Citation Nr: 1303359 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-04 178A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disorder, other than residuals of cold injury, claimed as secondary to shell fragment wound of the left thigh. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to June 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision denying this appeal in January 2011. In July 2012, the United States Court of Appeals for Veterans Claims (Court) set aside that decision and remanded the issue to the Board. The January 2011 Board decision also denied service connection for peripheral vascular disease of the upper and lower extremities. The Court affirmed this portion of the Board decision. Consequently, the issue is no longer on appeal. In January 2011, the Board also remanded the issues of entitlement to service connection for a low back disorder, peripheral neuropathy of the upper and lower extremities, bilateral hearing loss, tinnitus, and arthritis of the low back, knees, and hands as a result of cold injury. In July 2011, the Board granted service connection for bilateral hearing and tinnitus. It once again remanded the issue of entitlement to service connection for peripheral neuropathy of the upper and lower extremities. By way of an April 2012 rating decision, the RO granted service connection for peripheral neuropathy of the upper and lower extremities. As an award of service connection constitutes a complete grant of the claims, these three issues are no longer on appeal. In July 2011, the Board denied entitlement to service connection for arthritis of the low back, knees, and hands as a result of cold injury; and for a lumbar spine disorder, to include degenerative disc disease (DDD) as secondary to cold injury and service-connected shell fragment wound to the left thigh. Consequently, these issues are no longer on appeal. The Board notes that during the course of this appeal, the Veteran's total disability rating has increased from 40 percent to 80 percent. In this regard, the Court of Appeals for Veterans Claims held that a request for a total disability evaluation based on unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. In this case, there is no increased rating claim currently on appeal. However, since the Board finds that a TDIU claim has been raised by the record, the claim is referred to the RO for proper development and adjudication. 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). REMAND The Board's January 2011 denial of the Veteran's claim was based, in part, on a November 2009 examination report. The Veteran argued that the examination was inadequate, and the Court agreed. Specifically, the Court noted that an x-ray showed that there was a "deformity involving the left ischium which would suggest remote trauma. Recommend specific views of the left hip with pelvis." The Court noted that there was no indication in the file as to whether the recommendation for additional x-rays was followed. Additionally, the Court noted that if the "remote trauma" was due to the shrapnel wound, such might have significance in explaining the deformity and whether it contributed to problems in the left knee. The Court found that the examiner failed to discuss these matters, instead confining his remarks to examination of the scar and surrounding muscle. The x-ray report also noted that there was a "[v]ery small retained shrapnel in the posterior thigh." To the Court, this fact raised questions regarding the effect that the shrapnel (a foreign object) might have on the bloodstream or the interaction of the hip and knee. However, the examiner failed to discuss these findings. Additionally, the Court noted that the November 2009 VA examiner based his opinion, in part, on the belief that the Veteran "has no indication of significant disability of the thigh muscle." The Court found that this premise is false inasmuch as the Veteran has been service connected for moderate damage to Muscle Group XV. For the above reasons, the Board finds that a new examination is necessary to determine the etiology of the Veteran's left knee disability. Accordingly, the case is 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) (2011). Expedited handling is requested.) 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA in-person examination for the purpose of determining the nature, etiology and severity of any left knee disability. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any left knee disability shown on examination or at any time during the appeal period (since July 2007) was caused his service connected shell fragment wound of the left thigh. If not, the examiner should next state whether it is at least as likely as not that any left knee disability has been aggravated (permanently worsened beyond its natural progression) by his service connected shell fragment wound of the left thigh. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examination should include x-rays of the left hip with pelvis. The examiner should comment on whether the suspected remote trauma that resulted in a deformity involving the left ischium is the same trauma associated with the shell fragment wound to the Veteran's left thigh. The examiner should note that there is small retained shrapnel in the posterior thigh. He or she should discuss the effect that the shrapnel has on the bloodstream or the interaction of the hip and knee. Finally, the examiner should note that the disability to the Veteran's left thigh is considered moderate in severity. All opinions should be accompanied by a clear rationale. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).