Citation Nr: 1301665 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-38 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disorder, claimed as secondary to service-connected residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet. 2. Entitlement to an initial rating in excess of 30 percent for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to July 1990. He completed prior service with the Florida Army National Guard. His awards and decorations include the Combat Infantryman Badge and Purple Heart. This matter was last before the Board of Veterans' Appeals (Board) in September 2010, on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Board decided three (3) issues and remanded the two (2) issues reflected on the title page for further development. The appeal now returns for appellate review. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the September 2010 remand orders or, where there was a lack of compliance, no prejudice resulted to the Veteran in regard to the claim for service connection for a low back disorder and no further action is necessary in regard to that issue. See D'Aries v. Peake, 22 Vet.App. 97, 105 (2008); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet.App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As the November 2012 brief submitted by the Veteran's authorized representative and the September 2011 supplemental statement of the case (SSOC) incorrectly identified the issues remaining on appeal, the Board herein clarifies the matter. In September 2010, the Board issued a decision denying entitlement to an initial rating in excess of 10 percent for total left knee arthroplasty (with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet) prior to December 2, 2008, granting a separate initial 10 percent evaluation for left knee instability prior to December 2, 2008, denying entitlement to service connection for a left ankle disorder, and denying entitlement to service connection for a right hip disorder. The Board remanded the issues of entitlement to service connection for a low back disorder and entitlement to an initial rating in excess of 30 percent for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. The November 2012 brief from the Veteran's authorized representative refers to the issues of service connection for left ankle and right hip disorders as also being on appeal, but the Board's September 2010 decision on those issues is final. 38 C.F.R. § 20.1100 (2012). The Board's decision to deny an initial rating in excess of 10 percent for total left knee arthroplasty (with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet) prior to December 2, 2008 was also final. Id. However, the Appeals Management Center (AMC) identified that issue - rather than the issue of the Veteran's entitlement to an initial rating in excess of 30 percent for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010 - in November 2010 and April 2011 development letters as remaining on appeal. A September 2011 SSOC further mis-identifies that issue as entitlement to an initial rating in excess of 10 percent (italics added for emphasis) for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. Relevant to such issue, as the Board herein remands it for further development and consideration, the proper issue may be considered by the agency of original jurisdiction (AOJ) so that any prejudice resulting from such error is rendered harmless. The correct issues are reflected on the title page of this decision. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal, which has also been reviewed by the Board. The issue of entitlement to an initial rating in excess of 30 percent for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDING OF FACT A low back disorder is not caused or aggravated by the Veteran's service-connected residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, or his left knee disability. CONCLUSION OF LAW A low back disorder is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006), (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet.App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated August 2006, sent prior to the initial November 2006 rating decision, advised the Veteran of the evidence and information necessary to substantiate hi secondary service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, as well as VA examination records and VA and private treatment records have been obtained and considered. In September 2010, the Board directed the AOJ to assist the Veteran in obtaining any available outstanding records from "Select" and "Dr. H" and the AOJ subsequently issued him authorizations for the release of records from those sources. The record reflects that the AOJ made multiple attempts to retrieve additional records from two (2) physicians referred to as "Dr. H," but received no records in response. The "Dr. H" that the Veteran had identified as providing him with back treatment responded to VA in May 2011 and reported no additional records were available. In a May 2011 letter, VA informed the Veteran of the lack of responses. The record reflects that he did not submit an authorization for the release of records from "Select." While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet.App. 214, 224 (2000); see also Hurd v. West, 13 Vet.App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). The Veteran later submitted a November 2011 SSOC notice response indicating that he did not have any additional evidence to submit. Neither the Veteran nor his representative have identified any outstanding treatment records that VA has not made all appropriate attempts to obtain. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records in regard to his claim for service connection for a back disability. The Veteran was also afforded VA spinal disorders examination in October 2006 and April 2011. Although the Veteran wrote in a November 2011 letter that the most recent examiner made him "feel like a liar concerning [his]... back," neither he nor his representative has specifically alleged that examination is inadequate for rating purposes. Despite the Veteran's comments about the examiner, the Board finds that both examinations are adequate since the reports reflect that the examiners reviewed the claims file, and interviewed and examined the Veteran, prior to rendering a reasoned medical opinion. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). In this regard, the Board is cognizant that the October 2006 VA examiner did not offer an opinion as to whether the Veteran's gunshot wound to the left tibia aggravated his low back disorder, or whether his left knee disability caused or aggravated his low back disorder; however, such deficiency is cured by the fact that the April 2011 examiner rendered an opinion on such matter. The Board also notes that, despite the Board's September 2010 remand directives to opine as to whether it is at least as likely as not that the Veteran's low back disorder is directly related to service, the April 2011 VA examiner did not offer such an opinion. However, the Board finds that the Veteran is not prejudiced by the lack of an opinion on such matter. Specifically, the Board included such inquiry in error in the remand directives as the Veteran has not contended, and the evidence does not indicate, that his low back disorder is directly related to service. In this regard, the Veteran has reported a disability onset date of 2004, which is almost 15 years after service; has not alleged an in-service injury, disease, or event that led to his current disorder; and, as detailed below, his service treatment records are negative for any findings referable to his low back. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Veteran has only claimed that his low back disorder is the result of service-connected gunshot wound to the left tibia. He has not alleged that such is otherwise the result of his military service or that he has had a continuity of low back symptomatology since service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. As indicated previously, the Board remanded this case in September 2010 in order to comply with VA's duties to notify and assist, conduct necessary development, and obtain medical opinions. The AOJ scheduled an examination which was performed in April 2011, obtained additional VA treatment records, and made multiple attempts to obtain additional private records. Other than the aforementioned lack of an opinion regarding direct service connection, which the Board finds results in no prejudice to the Veteran, the Board finds that the AOJ has substantially complied with the September 2010 remand directives such that no further action is necessary in specific regard to the claim of entitlement to service connection for a low back disorder. Dyment v. West, 13 Vet.App. 141, 146-47 (1999); see also D'Aries, supra; see also Golz, supra. With respect to the lack of a opinion regarding direct service connection, the Board acknowledges that the September 2010 remand order specifically directed the VA examiner to render such an opinion and, as she did not, there was no compliance with such order. Even so, the Board finds no prejudice to the Veteran in adjudicating the issue since, as discussed in the preceding paragraph, he has not alleged, and the evidence does otherwise indicate, that a low back disorder is directly related to service. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose - there is no indication of any outstanding and (italics added for emphasis) available treatment records and the Veteran stated in a November 2011 letter that he would not undergo further examination in specific regard to his claim for service connection. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran has claimed such disorders are secondary to his service-connected DM. The Board notes that the Veteran does not allege, nor does the record reflect, that such disorders are related to service on a direct basis. In this regard, the Veteran has reported a disability onset date of 2004, which is almost 15 years after service; has not alleged an in-service injury, disease, or event that led to his current disorder; and, as will be detailed below, his service treatment records are negative for any findings referable to his low back. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) . Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended during the pendency of the Veteran's appeal, effective October 10, 2006; however, the new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310 , which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). The Veteran contends that he experiences a low back disorder secondary to his service-connected residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet. Specifically, he alleges that he experiences intermittently disabling back pain as a result of a leg length discrepancy that was created by the residuals of gunshot wound to his left tibia. The Veteran's service treatment records include no complaints, treatment, or diagnoses of a low back disorder. All periodic in-service physical examinations reflect a normal lumbar spine and the Veteran specifically denied "recurrent back pain" on self reports of medical history completed in April 1966, February 1972, November 1974, December 1975, November 1978, October 1981, July 1983, November 1983, November 1984, October 1985, November 1986, October 1987, and May 1990. On an October 1970 self report, he denied "back trouble of any kind" and he denied "bone, joint, or other deformity" as well as having ever "worn brace or back support" on self reports completed in July 1962, October 1963, February 1965, and March 1965. After service, VA provided the Veteran with a compensation and pension (C&P) examination in October 1990 to evaluate the severity of the residuals of his gunshot wound to the left tibia. The musculoskeletal evaluation portion of the examination report reflects that his gait was normal, he had no spinal disability, and both of his legs measured 39.5 inches. In July 2006, the Veteran reported for VA treatment of pain in his left knee and right hip. The VA treatment note states that he informed the treating physician that his left leg was shorter than his right leg. The Veteran wrote to VA in September 2006 and contended that "the continual bending condition of [his] left tibia has created a crippling condition that irritates [his]... left and right lower back." He also reported that, as a result of his service-connected residuals of gunshot wound to the left tibia that his left leg had been shortened by one (1) inch. Private treatment notes dated from May 2001 are associated with the claims file. A September 2006 note reflects that the Veteran reported back pain that "has been a worsening problem for many years." The physician observed that the Veteran's left leg was "at least 0.5 inch short... maybe closer to .75 of an inch." The treatment note states that an MRI of the lumbar spine taken "about 5 or 6 years ago" was normal. Based on those normal MRI findings, the physician reasoned that the Veteran likely did not have any current spinal degeneration so his "back problem [wa]s related to leg length discrepancy." The physician discussed eventual total knee replacement with the Veteran. VA provided the Veteran with a C&P examination specific to his claim for service connection in October 2006. The examination report reflects the examiner's review of the claims file and interview of the Veteran prior to physical examination. The examination report states that the Veteran reported experiencing lumbar disability since December 2004. He informed the examiner that his back pain flared at that time and required an injection of pain medicine, which he received from his private physician. Upon examination, the examiner observed some decrease in spinal range of motion, with pain. The examiner also noted that the Veteran walked with a mild limp and had a leg length discrepancy associated with degenerative changes to the left knee. Radiology revealed lumbar spondylosis and early degenerative arthritis in the lumbar spine. The examiner observed minimal pain of the lumbar spine, but opined that it was not at least as likely as not that any back disability was related to the prior (gun-shot related) tibial fracture. The examiner reasoned that, after examination, no impairment was found affecting the bilateral ankles or hips. Subsequent treatment notes reveal that the Veteran underwent knee replacement surgery in December 2008. In January 2011, the Veteran submitted an authorization for the release of private medical records from a Dr. Hollis. The authorization form states that Dr. Hollis provided him with an injection of pain medicine in March 2007 or April 2007 to treat back pain. In March 2011, he reported for VA treatment of chronic back pain and informed the treating provider that he believed the pain was due to leg length discrepancy. After evaluation, the Veteran was diagnosed with arthralgias with underlying osteoarthritis. "Arthralgia is pain in a joint." Mykles v. Brown, 7 Vet.App. 372, 373 (1995). The treatment note states that the Veteran refused a referral for shoe inserts to treat leg length discrepancy. VA provided the Veteran with another C&P examination in April 2011 so as to determine whether his low back disorder is the result of his service-connected residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, or his left knee disability. The examination report reflects the examiner's review of the claims file and interview of the Veteran prior to physical examination. The examiner noted that the Veteran reported back pain as more noticeable after his 2008 knee surgery. Upon examination, spinal range of motion was decreased and the left leg measured 5/8 inch shorter than the right leg. X-ray of the lumbar spine revealed mild to moderate anterior hypertrophic spondylosis. The examiner diagnosed lumbar degenerative joint disease (noted as spondylosis and osteoarthritis) with left L4 radiculitis, which she opined was less likely than not caused by, related to, or worsened by his service-connected conditions. In reaching such conclusion, the examiner noted that the Veteran's low back condition began in 2004, at which time he was in his mid-60's. She observed that early osteoarthritis (degenerative arthritis) can begin as early as 30 years old, but normally by the age of 40 years old. The examiner found that, currently, the degenerative changes were not worsened beyond that expected for natural age. She further determined that leg shortening of less than 2 inches does not provide a sufficient medical nexus for development of spinal degenerative disease. Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). In this case, the treatment records and opinions of private clinicians constitute competent medical evidence. The Veteran has provided lay evidence that he did not begin to experience any back disability until 2004. He is competent to report his symptoms. 38 C.F.R. § 3.159. The Veteran contends his back pain results from a leg length discrepancy attributable to his service-connected residuals of gunshot wound to the left tibia. Although he is in receipt of service connection for a left knee disability and medical evidence reflects that leg length discrepancy is related to that disability, there is no indication that the Veteran possesses any education, training, or experience that would qualify him to offer a medical opinion as to the etiology of his back disorder as such is a complex medical question. Routen v. Brown, 10 Vet.App. 183 (1997); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, the question of causation and aggravation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence. The medical evidence of record reflects that the Veteran did not have any diagnosed back disability other than pain until October 2006 when radiology revealed that early degenerative arthritis in the lumbar spine. Although a private physician wrote in September 2006 that he "suspect[ed]" the Veteran's back pain was related to leg length discrepancy, the treatment note reflects that physician was unaware of the underlying spinal degeneration. The October 2006 VA examiner conducted radiology and diagnosed the spinal degeneration prior to opining that any back problem was not likely attributable to leg length discrepancy. The October 2006 VA examiner's opinion is supported by the findings and opinions of the April 2011 VA examiner. Specifically, the 2011 examiner explained that the Veteran's clinical picture reflects typical age-related degenerative changes - that his back condition has not been aggravated beyond a natural progression by any cause, which includes his service-connected disabilities related to his gunshot wound and left knee. The 2011 examiner also explained that leg length discrepancies of less than two (2) inches do not provide a sufficient basis for degenerative spinal changes and observed that the Veteran's left leg was only 5/8 inch shorter than the right leg. Although treatment notes dated July 2006 and March 2011 reflect VA physician's notations that the Veteran believed his back pain was attributable to a leg length discrepancy, the Court has held that medical history provided by a Veteran and recorded by a health care provider without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). The only medical (italics added for emphasis) evidence of record discussing a possible etiological relationship between the Veteran's leg length discrepancy and his claimed back disability is the September 2006 private physician's treatment note and the VA examiners' opinions from October 2006 and April 2011. As the 2006 private physician's treatment note reflects that he did not have knowledge of relevant facts (i.e., the Veteran's current spinal degeneration), the Board finds that the VA examiners' medical conclusions are entitled to greater probative weight. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (a physician should have information regarding relevant case facts). The VA examiners provided opinions based on review of the claims file as well as interview with, and examination of, the Veteran. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); Caluza, 7 Vet.App. at 511-512. Further, the wording of the 2006 private physician's opinion - that he "suspect[ed] [the Veteran's] back problem is related to leg length discrepancy" - indicates speculation and was written without further analysis. Service connection cannot be based on resort to speculation. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet.App. 228, 230 (1992); Obert v. Brown, 5 Vet.App. 30, 33 (1993). Therefore, the Board accords greater probative weight to the VA examiners' opinions. As the most probative evidence of record reflects that the Veteran experiences normal age-related spinal degeneration that was not likely caused or aggravated by his service-connected residuals of gunshot wound to the left tibia, the Board finds that service connection is not warranted for a low back disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a low back disorder is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claim of entitlement to an increased rating for his left knee disability so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted above, in September 2010, the Board remanded the issue of entitlement to an initial rating in excess of 30 percent for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. The Board specifically directed the AOJ to afford the Veteran an additional opportunity to identify, and complete authorizations for the release of, private treatment records and to take any additionally-indicated development, to include affording him a contemporary examination or obtaining additional medical opinion if deemed necessary, prior to readjudicating his claim. Subsequently, the AOJ mailed him two (2) notice letters that identified the issue on appeal as entitlement to an initial rating in excess of 10 percent for total left knee arthroplasty (with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet) prior to December 2, 2008. In September 2011, the AOJ issued an SSOC that identified the issue as entitlement to an initial rating in excess of 10 percent (italics added for emphasis) for total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. Although the SSOC reflects that the AOJ was readjudicating the increased rating issue for the proper time frame (after February 1, 2010), the issue mis-identifies the current rating as 10 percent (rather than 30) and the text of the readjudication states that the "current 20 percent evaluation is continued." (italics added for emphasis). The Board must consider whether the errors in the notices and SSOC have prejudiced the Veteran. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Here, as the November 2012 brief submitted by the Veteran's representative identifies the issue generally as "increased evaluation for left knee condition," it is not clear from the record if the Veteran has actual knowledge of the exact issue remaining on appeal. Further, the claims file reflects that an examination is now warranted as the last examination for the left knee disability was provided in April 2010, just two (2) months after the beginning of the time frame under consideration, and more than 2 years have passed since that time and evident suggests an increase in the severity of such disability. Specifically, in May 2011, the Veteran's private physician submitted a November 2010 treatment note indicating that he was considering "converting to unicompartmental knee replacement arthroplasty" and would return in one year for follow-up treatment; and the Veteran wrote to VA in November 2011 contending that his left knee disability now resulted in disabling pain and limited range of motion affecting his ability to put on or take off socks and shoes. Therefore, a remand is necessary in order to schedule him for an appropriate VA examination to assess the current nature and severity of his service-connected total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet. See Snuffer v. Gober, 10 Vet.App. 400 (1997); Caffrey v. Brown, 6 Vet.App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, while on remand, outstanding VA treatment records from the Pensacola, Florida, and Montgomery, Alabama, facilities dated from April 2011 to the present as well as records dated after November 2010 from Dr. Hartsfield should be obtained for consideration in the Veteran's appeal. The appeal is therefore REMANDED for the following actions: 1. Obtain all VA treatment records from the Pensacola, Florida and Montgomery, Alabama VA Medical Centers dated from April 2011 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file - the records must include, but are not limited to, records dated after November 2010 from Dr. Hartsfield. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After the above development has been completed and all outstanding records have been associated with the claims file, afford the Veteran a VA examination at an appropriate location to determine the current nature and severity of his total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet, since February 1, 2010. The claims file, to include a copy of this Remand, must be made available to the examiner. The examiner must review this Remand and the claims file as well as conduct any indicated evaluations, studies, and tests in order to identify the nature and severity of all current manifestations of the Veteran's service-connected total left knee arthroplasty with history of degenerative arthritis, associated with residuals, gunshot wound left tibia. The examiner should also describe the impact such disability has on his employability. Any opinion offered must be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 or by the U.S. 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs