Citation Nr: 1237009 Decision Date: 10/25/12 Archive Date: 11/08/12 DOCKET NO. 10-16 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left shoulder degenerative joint disease (DJD). 2. Entitlement to a rating in excess of 10 percent for postoperative right shoulder DJD.. 3. Entitlement to a rating in excess of 10 percent for a right knee disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. 5. Entitlement to a rating in excess of 10 percent for lumbar spine DJD and degenerative disc disease DDD.. 6. Entitlement to a compensable evaluation for dyssomnia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1986 until he retired in July 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Department of Veterans Affairs (VA) regional office (RO) that, in pertinent part, granted service connection for the disabilities at issue and assigned the ratings appealed. The Veteran had also initiated appeals of the ratings for bilateral hearing loss and tinnitus, but did not perfect his appeal in those matters after a statement of the case (SOC) was issued. Hence, those two issues are not before the Board. In August 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. At his Travel Board hearing and in a subsequent written statement, the Veteran raised a claim of service connection for posttraumatic stress disorder. As that matter has not been adjudicated by the RO, the Board does not have jurisdiction over it and it is 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 instant appeal is from the initial ratings assigned with awards of service connection. In such cases, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). In June 2008 the Veteran was afforded a pre-discharge general examination to assess the severity of the disabilities at issue. At the August 2012 Travel Board hearing, he testified that the disabilities were more disability than reflected by the 2008 examination findings. He is considered competent to observe a worsening of musculoskeletal and dyssomnia symptoms. Accordingly, and given that more than four years have passed since the examination on which the ratings are based, contemporaneous VA examinations to assess the severity of the disabilities are necessary. The case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of any (and all) treatment or evaluations he has received for his service connected bilateral shoulder, bilateral knee, lumbar spine, and dyssomnia disabilities, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure any private records of such treatment or evaluation. The RO should secure for the record copies of the complete clinical records of all such treatment and evaluations from the sources identified by the Veteran, specifically including records of any pertinent VA treatment. If any records identified are unavailable, the reason for their unavailability must be explained for the record. 2. The RO should then arrange for an orthopedic examination of the Veteran to determine the severity of his service connected bilateral shoulder, bilateral knee, and lumbar spine, disabilities. His claims file should be reviewed and a full medical history elicited. All indicated studies should be performed. The clinical findings should be set forth in detail, and the examination report should include active and passive ranges of motion (in degrees). Any further limitations of motion due to pain/on use should be noted. The examiner should also ascertain whether the disabilities result in weakened movement, excess fatigability, or incoordination; if so, and if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost due to such factors. The examiner must be provided a copy of the criteria for rating each disability, and the findings reported must be sufficiently detailed to allow for rating under the applicable criteria (i.e., note the presence or absence of each symptom in the criteria for ratings above 10 percent, under all applicable diagnostic codes). Specifically, regarding the knees, the examiner should report whether there is subluxation or instability in the knees (and if so the extent of such). The examiner should reconcile the Veteran's reported use of prescribed knee braces with the 2008 examination notation that there was no instability of the knees. Regarding the lumbar spine, the examiner should specifically note whether the lumbar spine is ankylosed, whether there are any associated neurological symptoms (and if so their nature and severity), and whether or not the disability has been manifested by incapacitating episodes, i.e., periods of bedrest prescribed by a physician (of disc disease, and if so their durations and frequency). The examiner should comment on the Veteran's specific complaints of functional impairment (i.e., whether they are consistent with clinical findings), and explain the rationale for all opinions offered. 3. The RO should also arrange for the Veteran to be examined by an appropriate provider to determine the symptoms and assess the severity of his service-connected dyssomnia. The examiner should review the claims file and elicit the Veteran's complaints (commenting on their consistency with factual data). The examiner should identify the symptoms (and related functional impairment) attributable to the dyssomnia, and note the treatment (and comment regarding the impact of any treatment on occupational/everyday functioning). The examiner must explain the rationale for all opinions. 4. The RO should then re-adjudicate the claims (to include consideration of the possibility of "staged" ratings, if indicated by facts found). If any remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2011).