Citation Nr: 1300904 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-26 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability. 3. Entitlement to an increased rating for lumbar disc disease, currently evaluated as 40 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from January 1955 to November 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007 and July 2009 rating decisions of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) at the RO in St. Petersburg, Florida in December 2009. A written transcript of this hearing has been prepared and incorporated into the evidence of record. By way of history, the Veteran's claims concerning a higher rating for lumbar disc disease and for a TDIU were previously remanded by the Board in March 2010 for further evidentiary development. In September 2011, the Board again remanded these claims, and also remanded the claims for service connection for a right knee disability and for a left knee disability to allow the agency of original jurisdiction (AOJ) to issue a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued the Veteran an SOC in May 2012 and the Veteran timely perfected his appeal that same month by filing a VA Form 9 (Appeal to Board of Veterans' Appeals). The Board notes that in his May 2012 VA Form 9, the Veteran requested a Board hearing at the RO. Thereafter, in an August 2012 statement (VA Form 21-4138), the Veteran withdrew his hearing request. The claims of entitlement to service connection for a right knee disability and for a left knee disability, to include as secondary to service-connected disability, as well as the claim for entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's lumbar disc disease has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less without evidence of incapacitating episodes (as defined by VA regulations); unfavorable ankylosis of the lumbar spine has not been shown. CONCLUSION OF LAW The criteria for a rating greater than 40 percent for lumber disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision on the claim on appeal for entitlement to an increased rating for lumbar disc disease has been accomplished. Through a July 2007 notice letter, the Veteran was notified of the information and evidence needed to substantiate his claim. The notice letter also provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the October 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the notice letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state agency, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. The Board also finds that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim for entitlement to an increased rating for lumbar disc disease. The Veteran's service treatment records (STRs) are associated with the claims folder, as are treatment records from the Bay Pines (Florida) VA Health Care System. Additionally, private treatment records from Pasadena Family Medical Associates, from Tampa Bay Orthopaedic Specialists, and from Bayside Medical are also associated with the claims folder. Furthermore, of record are a number of statements from the Veteran's spouse, friends, and family, as well as the Veteran's work supervisor. The Veteran has not otherwise indentified treatment from any other private health care providers, nor has he alleged that there are any outstanding medical records probative of his claim that need to be obtained. The Board also notes that the Veteran has been provided with a number of VA examinations with respect to his claim. In particular, the Board finds the examination reports of record contain sufficient evidence by which to evaluate the Veteran's service-connected lumbar disc disease in the context of the rating criteria. With respect his most recent VA spine examination in April 2012, the Veteran submitted a statement in May 2012 alleging the examination was inadequate. The Board has considered the Veteran's May 2012 statement and reviewed the April 2012 Disability Benefits Questionnaire (DBQ) associated with the Veteran's examination. The DBQ documents the Veteran's reported thoracolumbar symptomatology, to include the Veteran's report as to its severity. Additionally, the examiner reported the range of motion of the Veteran's thoracolumbar spine and also commented on the relevant rating criteria as they pertained to intervertebral disc syndrome. As such, notwithstanding the Veteran's contention, the Board finds the April 2012 VA spine examination (or DBQ) adequate for adjudication purposes. Thus, the Board finds the duty to notify and assist the Veteran in development of his claim for entitlement to an increased rating for lumbar disc disease, has been met. II. Analysis Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Furthermore, if a claimant is already receiving the maximum disability rating available based upon symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board also is mindful that VA's Compensation & Pension Service has decided that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's or spine's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. See VA Fast Letter 06-25 (November 29, 2006). The General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Following the rating criteria, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides: In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides: Round each range of motion measurement to the nearest five degrees. Note (5) provides: For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides: Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. A veteran's spine disability can also be evaluated, if warranted, under the intervertebral disc syndrome formula of Diagnostic Code 5243. Under Diagnostic Code 5243, in particular, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Following the rating criteria under Diagnostic Code 5243, Note (1) provides: for purposes of evaluations under Diagnostic Code 5243, 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. Note (2) provides: if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran is entitled to evaluation under whichever formula results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. With respect to the Veteran's service-connected lumbar disc disease, the disability has been rated as 40 percent disabling under Diagnostic Code 5242 for degenerative arthritis of the spine. Thus, to warrant a higher rating to 50 percent, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. The Board's review of the evidence of record on appeal does not reflect that the Veteran's thoracolumbar spine has been ankylosed (fixed in flexion or extension) in either a favorable or unfavorable position. In particular, in a report of April 2008 VA spine examination, the examiner noted spasm and tenderness of the lumbar spine. Forward flexion was to 60 degrees, extension was to 10 degrees, with lateral flexion and rotation to 20 degrees. In a report of May 2010 VA spine examination, the examiner commented that the Veteran's thoracolumbar spine was not ankylosed. Active flexion was to 38 degrees, extension to 5 degrees, left lateral flexion and rotation was to 10 degrees, and right lateral flexion and rotation was to 10 degrees. Additionally, there was no additional loss in range of motion following three repetitions. Most recently, in the above noted April 2012 DBQ, the Veteran was able to perform repetitive motion testing with post test forward flexion ending at 65 degrees (pre-repetitive motion testing was reflective of forward flexion to 55 degrees), extension ending at 5 degrees, left lateral flexion and rotation ending at 10 degrees, and right lateral flexion and rotation ending at 10 degrees. Therefore, the evidence does not reflect unfavorable ankylosis of the thoracolumbar spine (or unfavorable ankylosis of the entire spine) and an increase to 50 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board has also considered whether the Veteran's service-connected lumbar disc disease, which includes degenerative changes of the spine, would warrant a higher disability rating under Diagnostic Code 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis is rated for limitation of motion under the appropriate diagnostic code for the specific joint involved. As noted, the Veteran is receiving a 40 percent rating for his lumbar disc disease based on limitation of motion under Diagnostic Code 5242. Therefore, additional consideration of Diagnostic Code 5003 would not allow for a higher rating. The Board has also considered whether the Veteran's lumbar disc disease would warrant a rating greater than 40 percent under Diagnostic Code 5243 for intervertebral disc syndrome. The Board is mindful of the Veteran's report, and that of his spouse, that on many days his spine disability requires him to stay in bed due to pain, and that he does suffer from incapacitating episodes. In particular, in a December 2009 statement, the Veteran's spouse reported the following, I can attest that [the Veteran] has had incapaticitating episodes during the past two years of at least 6/8 weeks a year or more. . . . During these episodes [the Veteran] requires assistance going to the bathroom and moving about from the bed to the restroom. In the last paragraph of her statement, the Veteran's spouse reported, I can also attest to [the Veteran's] inability to get out of bed due to the severe pain and being bed ridden for days due to the pain. His pain level is debilitating. The Veteran's spouse further commented on incapacitating episodes in a May 2012 statement. She noted that while the VA examiner had reported that the Veteran had not had any incapacitating episodes in the last 12 months, the Veteran had, in fact, had many incapacitating episodes over the last year. As noted above, under Diagnostic Code 5243-(Note 1), an "incapacitating episode" is defined for VA purposes as 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. As referenced by the Veteran's spouse, in the April 2012 DBQ, the examiner noted that the Veteran had not had any incapacitating episodes in the last 12 months. Otherwise, the medical evidence of record does not reflect that a physician has prescribed bed rest for the Veteran due to his lumbar disc disease. As such, a rating to 60 percent under Diagnostic Code 5243 for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is not warranted. Also, separate 40 percent disability ratings for sciatica of the right lower extremity and for sciatica of the left lower extremity were awarded by the Board in September 2011 as part of the Veteran's appeal. Otherwise, a review of the reports of examination (to include DBQs) associated with the Veteran's spine and peripheral nerves, does not reflect additional neurological disabilities associated with the Veteran's service-connected lumbar disc disease. As such, further discussion regarding separate disability ratings for neurological symptomatology is not warranted. II. Additional Considerations Consideration has also been given to whether the schedular evaluation is inadequate, requiring that the AOJ refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the analysis must include a discussion of whether the rating criteria adequately address all of the claimant's symptomatology. The Veteran's primary symptoms associated with his service-connected lumbar disc disease are muscle spasm, limitation of motion, stiffness, fatigability, as well as debilitating pain. The rating criteria under 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, contemplate these symptoms, in particular, limitation of motion and pain (whether or not it radiates). Additionally, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome, the Veteran's pain is also contemplated based on incapacitating episodes. As noted in the discussion above, the Veteran and his spouse have reported that the Veteran does suffer from incapacitating episodes. However, the regulation defines, in part, incapacitating episodes as bed rest prescribed by a physician. The evidence, in the present case, does not reflect bed rest prescribed by a physician. Thus, while the evidence of record indicates that the Veteran's disability does have an occupational affect and also affects his daily activities, the first step of the Thun analysis, whether the rating criteria adequately address all of the claimant's symptomatology, has been met. As such, the Board's extra-schedular analysis ends, and consideration of the second step-whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization-is not warranted. Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b). Therefore, for all the foregoing reasons, the Board finds that a rating greater than 40 percent for service-connected lumbar disc disease is not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER A rating greater than 40 percent for lumbar disc disease is denied. REMAND Bilateral Knees With regard to the Veteran's claims for service connection for right knee and left knee disabilities, the Board notes that the Veteran's service treatment records (STRs) do not reflect complaints or treatment for disability of the knees. Currently, the Veteran has been identified as having degenerative joint disease of his right knee and his left knee. A review of the claims folder reflects that the Veteran's treating private physicians have related the Veteran's knee disabilities to the in-service event that resulted in the Veteran's service-connected lumbar disc disease, or otherwise, generally, to the Veteran's active military service. In this regard, in a May 2009 letter from the Veteran's private physician, it is noted that the Veteran had reported knee and back problems which he related to his service-related injury in 1955. Likewise, medical opinion forms, completed by two of the Veteran's private treating clinicians, reflect review of the Veteran's STRs as well as his VA records, and opinions that the Veteran's right and left knee disabilities were more likely than not a result of the Veteran's military service. These opinions, as well as the other private opinions associated with record on appeal, included no rationale or explanation. Otherwise, in an April 2011 report of VA joints examination, a VA examiner noted the Veteran's report of the onset of knee pain in 2004. The examiner did not find the Veteran's knee disabilities were related to the Veteran's service-connected lumbar disc disease. The examiner provided the rationale for his opinion and also commented that the Veteran's degenerative joint disease was brought on by general wear and tear activities that involved prolonged standing, walking, and squatting. The Board notes that the April 2011 examination request, initiated by the AOJ, only asked for an opinion regarding the connection between the Veteran's service-connected lumbar disc disease and his bilateral knee disabilities. The request was apparently based on the Veteran's August 2010 claim, in which the Veteran claimed service connection for his knee disabilities secondary to his service-connected lumbar disc disease. Nonetheless, at the time the Veteran filed his claim, the evidence of record included the above noted private medical opinions relating the Veteran's knee disabilities to his period of military service. Regrettably, in light of the above, and the need for the examiner to specifically address the likelihood that the Veteran's knee disabilities are related to the Veteran's period of military service, the Veteran's claims folder should be returned to the VA examiner who performed the April 2011 VA joints examination. The examiner should review his examination report and its findings as well as the evidence of record, to include the private medical opinions and the Veteran's STRs. Then, the examiner should provide an addendum medical opinion as to whether the Veteran's current right and left knee disabilities are related to the Veteran's period of active military service. A complete rationale for any opinion expressed must be provided. If the April 2011 VA joints examiner is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination.) TDIU With respect to the claim for entitlement to a TDIU, the Veteran was noted to be working full time up to November 2010. A statement that month from the Veteran's spouse noted that the Veteran's work week was reduced to 3 days, as the Veteran was unable to physically keep up with the demands of his job. In the April 2012 DBQ, the VA examiner commented that the Veteran's service-connected lumbar disc disease did impact the Veteran's ability to work due to range of motion difficulties, back pain, difficulty carrying objects, bending, kneeling, and doing prolonged standing and walking. The examiner further commented that the Veteran would not be, however, precluded from the sedentary aspects of employment. With regard to the physical aspects of employment, the Veteran would benefit from modifications dealing with prolonged standing, lifting of heavy objects, and repetitive bending. The Board notes that entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Many disabled people are able to do some form of work but it is not the type of work, or amount of work, by which one can provide subsistence for himself or his family. The Board is aware that the ability to perform part-time employment is not an indication that an individual has the ability to maintain substantially gainful employment. See 38 C.F.R. § 4.16(a) (stating that marginal employment is not substantially gainful employment and defining "marginal employment" as competitive employment that does not exceed the poverty threshold for one individual as defined by the U.S. Department of Commerce, Bureau of the Census). See also 77 Fed. Reg. 4034-35 (January 26, 2012) (2012 poverty guideline income figure for a household of one is $11, 170 and for a household of two is $15, 130). Otherwise, factors to be considered in a TDIU determination include loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991); see also Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992). Age, however, may not be a factor in evaluating service-connected disability or unemployability. See 38 C.F.R. § 4.19 (2012). In the present case, the Board notes that the record on appeal does not include any evidence concerning the Veteran's education, training, or work history. In this regard, in January 2008, the Veteran was sent a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The Veteran did not complete and submit the VA Form 21-8940, as he notified the AOJ in a January 2008 statement that he was not filing a claim for a TDIU. At that time, the Veteran reported that he was employed and hoped to remain employed for some time. Presently, the Board is unable to determine, based on the lack of evidence regarding the Veteran's education, training, and/or work history whether his service-connected lumbar disc disease, individually or in concert with his other service-connected disabilities, would reasonably allow for sedentary, gainful employment. In this regard, the VA examiner in April 2012 never addressed the Veteran's education, training, and/or work history in making his determination. Likewise, while the VA examiner in April 2012 did address the Veteran's lumbar disc disease, it is not clear whether the opinion took into consideration the Veteran's service-connected sciatica of the bilateral lower extremities, service-connected bilateral hearing loss, or service-connected tinnitus. In a May 2012 statement to the Board regarding his April 2102 VA examination, the Veteran reported that he was hard of hearing. At the same time, the current evidence does reflect that the Veteran is able work three days a week in a sedentary position, based on accommodations provided by his current employer. Whether those three days amount to gainful employment, as defined by 38 C.F.R. § 4.16(a) above, is unknown, as the record before the Board does not include any information on the Veteran's currently work salary. Otherwise, the Veteran and his spouse have reported that the Veteran has difficulties with his memory, which is not a service-related condition. The Veteran's spouse reported in her May 2012 statement that the Veteran's family has a history of Alzheimer's disease as well as dementia. In light of the above and the need for additional information from the Veteran concerning his education, training, and/or work history, as well as his current work salary, the AOJ should again issue the Veteran a VA Form 21-8940 and request that the Veteran complete and return the form. Additionally, the Veteran's claims folder should be returned to the VA examiner who provided the April 2012 opinion regarding the Veteran's employability. The examiner should review his examination report and its findings as well as the evidence of record. Then, the examiner should provide an addendum medical opinion with regard to whether the Veteran's service-connected disabilities, individually or in concert, preclude the Veteran from substantially gainful employment. A complete rationale for any opinion expressed must be provided to include consideration and discussion of the Veteran's education, training, and/or work history. If the April 2012 VA examiner is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination.) Finally, in light of the development requested above, the Veteran should also be provided an opportunity to supplement the record on appeal with any relevant VA or private treatment records associated with his claims for service connection for right knee and for left knee disabilities, as well as the claim for a TDIU. The Board notes that a review of the Veteran's claims folder, to include his Virtual VA electronic file, reflects treatment through the Bay Pines (Florida) VA Healthcare System up to April 2012. Accordingly, the claims are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) (For the benefit of the examiners providing the addendum VA medical opinions, as discussed below in paragraphs 3 and 4, the AOJ should not remove the Board's tabs in the claims folder.) 1. Issue the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and request that the Veteran complete and submit the form to the AOJ. The Veteran should also be invited to submit evidence of his education, training, and/or work history, to include his current work-related salary. 2. In addition to the above development, request that the Veteran identify any private or VA treatment he may have received for his claims for service connection for a right knee disability and for a left knee disability, as well as for a TDIU. After obtaining the appropriate release of information forms (where necessary), procure records of any treatment the Veteran has received. The most recent VA records, associated with the Veteran's treatment through the Bay Pines (Florida) VA Healthcare System, are dated no later than April 2012. Records since this time should be sought. If any other records identified by the Veteran are not available, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e) (2012). 3. After completion of the above (and allowing a reasonable amount of time to obtain the VA Form 21-8940 and/or any other identified records or information), the claims folder should be referred back to the VA joints examiner who provided the April 2011 medical opinion for an addendum opinion concerning the Veteran's claimed right and left knee disabilities. A copy of this remand must be made available to the examiner for review in connection with the requested opinion. The examiner, following a review of claims folder, to include the Veteran's service treatment records and opinions of the Veteran's private treating clinicians, should opine as to whether it is at least as likely as not (a 50% or higher degree of probability), that the Veteran's right knee disability and/or his left knee disability are related to his period of service. All opinions and conclusions expressed must be supported by a complete rationale. As part of the rationale provided, the examiner should discuss the reasons for accepting or rejecting the opinions of the Veteran's private treating clinicians relating the Veteran's right knee disability and left knee disability to his period of service. If the VA examiner is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be asked to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion at that time, the Veteran should be scheduled for an examination and the necessary opinion requested.) 4. The claims folder should also be referred back to the VA examiner who provided the April 2012 employability (TDIU) opinion for an addendum opinion. A copy of this remand must be made available to the examiner for review in connection with the requested opinion. The examiner should again be asked to ascertain whether the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected disabilities, which, at this time, are lumbar disc disease (rated as 40 percent disabling), sciatica of right lower extremity (rated as 40 percent disabling), sciatic of the left lower extremity (rated as 40 percent disabling), bilateral hearing loss (rated as 20 percent disabling), and tinnitus (rated as 10 percent disabling). [If prior to this examination, service connection is established for other disabilities, the examiner should also consider these disabilities. If subsequent to this examination, service connection is established for other disabilities, the examiner should be provided an opportunity for an addendum opinion.] In making the requested employability determination, the examiner must consider and discuss the Veteran's level of education, other training, work experience, and the disabling affects of his service-connected disabilities (individually or in concert) on his ability to obtain or maintain substantially gainful employment. The examiner's report must include a complete rationale for all opinions and conclusions expressed. 5. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the remaining issues on appeal-entitlement to service connection for a right knee disability and for a left knee disability, as well as entitlement to a TDIU. If the benefits sought are not granted, the Veteran and his representative should then be furnished a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board. The Veteran 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 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. 2012). ______________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs