaterally. Anterior and posterior cruciate ligaments were intact. Drawer test and Lachman's test were negative bilaterally. Medial and lateral meniscus were intact. McMurray's test was negative bilaterally. X-rays from December 2006 were noted to have no evidence of fracture or dislocation, with no loose bodies or fluid found. The Veteran underwent VA examination in December 2008. The Veteran reported occasionally wearing a knee brace. The Veteran reported daily pain, with no locking and no buckling. The Veteran had some pain with going up and down stairs or bending. No flare-ups or incapacitating episodes were reported. The Veteran had no problems with repetitive use. On physical examination, the Veteran had a normal gait. There was no swelling, cellulitis, or deformities of the right knee. He was able to extend to 0 degrees and flex to 140 degrees. The Veteran had no instability to varus, valgus, anterior, or posterior stressing. Negative McMurray's sign was noted. The Veteran had positive patellar grind test, and positive medial and lateral joint line tenderness. The Veteran had full motor strength with knee flexion and extension. After repetitive motion, there was no additional loss of joint function due to pain, fatigue, or lack of coordination. Another VA examination of the right knee was performed in August 2010. The Veteran then reported occasionally wearing a right knee brace when running or doing physical activity. The Veteran reported daily pain, which had somewhat worsened since the last time he was seen by the physician. The Veteran reported pain going up and down stairs and squatting. There was no interference with his job or with daily activity. He had no problem with repetitive use or incapacitating episodes. The Veteran had no flare-ups, no instability, and no recent injections. The Veteran complained of buckling but denied locking. On physical examination of the right knee, the Veteran had no swelling, and cellulitis, and no deformity. Positive patellar grind test was found. The Veteran had negative medial and lateral joint line tenderness. There was no instability to varus, valgus, anterior, or posterior stressing. McMurray's sign was negative. Motor strength was normal with knee flexion and extension. The Veteran was able to extend to 0 degrees and flex to 130 degrees. He subjectively complained of pain with flexion. After repetitive motion of the right knee, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. Gait was normal and nonantalgic. The Veteran walked 200 feet without any assistance, without any stopping, and without any complaints of pain. The Veteran was diagnosed with right knee patellofemoral syndrome, essentially unchanged since his December 2008 examination. X-rays reflected stable mild osteoarthritis and small joint effusion. In the report of an October 2010 examination of the Veteran, Dr. Bash noted that the Veteran had pain, swelling, and crepitus with popping, grinding, and buckling of the right knee. He noted that the Veteran walked with a limp and had abnormal shoe sole wear due to his abnormal gait. Dr. Bash opined that the Veteran should be assigned a 20 percent rating. During the October 2010 Board hearing, the Veteran testified that he had "somewhat of an altered gait" although his gait had substantially improved since his knee surgery in 1996. Considering the pertinent evidence in light of the applicable legal authority, the Board finds that the Veteran's chondromalacia of the patella of the right knee has not met the criteria for a rating in n excess of 10 percent at any point pertinent to the current claim for increase. As regards instability, the lay and medical evidence has demonstrated no more than slight recurrent subluxation or lateral instability. The Veteran reported buckling in his December 2006 and his August 2010 VA examinations. However, the medical evidence of record indicates neither instability nor subluxation was found on examination in December 2006, September 2008, December 2008, or in August 2010. Given all of this evidence, the Board finds that there has been no more than slight subluxation or lateral instability of the right knee, consistent with the currently assigned 10 percent rating. The Board further finds that a rating greater than 10 percent is not assignable under any other potentially applicable diagnostic code. Specifically, with regard to Diagnostic Codes 5260 and 5261, the evidence shows that the Veteran has had either normal or almost full motion of the right knee, from 0 degrees of extension to 120, 130, or 140 degrees of flexion, on examination, with some pain on flexion. The Veteran has mainly denied flare-ups resulting in decreased motion. In September 2008, however, the Veteran reported periods of flare-ups, at which time his pain increased three-fold and range of motion became limited by 30 percent. Even during flare-ups, there is simply no indication that his pain has been so disabling to even result in flexion limited to 45 degrees, or extension limited to 10 degrees-for which the minimum, 10 percent rating under Diagnostic Codes 55260 and 5261, respectively, is assigned. It follows, then, that the criteria for an even higher rating under either diagnostic code are not met. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis assignment of any higher rating under Diagnostic Code 5260 or 5261. Furthermore, as there is no evidence that the right knee disability involves any ankylosis, dislocated cartilage, impairment of the tibia and fibula, or genu recurvatum, evaluation of the disability under Diagnostic Code 5256, 5258, 5259, 5262, or 5263 is not warranted. The disability also is not shown to involve any other factor(s) that warrant consideration of any other provision(s) of the rating schedule. As a final point, the Board notes that, although it has considered Dr. Bash's assertion that a 20 percent rating for the service-connected right knee disability is warranted, the actual symptoms and extent of functional impairment shown, and not an examiner's assessment of the severity of a disability, are controlling for evaluation purposes. Cf. 38 C.F.R. § 4.126(a) (2010); see also 38 C.F.R. § 4.1 Likewise, although the Board has considered the Veteran's assertions and those advanced by his representative, on his behalf, as noted, the criteria for higher ratings for the disability under consideration require medical findings and/or testing results that are within the province of trained medical professionals. See. e.g. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Hence, the lay assertions are not considered more probative than the actual medical findings shown, which, as indicated in this case, support no more than a 10 percent rating. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's chondromalacia of the patella of the right knee, pursuant to Hart, and that the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for chondromalacia of the patella of the right knee, is denied. REMAND The Board's review of the claims file reveals that further RO action on the claim remaining on appeal is warranted. The Veteran and his attorney contend that the Veteran's low back disability is due to an altered gait associated with his right knee. A review of the claims file reveals that on May 1987 VA examination, the Veteran ambulated with a normal alternating gait. On December 2006 VA examination, the Veteran walked without a limp using no assistive device. In December 2008, VA examination revealed that the Veteran had a normal, nonantalgic gait. The Board also notes that on recent VA examination in August 2010, the Veteran had a normal, nonantalgic gait. He reported that his knee did not interfere with daily activity or his job. He was able to walk 200 feet without any assistance, stopping, or pain. The Veteran was able to extend to 0 degrees and flex to 130 degrees. There were some complaints of pain with flexion. The Veteran had no swelling, no cellulitis, no deformity, negative medial and lateral joint line tenderness, no instability, negative McMurray sign, with a positive patellar grind test. X-rays reflected stable mild osteoarthritis and small joint effusion. The Veteran also reported that he used a knee brace while running, reflecting that the Veteran was able to run. Two months later, the Veteran was seen by Dr. Craig N. Bash. Dr. Bash reported that the Veteran walked with a limp and had abnormal shoe sole wear due to his abnormal gait. At the October 2010 Board hearing, the Veteran reported a somewhat altered gait, which substantially improved since his knee surgery in 1996. The Veteran has several conflicting opinions of record and conflicting evidence regarding the etiology of his low back disability. In December 2008, a VA examining physician found that the Veteran's lumbar spine disability was not caused by his right knee condition. This was based on the fact that the Veteran did not have an altered gait, and isolated right knee pain would not cause a lower back abnormality without a dramatic change in his gait. In October 2010, Dr. Bash opined that the Veteran's back was originally injured in the in-service accident, but he failed to discuss the Veteran's service treatment records which reflected no complaints of a back injury or pain. He also failed to discuss the Veteran's statements that his back pain began only recently. Alternatively, Dr. Bash opined that the Veteran suffered from several years with an abnormal gait, which caused the Veteran's back disability. Dr. Bash, however, did not address the multiple examinations from May 1987 through August 2010 that collectively found that the Veteran had no altered gait. A December 2010 chiropractor found that the Veteran had an altered gait "while attempting to run," and found that his back disability was secondary to his service-connected right knee disability. He noted that altered gait can cause strain on the lower lumbar spine. The record reflects that the Veteran had knee surgery in 1996 and back surgery in 2007. The Veteran has asserted that the records from his knee surgery are unavailable. The Veteran has also only submitted one page of records from his back surgery, which essentially gives no history regarding the Veteran's back, and only provides pre-surgical and post-surgical diagnoses. The Board finds that these private records are imperative to the Veteran's claim, and an attempt to obtain them should be made. Under these circumstances, and to ensure that the record includes sufficient medical findings to adequately assess the etiology of the Veteran's low back disability, the Board finds that the Veteran should be given another opportunity to undergo a new examination, with an opinion. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(b) (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The record reflects that the Veteran has been receiving treatment at the VA Medical Center (VAMC) in East Orange, New Jersey. While the claims file currently includes treatment records dated to June 10, 2010, more recent treatment records may now be available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the East Orange VAMC any records of treatment, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should also request that the Veteran identify or provide all relevant private treatment records concerning his 2007 back surgery. Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. In adjudicating the claim, the RO should particularly consider all evidence added to the claims file since the RO last adjudicated the claim, to include, for the sake of efficiency, that submitted to the Board in December 2010, notwithstanding the waiver of initial RO consideration of the evidence, as well as that submitted in October 2010 without a waiver of initial RO consideration of that evidence. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the East Orange VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran, since June 10, 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should specifically request that the Veteran submit private treatment records pertinent to his back surgery, or provide written authorization to obtain such records. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability/ies affecting the low back. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service (to include the Veteran's in-service accident). If not, also with respect to each diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability was caused or has been aggravated (i.e., permanently worsened beyond the natural progression of the disability by the Veteran's service-connected chondromalacia of the patella of the right knee. In rendering the requested opinion, the physician should specifically consider the in- and post-service treatment records, to include private nexus opinions, as well as the Veteran's contentions. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection low back disability, to include as secondary to service-connected chondromalacia of the patella of the right knee, in light of all pertinent evidence (to particularly include all evidence added to the record since the RO's last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2010). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs