Citation Nr: 1116154 Decision Date: 04/26/11 Archive Date: 05/05/11 DOCKET NO. 08-11 525 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas THE ISSUES 1. Entitlement to an increase in 10 percent rating for a right knee disability, to include whether the severance of a separate 10 percent rating for chondromalacia and osteoarthritis of the right knee was appropriate, for the period prior to April 24, 2008. 2. Entitlement to an increase in a 30 percent rating for a right knee disability, to include whether the severance of a separate 10 percent rating for chondromalacia and osteoarthritis of the right knee was appropriate, for the period since June 1, 2009. 3. Entitlement to an increase in a 10 percent rating for a left knee disability, to include whether the severance of a separate 20 percent rating for chondromalacia of the left knee with degenerative joint disease was appropriate. 4. Entitlement to an initial rating higher than 20 percent for a low back disability. 5. Entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from June 1972 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an May 2007 rating decision of the North Little Rock, Arkansas Regional Office (RO) that granted service connection and a 10 percent rating for a low back disability (chronic lumbar sprain), effective October 26, 2006. By this decision, the RO also denied an increase in a 10 percent rating for chondromalacia and osteoarthritis of the right knee; denied an increase in a 10 percent rating for limitation of flexion of the right knee; denied an increase in a 20 percent rating for chondromalacia of the left knee with degenerative joint disease; and denied an increase in a 10 percent rating for limitation of flexion of the left knee. An October 2007 RO decision granted service connection and a 20 percent rating for radiculopathy of the left lower extremity, effective October 26, 2006. By this decision, the RO also increased the rating for the Veteran's service-connected low back disability to 20 percent, effective October 26, 2006. Since those grants do not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the October 2007 RO decision also severed service connection for chondromalacia and osteoarthritis of the right knee (then rated at 10 percent), effective October 26, 2006, and severed service connection for chondromalacia of the left knee with degenerative joint disease (then rated at 20 percent), effective October 26, 2006. An April 2009 RO decision assigned a temporary total convalescent rating (38 C.F.R. § 4.30) for the Veteran's service-connected right knee disability (re-characterized as postoperative residuals of an arthroplasty of the right knee), for the period from April 24, 2008 to May 31, 2009. The RO also increased the rating for the Veteran's service-connected right knee disability (re-characterized as postoperative residuals of an arthroplasty of the right knee) to 30 percent, effective June 1, 2009. Since those grants do not represent a total grant of benefits sought on appeal, the claims for increase, as to the Veteran's service-connected right knee disability, remain before the Board. See AB, supra. The appeal was later transferred to the Wichita, Kansas Regional Office (RO). A March 2010 RO rating decision assigned a temporary total convalescent rating (38 C.F.R. § 4.30) for the Veteran's service-connected low back disability for the period from January 22, 2009 to April 30, 2009. The RO also determined that a clear and unmistakable error (CUE) was made in assigning a 30 percent rating for the Veteran's service-connected right knee disability (re-characterized as postoperative residuals of an arthroplasty of the right knee), and a reduction of the disability rating from 30 percent to 10 percent, effective June 1, 2008, was proposed. In a March 2010 statement, the Veteran raised an issue as to whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disorder, as well as an issue of entitlement to service connection for erectile dysfunction. Those issues are not before the Board at this time and are referred to the RO for appropriate action. 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 finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Veteran was last afforded a VA orthopedic examination in March 2008. The diagnoses were chronic lumbar sprain with degenerative arthritis and degenerative disc disease; chondromalacia of the left knee with degenerative changes and limitation of flexion; and chondromalacia and osteoarthritis of the right knee with limitation of flexion and a magnetic resonance imaging (MRI) study showing a tear of the posterior horn of the medial meniscus. The Veteran was also afforded a prior VA peripheral nerves examination in October 2007. The final impression, at that time, included lumbosacral degenerative disc disease with radiculopathy to the left leg and mild intermittent numbness to the fingers of unknown etiology. The Board observes that the Veteran has received treatment for right knee, low back, and left lower extremity problems subsequent to the March 2008 VA orthopedic examination report and the October 2007 VA peripheral nerves examination report. For example, an April 2008 VA operative report noted that the Veteran underwent a right knee scope and meniscectomy. The postoperative diagnosis was right knee medial meniscal tear. An October 2008 operative summary from Minimally Invasive Spine Medicine indicated that the Veteran underwent a L4/L5 selective nerve root block/transforaminal injection, fluoroscopic direction, and conscious sedation. The post-operative diagnosis was radiculitis of the left lower limb. A November 2008 VA operative note reported that the Veteran underwent a left L5 thoracic epidural steroid injection. The diagnosis was lumbar disc disease. A January 2009 VA operative report noted that the Veteran underwent a minimally invasive microsurgical technique with a decompressive L4-L5 laminotomy/foraminotomy. A February 2009 VA neurosurgery note indicated that the Veteran underwent a minimally invasive microsurgical decompressive left L4-L5 laminotomy and foraminotomy in January 2009. The assessment included status post decompressive left L4-L5 laminotomy and foraminotomy in January 2009. Additionally, at the August 2010 hearing on appeal, the Veteran specifically testified that his right knee and left knee disabilities had worsened. The Veteran also reported that he had undergone low back surgery in January 2009 and that his low back had worsened since the surgery. The Board observes that the Veteran has not been afforded VA examinations, as to his service-connected right and left knee disabilities, as well as concerning his service-connected low back disability and radiculopathy of the left lower extremity, in more than three years. Additionally, the record clearly raises a question as to the current severity of the Veteran's service-connected right knee disability, left knee disability, low back disability, and radiculopathy of the left lower extremity. Therefore, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); See also Stegall v. West, 11 Vet. App. 268 (1998). Prior to the examinations, any outstanding records of pertinent treatment should be obtained and added to the record. Finally, the Board notes that subsequent to the issuance of an October 2007 statement of the case, additional medical evidence (including numerous private and VA treatment records), was apparently never considered by the RO as to the Veteran's claims for higher ratings. The Veteran has not specifically submitted a waiver with regard to initial RO consideration of all of these records in relation to his claims. In an August 2010 statement, the Veteran indicated that he was waiving RO consideration of the additional evidence and records he was submitting at the time of the August 2010 Board hearing. Thus, the case will be also be remanded to allow for initial consideration of the evidence and for a supplemental statement of the case. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for right knee, left knee, and low back problems, as well as radiculopathy of his left lower extremity, since July 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since July 2010 should be obtained. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected low back disability and radiculopathy of the left lower extremity. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected low back disability and radiculopathy of the left lower extremity should be described in detail. Any opinion provided should be supported by a full rationale. The examiner should specifically: a) Provide the range of motion of the lumbar spine (extension, forward flexion, left and right lateral flexion and left and right rotation), expressed in degrees, as well as state whether there is any favorable or unfavorable ankylosis of the lumbar spine. b) Determine whether the lumbar spine exhibits weakened movement, excess fatigability, incoordination pain or flare-ups attributable to the service connected low back disability. These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. For example, the examiner should report the point in the range of motion when pain becomes apparent. c) Identify any associated neurological deformities associated with the service-connected low back disability, to specifically include the Veteran's service-connected radiculopathy of the left lower extremity. The severity of each neurological sign and symptom, to include the Veteran's service-connected radiculopathy of the left lower extremity, should be reported. In this regard, the examiner should address the Veteran's complaints of weakness and radiating pain in the lower extremities. If a separate neurological examination is needed one should be scheduled. d) List all neurological impairment caused by the service-connected low back disability and radiculopathy of the left lower extremity. Provide an opinion as to whether any neurological symptomatology (to specifically include the radiculopathy of the left lower extremity) equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. Identify any affected nerve, and state the severity of the impairment of the nerve affected. e) State whether the Veteran has intervertebral disc syndrome of the lumbar spine. If so, state whether any such intervertebral disc syndrome results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months should be reported. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. f) State whether pain could significantly limit functional ability of the lumbar spine during flare-ups or when lumbar spine is used repeatedly over a period of time. Those determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. In determining whether there is additional limitation of function with repetitive use, the examiner should specifically consider the statements of the Veteran regarding his functional capacity, and the frequency of flare ups. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the service treatment records to provide a negative opinion). 3. Schedule the Veteran for a VA examination to determine the severity of his service-connected right knee disability and left knee disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected right knee and left knee disabilities should be described in detail. Specifically, the examiner should conduct a thorough orthopedic examination of the Veteran's right knee and left disabilities and provide a diagnosis of any pathology found. In examining the right knee and left knee disabilities, the examiner should document any limitation of motion (in degrees) of the Veteran's right knee and left knee, to include providing the point at which painful motion begins. The examiner should also indicate whether there is any guarding on motion and the degrees at which the guarding starts. The examination should further comment as to whether (and if so, to what extent, (i.e. slight, moderate, or severe)) the right knee and left knee disabilities include recurrent subluxation or lateral instability. The examiner should be asked to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the right knee and left knee are used repeatedly over a period of time. The examiner should also be asked to determine whether the joints exhibit weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner should so state. 4. Thereafter, review the Veteran's claims for entitlement to an increase in a 10 percent rating for a right knee disability, to include whether the severance of a separate 10 percent rating for chondromalacia and osteoarthritis of the right knee was appropriate for the period prior to April 24, 2008; entitlement to an increase in a 30 percent rating for a right knee disability, to include whether the severance of a separate 10 percent rating for chondromalacia and osteoarthritis of the right knee was appropriate, for the period since June 1, 2009; entitlement to an increase in a 10 percent rating for a left knee disability, to include whether the severance of a separate 20 percent rating for chondromalacia of the left knee with degenerative joint disease was appropriate; entitlement to an initial rating higher than 20 percent for a low back disability; and entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity. If the claims are denied, issue a supplemental statement of the case, which takes into account all evidence submitted since the last statement of the case (including nay evidence submitted directly to the Board), to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the appellant with the development of his claims. 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). 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 examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). _________________________________________________ JOHN Z. JONES Acting 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).