Citation Nr: 1237004	
Decision Date: 10/25/12    Archive Date: 11/08/12

DOCKET NO.  10-07 235	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for a service-connected left knee disability, for the period prior to June 4, 2003.

2.  Entitlement to an initial evaluation in excess of 10 percent for a service-connected left knee disability, for the period of September 1, 2003, to July 30, 2008.

3.  Entitlement to an initial evaluation in excess of 10 percent for a service-connected left knee disability, for the period of October 1, 2008, to February 26, 2009.

4.  Entitlement to an initial evaluation in excess of 20 percent for a service-connected left knee disability, for the period since February 26, 2009.

5.  Entitlement to an initial evaluation in excess of 10 percent for a service-connected right knee disability, for the periods prior to August 15, 2003, and since November 1, 2003.

6.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include as secondary to the service-connected knee disabilities.

7.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for a low back disability, to include as secondary to the service-connected knee disabilities.

8.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right ankle disability, to include as secondary to the service-connected knee disabilities.

9.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for a left ankle disability, to include as secondary to the service-connected knee disabilities.

10.  Entitlement to service connection for a cervical spine disability.

11.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for a left shoulder disability, to include as secondary to the service-connected knee disabilities or a cervical spine disability.

12.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for a headache disorder, to include as due to an undiagnosed illness.

13.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for chronic fatigue, to include as due to an undiagnosed illness.

14.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for chronic joint pain, to include as due to an undiagnosed illness.

15.  Entitlement to a finding of total disability based on individual unemployability (TDIU).

16.  Entitlement to an effective date prior to September 24, 2002, for the grant of service connection for a left knee disability.

17.  Entitlement to an effective date prior to September 24, 2002, for the grant of service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney-At-Law


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from May 1980 to March 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and July 2010 rating decisions by the Louisville, Kentucky, Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In January 2007, the Board issued a decision denying service connection for right and left knee disabilities, a back disorder, an acquired psychiatric disorder, bilateral ankle disabilities, a left shoulder disability, and TDIU, and declining to reopen previously denied claims of service connection for a headache disorder, chronic fatigue, and generalized joint pain, all claimed as due to undiagnosed illness.  The Veteran appealed the denials with respect to the left and right knee disabilities to the Court of Appeals for Veterans Claims (CAVC or the Court), which in February 2008, based on a Joint Motion for Partial Remand, vacated the denials and remanded the matters to the Board for further consideration.  The denials with respect to all other issues were not disturbed by the Court.  The Board in turn remanded the left and right knee disability matters to the RO.  

On remand, the RO issued a March 2009 decision which granted service connection for left and right knee Osgood-Schlatter's disease, osteophyte formation, and history of meniscal tear (now referred to as left and right knee disabilities), effective from September 24, 2002.  For the left knee, an initial evaluation of 10 percent was assigned; this was increased to 20 percent effective February 26, 2009.  The right knee was evaluated as 10 percent disabling.  This represented a full grant of the benefits sough on appeal in the prior proceedings.  The Veteran then initiated new appeals of the March 2009 decision.  He disagreed with the initially assigned baseline evaluations of the knees in July 2009; in timely February 2010 correspondence, he disagreed with the assignment of the effective date of service connection.

In a December 2009 rating decision issued during the pendency of the appeal for increased evaluations, the RO granted entitlement to temporary total disability evaluations for each knee based on surgeries necessitating convalescence under 38 C.F.R. § 4.30.  The 100 percent evaluation was effective from June 4, 2003, to September 1, 2003, and from July 3, 2008 to October 1, 2008, for the left knee, and from August 15, 2003, to November 1, 2003, for the right knee.  None of the periods of total evaluation are considered to be on appeal, as the maximum possible evaluation has been assigned for those periods; the Veteran has not objected to the start or end dates of any such period.  

In a July 2010 decision, the RO addressed the remaining appellate issues listed above as Issues 6-15.  These matters were addressed in the July 2008 Board decision, and the Board's denials of entitlement to the benefits sought are final as of issuance and notice of the decision.  38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100.  The Veteran subsequently filed a series of reopened or renewed claims of entitlement.  The Board must decide whether the Veteran has submitted new and material evidence to reopen the claim.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....").  Accordingly, the issues have been recharacterized to reflect the correct procedural posture where appropriate.  TDIU, as a claim for increased evaluation, need not be recharacterized.  Issues with regard to undiagnosed illnesses were also properly characterized as reopened claims.  The cervical spine disability was claimed and considered for the first time.

The issues of entitlement to arthritic changes of the right and left great toes, and entitlement to a waiver of a debt of $3,714.00 have been explicitly raised by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), based on review of the physical file and records maintained in the Virtual VA electronic system.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

All issues save that of evaluation of the left knee prior to June 4, 2003, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

Prior to June 4, 2003, the service-connected left knee disability was manifested by a pre-operative tear of the meniscus, with pain and joint effusion, and subjective reports of locking and giving way.


CONCLUSION OF LAW

The criteria for an initial evaluation of 20 percent, but no higher, for a left knee disability prior to June 4, 2003, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a left knee disability.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required.

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran's Social Security Administration disability determination, and the records considered in that determination, have been obtained.  38 C.F.R. § 3.159 (c) (2).  A VA examination was conducted in July 2003, which is after the closing date of the stage under consideration here.  However, the examiner provided some retrospective information regarding the left knee disability.  Further, there is sufficient information in the VA treatment records to permit application of the rating schedule.  No further examination to determine the extent of the disability a decade ago, prior to two surgeries, is required, or possible.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Analysis

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58  (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

There are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability.  Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there remains some motion of the left knee, this Code is not applicable here.  Similarly, while evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg.  No tibia or fibula impairment is shown here. 38 C.F.R. § 4.71a, Code 5262. 

Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint.  Moderate impairment warrants 20 percent.  A 30 percent evaluation is assigned where the impairment is severe.  38 C.F.R. § 4.71a, Code 5257.  VA treatment records prior to June 2003 and the VA examination in July 2003 reveal no objective evidence of left knee instability.  The Veteran has competently reported a "giving way" sensation during the period prior to June 2003, particularly on stairs, but objective examinations repeatedly showed no joint laxity.  Accordingly, the impairment cannot be considered to be greater than slight, and no evaluation in excess of 10 percent may be assigned under Code 5257.

There are three potentially applicable Diagnostic Codes which evaluate knee disability on the basis of limitation of motion.  The first, Code 5003, was applied by the RO in the March 2009 rating decision to assign the current 10 percent evaluation; the disability was rated by analogy to osteomalacia under Code 5014.  38 C.F.R. § 4.20.  Code 5014 directs that the criteria of Code 5003 be applied.  Code 5003, for degenerative arthritis, provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, as discussed above.  When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  38 C.F.R. § 4.71a, Code 5003.  The knee is a major joint.  38 C.F.R. § 4.45(f).

Note (1) provides that the 20 pct and 10 pct ratings based on X- ray findings will not be combined with ratings based on limitation of motion.  Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive.  38 C.F.R. § 4.71a, Code 5003. 

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  It was under this provision that the RO assigned the initial 10 percent evaluation.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. 

No higher 20 percent evaluation is available under Code 5003 in the absence of involvement of multiple joints.  Only the left knee is considered here, and as the right knee is also rated 10 percent disabling, for a current combined evaluation of 20 percent (21 percent with inclusion of the bilateral factor under 38 C.F.R. § 4.26), there is no advantage to the Veteran in assignment of 20 percent under Code 5003.

Code 5260 assigns evaluations based on limitation of flexion.  In pertinent part, limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion.  38 C.F.R. § 4.71a, Code 5260. 

Limitation of extension is rated under Code 5261.  Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation.  Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation.  38 C.F.R. § 4.71a, Code 5261.  

In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

Prior to June 4, 2003, there is no limitation of extension noted by any treating doctor.  Several specify in fact that range of motion of the left knee is full.  While pain on motion was reported by the Veteran, several care providers also noted that complaints were not entirely consistent with behaviors and physical examination; the Veteran's complaints may have been exaggerated to some extent.  Regardless, however, the record does not reflect any goniometer measurements or estimates of limited knee motion in any plane.  In the absence of such measurements, no compensable evaluation for limitation of motion of the left knee may be assigned under Codes 5260 or 5261, even upon consideration of additional functional impairment due to the DeLuca factors.  There is simply no reliable way to estimate or infer the degree of functional limitation.

Accordingly, while separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability, in this instance consideration of such is not required.  See generally VAOPGCPREC 23-97, VAOPGCREC 9-98, and VAOPGCPREC 9-04; 38 C.F.R. § 4.14.

The evidence of record demonstrates that for the period prior to June 4, 2003, the Veteran had a torn meniscus of the left knee.  Such was indicated by clinical findings, and confirmed by radiological studies.  Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci.  Code 5259 provides a 10 percent evaluation for post-operative residuals of meniscal injury.  38 C.F.R. § 4.71a, Code 5259.  This Code is not applicable for the period prior to June 4, 2003, and surgery had not yet occurred.  Further, there is no provision for an evaluation greater than the currently assigned 10 percent, and hence no advantage to the Veteran.  Finally, as the symptoms compensated under Code 5259 would duplicate those considered under other knee Codes, simultaneous application is prohibited as pyramiding.  38 C.F.R. § 4.14.

Code 5258 provides a 20 percent evaluation for a damaged meniscus with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Code 5258.  VA treatment records reflect that prior to June 4, 2003, the Veteran regularly complained of left knee pain, and he subjectively reported locking and feelings of giving way.  Physical examinations showed no joint laxity, but did demonstrate crepitus and elicited complaints of additional pain.  Effusion was periodically noted by treating doctors and shown on MRI, particularly immediately prior to the Veteran's June 2003 meniscal surgery.  The Veteran is competent to report feelings of locking and instability.  Layno v. Brown, 6 Vet. App. 465 (1994).  Doctors do question his credibility to some extent, based on evidence of exaggeration, but despite possible exaggeration of pain complaints, there remains objective evidence of consistent, regular impairment of the left knee joint due to a torn meniscus.  That tear was bad enough and impairing enough to require surgery.

Accordingly, resolving all doubt in favor of the Veteran, an increased 20 percent evaluation for the left knee disability is warranted for the period prior to June 4, 2003, under Code 5258.  

Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321.  Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

As is discussed above, the Rating Schedule provides higher evaluations than that currently assigned for signs, symptoms, and manifestations of the left knee disability which are either not currently present or do not rise to the level of severity required.  The competent medical evidence of record shows that his left knee disability is primarily manifested by pain, tenderness and limitation of motion.  Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion.  The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  The criteria under the Schedule fully contemplate the Veteran's complaints, and hence the Schedule is adequate for evaluation of the current disability.  No further discussion of an extraschedular evaluation is required.


ORDER

An increased, 20 percent evaluation, but no higher, for the left knee disability, for the period prior to June 4, 2003, is granted, subject to the laws and regulations governing the award of monetary benefits. 


REMAND

With regard to the remaining issues, remand is required for provision of due process, and compliance with VA's duties to notify and assist the Veteran in substantiating his claims.

Left Knee Evaluation

With regard to evaluation of the left knee disability from September 1, 2003, to July 30, 2008; October 1, 2008, to February 26, 2009; and since February 6, 2009, remand is required to obtain potentially relevant private and VA medical records identified by the Veteran or in the record.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

First, the Veteran has stated that he underwent an additional left knee surgery at St. Mary and Elizabeth Hospital in 2004; in March 2010, the RO requested that the Veteran submit a properly executed release to allow VA to obtain the records on his behalf.  A handwritten notation on the bottom of that correspondence, dated three days prior to the letter, indicates that the request was reviewed or received.  It is unclear what this note means.  No release for the private care provider is reflected in the file, and the only evidence from the hospital associated with the record appears to involve a debt collection action against the Veteran.  It is not clear whether these records are considered responsive to the request, or if such prompted VA to abandon efforts to obtain the records.  To ensure that all reasonable steps to obtain the relevant private records are undertaken, consistent with 38 C.F.R. § 3.159(c)(1), VA must again request a properly executed release for the 2004 private hospital and surgical records.

Further, the most recent Code Sheet, dated in July 2010, indicates that the Veteran was scheduled for a routine future examination in June 2011 to evaluate the current status of his left knee disability.  There is no information in the file, or in the electronic records maintained in Virtual VA, regarding whether this examination took place.  However, because the potential existence of clearly relevant VA records is indicated, VA has a duty to obtain and consider such.  38 C.F.R. § 3.159(c)(2).  

In light of the passage of time since the most recent verified examination, a new examination is advisable to obtain updated findings.  Updated VA treatment records should also be obtained.

Right Knee Disability

In October 2011 correspondence, the Veteran reported that he had undergone right knee surgery in October 2010.  It is not evident whether such was performed by VA or a private provider.  Regardless, the Veteran specifically requested consideration of a temporary total disability evaluation under 38 C.F.R. § 4.30 for the right knee due to his surgery.  This is itself an evaluation question, and part of the issue before the Board.  Additionally, the records likely contain information regarding the status of the right knee before and after surgery.  They must be obtained to complete the record for adjudication; as they may discuss the Veteran's right knee history in its entirety, the Board cannot exclude the possibility that the records are relevant to all stages of evaluation under consideration.

Updated VA examination findings are advisable in light of the surgery since the last VA examination, and updated VA treatment records should also be obtained.

Due Process

With regard to all remaining issues on appeal, remand is required for issuance of a statement of the case (SOC).  In February 2010 correspondence perfecting his appeals with regard to the evaluations assigned for left and right knee disabilities, the Veteran notified VA of his disagreement with the currently assigned effective dates of service connection for those disabilities.  This notice of disagreement (NOD) was received within one year of notification of the March 2009 appealed action, and is timely.  38 C.F.R. § 20.302.

In a July 2010 decision, the RO denied service connection (either initially or through declining to reopen claims) for an acquired psychiatric disorder, a low back disorder, right and left ankle disorders, a left shoulder disability, a cervical spine disorder, headaches, fatigue, and generalized joint pain.  Entitlement to TDIU was also denied.  The Veteran disagreed with all of these decisions in December 2010 correspondence submitted by his attorney.

There is no indication in the physical claims file or the electronic records maintained in the Virtual VA system that an SOC has been issued with regard to any of these issues.  When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal.  38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999).

Moreover, with regard to the claims of service connection for an acquired psychiatric disorder, a low back disorder, right and left ankle disorders, a left shoulder disability, headaches, fatigue, and generalized joint pain, there are of record prior final RO or Board decisions denying the claims.  As is discussed in the Introduction above, the issues are therefore properly recharacterized to reflect the need for new and material evidence to reopen the previously denied claims.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

The Veteran has not been properly notified of this need with respect to his claims.  Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  Where a previously denied claim is being reopened, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

A March 2010 letter addressed the left shoulder and headaches, but did not address the correct most recent final decision or the proper grounds for the denials.  The July 2010 rating decision refers to July 2, 2010, and October 29, 2010, notice letters, but copies of these letters are not associated with the claims file, and their content cannot be verified.  Accordingly, to ensure that complete and proper notice has been provided to the Veteran with regard to all appellate issues, new notice letters must be sent addressing all correctly identified issues and the evidentiary requirements applicable to each.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents with regard to reopening claims of service connection for an acquired psychiatric disorder, a low back disorder, right and left ankle disorders, a left shoulder disability, headaches, fatigue, and generalized joint pain, last denied in a January 2007 Board decision.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and Kent v. Nicholson, 20 Vet. App. 1 (2006).  

2.  Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for St. Mary and Elizabeth Hospital in 2004, and for the care provider who performed the October 2010 right knee surgery.

Upon receipt of such, VA must take appropriate action to contact the providers and request complete treatment records not already associated with the claims file.  The Veteran should be informed that in the alternative he may obtain and submit the records himself.

3.  Associate with the claims file complete VA treatment records from the medical center in Louisville, Kentucky, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of August 2010 to the present.  A report of any routine future examination performed after April 2010 must be specifically requested.

All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records.

4.  Schedule the Veteran for a VA Joints examination.  The examiner must fully describe the current status of the service-connected left and right knee disabilities, to include all manifestations of functional impairment.  The examiner must specifically comment on the impact of the knee disabilities on occupational functioning.

5.  Provide the Veteran an SOC which addresses the issues of service connection for a cervical spine disability, entitlement to an earlier effective date of service connection for left and right knee disabilities, entitlement to TDIU, and whether new and material evidence has been received to reopen previously denied claims of service connection for an acquired psychiatric disability, a low back disability, right and left ankle disabilities, a left shoulder disability, a headache/undiagnosed illness disorder, a chronic fatigue/undiagnosed illness disorder, and a generalized joint pain/undiagnosed illness disorder.  The Veteran should be informed of the requirements to perfect an appeal as to those issues.  If a substantive appeal is timely filed, the issues should be certified to the Board.

6.  With regard to evaluation of the right and left knee disabilities, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated.  Then readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

The appellant has the right to submit additional evidence and argument on the 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. 2011).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs