Citation Nr: 1134868 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 07-03 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected osteoarthritis and chondromalacia of the left knee. 2. Entitlement to an evaluation in excess of 10 percent for service-connected osteoarthritis and chondromalacia of the right knee. 3. Entitlement to service connection for a back disability, also referred to as discogenic disease of the spine with radiation, to include as secondary to the Veteran's service-connected knee disabilities. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2005 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was afforded a Travel Board hearing in May 2011. A transcript has been associated with his claims folder. 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 Osteoarthritis and Chondromalacia of the Right and Left Knees For the sake of efficiency, the evidence in relation to the right and left knees will be discussed together; however, they are separately service connected and rated accordingly. The Veteran contends that he is entitled to a rating in excess of 10 percent each for his service-connected left and right knee disabilities. The Veteran was most recently afforded a VA examination for his knees in February 2010, and a Travel Board hearing in May 2011. The VA examiner noted that the Veteran used a walker, but the Veteran did not wear a brace for his knees, and there was no mention of a cane. In contrast, at the hearing, the Veteran reported that he wore knee braces, and it was observed that he used a walker, and then a cane, to ambulate to his seat. The VA examiner noted that the Veteran used Hydrocodone to control his pain. At his hearing, the Veteran indicated additional use of pain medications, to include Vicodin and Acetaminophen. VA treatment records show that the Veteran's left knee was consistently described as worse than his right knee; however, the February 2010 VA examination results include a radiographic report of the Veteran's right knee, but not his left knee. At his examination, the Veteran reported instability of his knees; however, the examiner did not observe instability. At his hearing, the Veteran emphasized his experiences with instability and difficulty walking. At the May 2011 hearing, the Veteran's representative requested that the Veteran be re-examined, and suggested that the earlier examination was inadequate. Specifically, according to the Veteran, no device was used to measure his range of motion, and no measurements to account for atrophy were taken. The Veteran's representative requested accurate measurement pursuant to 38 C.F.R. § 4.46, wherein the use of a goniometer in the measurement of limitation of motion is indispensable. In light of the above, the Veteran's symptomatology has worsened, and remand is necessary for another VA examination to assess the current nature and severity of his osteoarthritis and chondromalacia of the left and right knees. See e.g. Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (when a veteran claims that a disability is worse than when originally rated, and the available evidence is insufficient to adequately evaluate the current state of the condition, VA must provide a new examination). TDIU The Veteran has explained that he has not worked since 2004. Social Security Administration records show that he is considered 100 percent disabled based on medical evidence pertaining to his knees and back problems. The Veteran has indicated his belief that he is unable to work because of his service-connected knee disabilities, as well as his back disability for which he seeks service-connection. The question of entitlement to a TDIU is raised by the record. Although this issue is part of the increased rating issue, it has not been considered by the RO, and the Veteran has not been advised of the regulatory requirements for this benefit. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Back Disability The Veteran has contended that his discogenic disease of the spine, with radiation, should be service connected, to include as secondary to his service-connected osteoarthritis and chondromalacia of the left and right knees. The Board observes that the Veteran has variously been assessed as having severe spondylosis of the lumbosacral spine, degenerative disc disease, chronic back strain, multilevel severe discogenic disease, osteophytosis, degenerative dextroscoliosis, and sciatica. As such, his claim for service connection is broadly construed as for any back disability. He was afforded a VA examination in March 2008 wherein the opinion provided that the Veteran's lumbar spine disability was medically determined to be less likely as not caused by or a result of service-connected bilateral knee disability. Unfortunately, the examiner did not address whether the Veteran's service-connected osteoarthritis and chondromalacia of the left and right knees aggravated his low back disability, or whether his back disability was caused by or incurred in service. VA has a duty to ensure that any examination or VA opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because no opinion has been provided as to whether it is at least as likely as not that the Veteran's back disability was aggravated by his service-connected osteoarthritis and chondromalacia of the left and right knees, or whether his back disability was caused by or incurred in service, there is insufficient medical evidence upon which to render a decision. As such, this claim is remanded for a medical opinion to determine whether the Veteran's back disability was due to, or the result of service, or otherwise caused or aggravated by his service-connected knee disabilities. This examination is required pursuant to 38 C.F.R. § 3.159(c)(4). At his hearing, the Veteran indicated that he has ongoing VA treatment, to include prescription usage as well as physical therapy for his knees and his back. A review of the claims folder indicates that the most recent VA treatment records associated with the record are dated in 2007. As such, to ensure the record on appeal is complete, outstanding VA treatment records should be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(2). The Board also observes that the Veteran's social security records were submitted on two compact discs, and some of the documents were printed. It appears, however, that not all of the social security records were printed, and there is no transcript of the audio portions of the discs. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2010), 38 C.F.R. § 3.159 (2010), and applicable legal precedent. 2. Obtain available outstanding VA treatment records, especially those pertaining to the Veteran's knees and back, and associate them with the claims folder. If no such records are available, formal findings are required that either the records sought do not exist, or that further efforts to obtain those records would be futile. 3. Contact SSA and request records corresponding to the appellant's application for disability benefits. 4. Then, schedule the Veteran for a VA examination for the purposes of clarifying the severity of his service- connected bilateral knee disabilities. The claims folder must be provided to the examiner for review in connection with the examination. After examining the Veteran and the results of any diagnostic testing deemed necessary, to include the goniometer, if appropriate, the examiner should specifically delineate all symptomatology associated with the Veteran's service-connected right and left knee disabilities, including any loss of motion or instability. The examiner should also comment on any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A complete rationale for any opinions expressed should be given. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disability. The Veteran's claims folder should be made available to the examiner for review. The examiner should render an opinion as to whether it is at least as likely as not that any current back disability was incurred in service or was caused or worsened by the service-connected knee disabilities. If the Veteran has a low back disability that was aggravated by his service-connected knee disabilities, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the back disability before the onset of aggravation. 6. After conducting any additional development deemed necessary, readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the Veteran 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, if in order. 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 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). _________________________________________________ James L. March 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) (2010).