Citation Nr: 1120044	
Decision Date: 05/24/11    Archive Date: 06/06/11

DOCKET NO.  08-01 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to an initial compensable rating for service-connected right ear hearing loss.

2.  Entitlement to an initial rating in excess of 10 percent for service-connected low back disorder.

3.  Entitlement to service connection for left ear hearing loss.

4.  Entitlement to service connection for a left knee disorder.

5.  Entitlement to service connection for a left wrist disorder.

6.  Entitlement to service connection for a right wrist disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from September 1981 to April 2005.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, and a June 2008 rating decision by the RO in Waco, Texas.  The June 2008 rating decision denied his bilateral wrist claims, while all other appellate claims were addressed in the July 2005 rating decision.

The Albuquerque RO currently has jurisdiction over the Veteran's VA claims folder.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2011.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's left knee and low back claims.  Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  All reasonable notification and development necessary for the equitable disposition of the issue(s) adjudicated by this decision have been completed.

2. On February 1, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal on the issue of entitlement to a compensable rating for service-connected right ear hearing loss is requested.

3.  The competent medical evidence reflects the Veteran has a current hearing loss disability of the left ear as defined by VA regulations, and that it was incurred during active service.

4.  The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current bilateral wrist disabilities were incurred in or otherwise the result of his active service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran on the issue of entitlement to a compensable rating for service-connected right ear hearing loss have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2010); 38 C.F.R. § 20.204 (2010).

2.  Service connection is warranted for left ear hearing loss.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2010).

3.  A left wrist disorder was not incurred in or aggravated by the Veteran's active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010).

4.  A right wrist disorder was not incurred in or aggravated by the Veteran's active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

Initially, the Board notes that the Veteran has withdrawn his appeal regarding the issue of entitlement to a compensable rating for service-connected right ear hearing loss.  Accordingly, no discussion of the VCAA is warranted with respect to this claim.  

The Board also notes that, for the reasons detailed below, it finds that service connection is warranted for left ear hearing loss.  Consequently, no further discussion of the VCAA is warranted for this claim because any deficiency has been rendered moot.

Regarding the other appellate claims, the United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via letters dated in January and May 2005, both of which were clearly sent prior to the July 2005 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in August 2005 and March 2006, followed by readjudication of the appeal by the October 2007 Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  In addition, he was sent pre-adjudication notice in regard to the June 2008 rating decision via an October 2007 letter.

Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the March 2006 and October 2007 letters included the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.   The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied other than his low back and left knee claims.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the February 2011 Board hearing.  Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested.  Specifically, he has not identified any competent medical evidence which link his current wrist disabilities to his active service.  Moreover, as detailed below, he was accorded VA medical examinations regarding this case in March 2005, April 2005, and May 2006.  These examinations made competent medical findings in light of the Veteran's complaints, and no inaccuracies or prejudice is demonstrated therein.  As detailed below, the Board finds that the medical evidence of record to include these examinations is adequate for resolution of the appellate claims adjudicated by this decision.  Accordingly, the Board finds that these examinations are adequate for resolution of this case.  

With respect to the aforementioned February 2011 Board hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims.  However, as detailed above the Board has already determined that the Veteran received adequate notification which apprised him of the elements necessary to substantiate his claim(s).  Moreover, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim(s); i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim(s).  The VLJ did ask questions to determine if all relevant evidence was of record.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  




General Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Right Ear Hearing Loss

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In the present case, the Veteran has withdrawn his appeal on the issue of entitlement to a compensable rating for service-connected right ear hearing loss.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this claim.  Accordingly, the Board does not have jurisdiction to review this appellate claim, and it is dismissed.

Left Ear Hearing Loss

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.  

The Board notes that the RO, in essence, denied service connection for hearing loss of the Veteran's left ear because he did not have a hearing loss disability as defined by 38 C.F.R. § 3.385.

The Board acknowledges that a March 2005 VA audio examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
Average
RIGHT
55
50
25
20
35
30
LEFT
35
35
10
10
20
18.75

Speech recognition scores were 98 percent for both ears.  Granted, these findings do not show a hearing loss disability of the left ear as defined by 38 C.F.R. § 3.385.  

The Board notes, however, that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication.

In this case, there is competent evidence of a left ear hearing loss disability in the form of a March 2005 private audiogram.  Although this audiogram does not indicate a hearing loss disability of the left ear in terms of pure tone threshold results, it does show the left ear had a speech recognition score of 92 percent, which does constitute a disability as defined by 38 C.F.R. § 3.385 as it is less than 94 percent.  The Board also notes that this is consistent with the fact that the March 2005 VA examination, as well as various service examinations, reflect evidence of hearing loss in the left ear pursuant to Hensley, supra.

The Board also wishes to reiterate that, in Gilbert, supra, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  See also 38 C.F.R. § 3.102.

Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for left ear hearing loss.

Wrists

In this case, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current bilateral wrist disabilities were incurred in or otherwise the result of his active service.

Initially, the Board acknowledges that the competent medical evidence reflects the Veteran currently has carpal tunnel syndrome of both wrists, to include a May 2006 VA medical examination.  However, a thorough review of his service treatment records contain no findings of carpal tunnel syndrome nor any other wrist disability.  Further, on a January 2005 Report of Medical Assessment, the Veteran identified various medical conditions but did not indicate any disability regarding his wrists.  There was also no indication of any wrist problems at the time of the April 2005 VA general medical examination.  In fact, the first competent medical evidence of wrist disabilities appears to be records dated in May 2006, slightly more than one year after his separation from service.  Moreover, the Veteran himself testified at his February 2011 hearing that he first developed wrist problems in April 2006, which is after his separation from active service.  See Transcript pp. 15, 17-18.

The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for year(s) after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability).  

The Board acknowledges that the Veteran indicated at his hearing that the carpal tunnel syndrome was due to the 15 years of typing he did as part of his administrative duties in the military.  See Transcript p. 14.  However, he also acknowledged that his current occupation requires a lot of typing as well.  See Transcript p. 19.  Further, the impact such activity has upon the body, including the wrists, is not something subject to lay observation; a lay person can describe visible symptomatology, and whether an injury occurred, but cannot relate whether a certain activity which did not result in an injury caused or permanently aggravated another.  This is particularly true in a case such as this where the Veteran himself acknowledged no wrist problems until almost a year following his separation from service.  Such a relationship is of the type that competent medical evidence is required, and nothing in the record indicates the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  See 38 C.F.R. § 3.159(a)(1).

In addition, no competent medical opinion is of record which relates either of the current wrist disabilities to active service.  Moreover, the Board concludes that no development on this matter is warranted in this case.  In the absence of any relevant complaint or clinical finding for a clinician to link the claimed wrist disabilities to the Veteran's military service, any medical nexus opinion would not be supported by what actually occurred in service.  The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value.  See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence).  

The Board also acknowledges that, in denying the claim below, it was noted that the disability was not present within the first post-service year.  As such, it reflects the presumptive provisions of 38 C.F.R. §§ 3.307, and 3.309(a) which allow for the establishment of service connection for certain chronic diseases that are present to a compensable degree within the first post-service year.  These chronic diseases include arthritis and neuritis, but do not specifically include carpal tunnel syndrome.  Therefore, it does not appear these presumptive provisions are applicable in this case, nor are any of the other presumptive provisions detailed in the VA regulations.  Even if carpal tunnel syndrome were recognized as a chronic disease under 38 C.F.R. § 3.309(a), the Veteran would still not be entitled a grant of service connection based on these presumptive provisions.  See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.).  Although the Veteran testified that his problems developed in April 2006, within the first post-service year, there is no competent medical evidence indicating any problems were present to a compensable degree until at least May 2006, more than one year after service.

Finally, the Board notes that the Veteran has not indicated his current wrist disabilities are secondary to an already service-connected disability(ies) which would warrant consideration of 38 C.F.R. § 3.310, nor any other basis to establish service connection for these disabilities.

In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for disabilities of both wrists.  As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to these claims must be denied.


ORDER

The appeal on the issue of entitlement to a compensable rating for service-connected right ear hearing loss is dismissed.

Entitlement to service connection for left ear hearing loss is granted.

Entitlement to service connection for a left wrist disorder is denied.

Entitlement to service connection for a right wrist disorder is denied.


REMAND

The Board finds that the further development is required with respect to the Veteran's low back and left knee claims in order to comply with the duty to assist.

Initially, the Board notes that the Veteran testified at his February 2011 hearing that he was currently receiving physical therapy for his service-connected low back disorder.  See Transcript pp. 3-4.  No such records appear to be on file, and this testimony reflects they contain relevant findings as to the current severity of this service-connected disabilities.  Therefore, a remand is required in order to obtain these records.

The Board further notes that the April 2005 VA general medical examination did include findings as to the symptomatology of the Veteran's low back.  However, it has been more than 6 years since that examination, and the Board is concerned the evidence of record may not accurately reflect the current nature and severity of this service-connected disability.  Moreover, the Veteran testified at his February 2011 hearing that the disability had gotten worse since the last VA medical examination.  See Transcript pp. 21-22.

VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Consequently, the Board concludes that a contemporaneous VA examination is needed in order to make an informed decision regarding the Veteran's current level of functional impairment of his low back and adequately evaluate his current level of disability.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

With respect to the Veteran's left knee claim, the Board observes that his service treatment records confirm he was treated for left knee pain in October 1983, while on active duty.  Further, as part of his January 2005 Report of Medical Assessment, he indicated that his left knee would give during exercising/excessive workload.  He also reported at the April 2003 VA general medical examination that in 1983, while walking, his left knee suddenly gave away and caused him to fall; and that he had had instability of the left knee off and on since that injury.  The examiner also diagnosed left knee injury, residual internal derangement.  However, no instability or limitation of motion was actually demonstrated on physical examination.  Moreover, X-rays of the left knee were normal.  The only competent medical finding regarding the left knee appears to have been the Veteran's complaints of pain, but the Court had held that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  Nevertheless, the Veteran did indicate at his February 2011 hearing that he continued to have recurrent left knee problems.

In view of the foregoing, the Board finds that it is not clear from the competent medical evidence of record whether the Veteran does in fact have a current left knee disability, and, if so, whether it was incurred during his active military service.  Therefore, an examination is also necessary to address this claim.  See Colvin, supra.

Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his low back and left knee since April 2005.  After securing any necessary release, the AMC/RO should obtain those records not on file.

2.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination regarding his low back and left knee claims.  The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.

Regarding the service-connected low back disorder, the examiner must evaluate the current nature and severity of this disability.  It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  Such comments should include whether there is additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc.

With respect to the left knee, the examiner must determine if the Veteran currently has a chronic disability thereof.  If so, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that such disability was incurred in or otherwise the result of the Veteran's active service.

A complete rationale for any opinion expressed on this examination must be provided.

3.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

4.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review.  

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in April 2010, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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. 2009).




______________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs