Citation Nr: 1114736 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 07-18 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for the residuals of a fracture to the L1 and L2 vertebra with traumatic arthritis of the lumbar segment of the spine, currently rated as 40 percent disabling. 2. Entitlement to an evaluation in excess of 10 percent for a right hip disability, on appeal from an initial grant of service connection. 3. Entitlement to an increased evaluation for a right knee disability, rated as 10 percent disabling prior to March 3, 2009. 4. Entitlement to an increased evaluation for a right knee disability, rated as 30 percent disabling after April 30, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran has verified active military service from February 1973 to May 1982, and his DD214 for this period of service shows he had thirteen years, two months, twenty-five days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2009, a hearing was held before the undersigned Veterans Law Judge who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). A copy of the transcript of that hearing is of record. Following the hearing, the Veteran submitted additional evidence, with a waiver of RO jurisdiction. See 38 C.F.R. § 20.1304(c). Accordingly, the Board may consider the evidence in the first instance. The Board would note that when the claim originally appeared before it following the hearing, the issues that were on appeal were as follows: 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bladder cancer and prostate cancer. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a disability rating in excess of 40 percent for the residuals of fracture to the L1 and L2 vertebra with traumatic arthritis of the lumbar spine. 4. Entitlement to a disability rating in excess of 10 percent for arthritis of the right hip. 5. Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee. Following a review of the claim, the Board then issued a Decision/Remand in April 2009. In that action, the Board denied the Veteran's claim to reopen previously denied service claims involving bladder and prostate cancers but granted service connection for bilateral hearing loss. The three remaining issues were then remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of obtaining additional information. The record reflects that around the same time that the Board issued its Decision/Remand, the Veteran underwent a right total knee arthroplasty. Because of this surgery, the Veteran was assigned a temporary total rating for the period extending from March 3, 2009, to April 30, 2010. After April 30, 2010, a 30 percent disability rating was assigned for his right knee disorder. As a result of this procedure, and since the Veteran has not withdrawn his appeal with respect to the right knee, the Board has bifurcated the issue to more adequately reflect the items that are now on appeal. The issues of entitlement to increased disability ratings for the Veteran's service-connected right knee disability, right hip disorder, and the disability of the lumbar segment of the spine are once again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND As noted above, in April 2009, the Board remanded the issues that are reported on the front page of this action. The purpose of the remand was to obtain additional medical evidence which the Board believed necessary prior to the issuance of a decision on the Veteran's claim. The record reflects that the Veteran underwent VA examinations in June 2009 and September 2010. Following the examinations, the record indicates that the AMC issued a rating action and a supplemental statement of the case (SSOC). This was accomplished in January 2011. However, a further examination of these documents reveals that the AMC only addressed the Veteran's claim for an increased rating for the right knee disability. Neither the rating action nor the SSOC discussed the remaining two issues - those involving the right hip and the lower back. In other words, even though additional pertinent evidence was obtained with respect to the hip and back, the AMC failed to adjudicate whether the evidence supported the Veteran's assertions that higher ratings should be assigned for the two disabilities. Under 38 C.F.R. § 19.31 (2010), a SSOC must be furnished to the claimant when additional pertinent evidence is received after a Statement of the Case (SOC) or the most recent SSOC has been issued. See also 38 U.S.C.A. § 7105 (West 2002). As these requirements have not been satisfied, a remand is required in order to ensure due process to the appellant. In other words, since an adequate SSOC that addresses all of the issues now on appeal has not been provided to the Veteran, the claim must be returned to the AMC/RO so that such a document may be issued to the Veteran (and his accredited representative). Additionally, a review of the evidence obtained over the course of this appeal with respect to the Veteran's lower back disability insinuates that the Veteran may be suffering from radiculopathy extending into the lower extremities. For example, the examination report from September 2010 noted that the Veteran might be suffering from radiculopathies and/or peripheral neuropathies. However, the evidence does not clearly show whether the Veteran has such a condition and, if so, whether the condition was associated with the lower back disorder, the service-connected right hip disability, or a nonservice-connected disorder/disability. Because there is a lack of clarity in the record, the Board believes that the claim must once again be returned to the AMC/RO so that additional medical testing may be accomplished. Finally, with respect to the right knee disability, as previously indicated, in March 2009 the Veteran underwent a right total knee arthroplasty. A temporary total rating for this operation was in effect until April 30, 2010. Unfortunately, while there was an examination of the right knee accomplished in January 2010, no additional examinations were performed, or are of record, after that date. In other words, at the present time, the Board does not have a sufficient record that would indicate the current severity of the Veteran's service-connected right knee disorder. Hence, the claim will also be returned to the AMC so that another examination of the knee may be accomplished. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request VA medical records pertaining to the veteran that date from July 2009. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the AMC/RO for the following development: 1. The AMC/RO should request that the Veteran provide any additional relevant medical records that are not already of record or sufficient information that would allow the AMC/RO to request the records. Then, contact the named health care providers, provided that the Veteran has provided the signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. All other records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the AMC/RO should inform the Veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2010). 2. Associate with the claims folder VA medical records pertaining to the Veteran that date from July 2009. If there are no such records, ensure that this is noted in the claims folder. 3. The RO/AMC should schedule the Veteran for an examination with respect to his lumbar spine, right knee, and right hip disability. Right Knee: The RO/AMC should request that the examiner provide information concerning diagnoses and all current symptoms and manifestations produced by the right knee disability, and provide a complete rationale for all conclusions reached. The examiner must specifically note that he or she has reviewed the entire claims folder. The examiner should describe degrees of range of motion and any limitation of function of the parts affected by limitation of motion. Comments should be further provided with respect to whether there is weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost. The examiner should also be asked to express an opinion as to the degree to which pain limits functional ability during flare-ups or on use. Finally, the examiner should describe any residual scar and muscle damage that may be classified as the residuals of the right total knee arthroplasty. Moreover, the examiner must describe whether any found scars are tender, painful, poorly nourished, ulcerated, superficial, and whether the scars have produced limitation of function. The size of the scars should also be given. Right hip: The RO/AMC should request that the examiner provide information concerning the diagnoses and all current symptoms and manifestations produced by the right hip disability, and provide a complete rationale for all conclusions reached. The examiner must specifically note that he or she has reviewed the entire claims folder. With respect to the examination, it is requested that the Veteran be examined for degrees of range of motion and any limitation of function of the parts affected by limitation of motion. The examiner should determine whether the hip exhibits weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost. The examiner should also be asked to express an opinion as to the degree to which pain limits functional ability during flare-ups or on use. Lumbar spine: The RO/AMC should request that the examiner provide information concerning the diagnoses and all current symptoms and manifestations produced by the disability, and provide a complete rationale for all conclusions reached. The examiner must specifically note that he or she has reviewed the entire claims folder. With respect to the examination, it is requested that the Veteran be examined for degrees of range of motion and any limitation of function of the parts affected by limitation of motion. The examiner should determine whether the lower back exhibits weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost. The examiner should also be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or on use. The examiner should indicate whether there is any ankylosis and if so whether it is favourable or unfavourable. Neurological: Additionally, the examiner should describe any neurological deficits associated with the lower back disability. If radiculopathy or another associated neurological abnormality is found, the examiner should indicate whether the condition is mild, moderate, severe or whether there is complete paralysis. In responding to the foregoing inquiry, the examiner should specifically describe the related impairment of motor function, trophic changes, and sensory disturbance within the meaning of 38 C.F.R. § 4.120 (2010). A complete rationale for any opinion expressed should be included in the examination report. The claims folder and this Remand must be made available to the examiner for review before the examination. 4. The AMC/RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examination. If the requested reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC/RO should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Veteran need take no action unless otherwise notified. The purpose of the examinations requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2010) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ S. S. TOTH 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).