Citation Nr: 1237216 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-03 985 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to an increased disability rating for mild degenerative changes of the lumbar spine with anterior osteophytes, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1986, and from March 1987 to April 1996. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision issued by a VA RO, which inter alia, denied service connection for a bilateral knee disability and continued a 10 percent disability rating for the Veteran's service-connected lumbar spine disability. These issues were previously denied by the Board in a July 2011 decision. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2012, the Court granted a joint motion for remand that had been filed by counsel for the Veteran and the VA Secretary. By its order of that date, the Court vacated the portion of the Board's July 2011 decision which denied service connection for a bilateral knee disability and an increased rating for the Veteran's lumbar spine disability and remanded those issues for the Board's action consistent with the terms set forth in the joint motion. 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 In the July 2011 decision, the Board denied service connection for a bilateral knee disability based in part upon reliance upon a May 2009 VA examination report which expressed that the Veteran's current knee conditions were not incurred during active duty service or caused by any events during service. As rationale for this opinion, the VA examiner noted that the treatment records in the claims file did not appear to indicate any subjective complaints related to the knees over the several years following service. In the joint motion, the parties note that a translated private August 1999 treatment record noted that the Veteran could "not kneel or squat with the right knee." The parties also point to a July 2002 letter from the Veteran's private physician which stated that the Veteran had been experiencing problems in his right knee which began while running during his active duty service. In light of this evidence, the parties assert, the Board erred in overlooking this evidence, and moreover, suggest that the VA examiner's May 2009 opinion is deficient as it is not based upon an accurate understanding of the Veteran's medical history. As noted above, the Board's July 2011 decision also denied a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability. The parties assert in the joint motion that this decision did not adequately consider the Veteran's reported flare-ups of low back pain in connection with the rating assigned for the Veteran's spine disability. In that regard, the parties point to various treatment records in the claims file which reflect complaints of flare-ups and suggest that medical evidence of record "may not have been detailed enough for the Board to have made an informed evaluation of additional functional limitation due to [the Veteran's] flare-ups." As basis for this argument, the parties note that although objective evidence of pain on active motion of the thoracolumbar spine was noted during VA examinations performed in May 2009 and May 2010, the VA examiner did not delineate in either report at what point in the Veteran's thoracolumabar motion pain became present. The parties also note that the examiner did not offer an opinion in either report as to the effects of the Veteran's flare-ups on his thoracolumbar range of motion, or, whether pain during flare-ups could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. For these reasons, the parties suggest, the May 2009 and May 2010 opinions are incomplete. In view of the foregoing, the Board finds that the Veteran should be arranged to undergo a new VA examination of his knees and thoracolumbar spine. This examination should explore the nature and etiology of any disabilities in the Veteran's bilateral knees, and the current severity of the Veteran's service-connected lumbar spine disability, including the effects of any flare-ups upon the Veteran's level of spine functioning. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the name and addresses for all medical care providers, both VA and private, who have treated him for his bilateral knees and low back since September 2009. After securing the necessary release, the RO/AMC should request any identified records which are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran and his representative should be notified of such. 2. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of his claimed bilateral knee disability and the current severity of his service-connected lumbar spine disability. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Regarding the Veteran's knees, following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for all disabilities found in the bilateral knees and provide an opinion as to whether it is at least as likely as not (is at least a 50 percent probability) that any disabilities in either knee are a result of his active duty service, to include right knee disabilities that were noted during the Veteran's service. Regarding the Veteran's service-connected lumbar spine disability, the examiner should describe all symptomatology related to the Veteran's disability, to include all orthopedic and neurological symptoms. All indicated tests should be performed and all findings should be reported in detail, including range of motion of the thoracolumbar spine (specifying at what degree in motion pain begins). The examiner should indicate whether there is objective evidence of a radiculopathy attributable to his lumbar spine disability. The examiner should also describe any functional loss pertaining to the service-connected lumbar spine disability due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of any incapacitating episodes (i.e., acute signs and symptoms of intervertebral disc syndrome that have required bed rest prescribed by a physician and treatment by a physician). 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative, if any, should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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. 2011). _________________________________________________ K. A. BANFIELD 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) (2011).