Citation Nr: 1305889 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 06-31 865A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for cholesterol. 2. Entitlement to an effective date earlier than May 29, 2009, for the grant of service connection for cervical myelopathy, Brown-Séquard syndrome with quadriparesis, status post anterior discectomy, fusion, and plating at C3-4. 3. Entitlement to a rating in excess of 30 percent for residuals of left tibial tubercle fracture with osteoarthritic changes and chronic chondromalacia of the knee. 4. Entitlement to a rating in excess of 30 percent for recurrent subluxation of the left knee. 5. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 6. Entitlement to service connection for a bilateral eye disorder, including diabetic retinopathy, associated with diabetes mellitus, type II. 7. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 8. Entitlement to service connection for a bilateral shoulder disability, to include secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 9. Entitlement to service connection for gout, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 10. Entitlement to service connection for hypertension, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 11. Entitlement to service connection for hypertensive heart disease, to include as secondary to hypertension. 12. Entitlement to service connection for osteomyelitis, to include as secondary to service-connected left tibial tubercle fracture with osteoarthritis and chondromalacia and recurrent subluxation of the left knee. 13. Entitlement to service connection for mumps. 14. Entitlement to service connection for erectile dysfunction, to include as secondary to mumps. 15. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ. 16. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 29, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from October 1954 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2009, March 2010, and June 2011by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In the March 2009 rating decision, the RO continued the 30 percent ratings assigned for recurrent subluxation and status post fracture of the left knee. The RO also denied entitlement to service connection for bilateral carpal tunnel syndrome, hypertension, diabetes mellitus, hypertensive heart disease, diabetic eye disability, cholesterol, mumps, bilateral shoulder condition, erectile dysfunction, and gout as well as entitlement to SMC for loss of use of a creative organ. In May 2009, the Veteran submitted additional evidence pertaining to the issues of increased ratings for his left knee. In March 2010, the RO again continued the 30 percent ratings for the left knee disabilities and also denied service connection for osteomyelitis. In September 2010, the Board, in part, granted service connection for a cervical spine disability, and remanded the remaining issues for further development. In the June 2011 rating decision, the RO effectuated the Board's grant of service connection and assigned a 20 percent evaluation for cervical myelopathy, effective May 29, 2009. The Veteran thereafter perfected his appeal with respect to the effective date assigned. The issues of entitlement to service connection for lumbar spine disability and right knee disability as well as entitlement to a TDIU were also on appeal and remanded by the Board in September 2010. However, in a June 2011 rating decision, service connection was granted for a right knee condition and, in a May 2012 rating decision, service connection for degenerative disc disease of the lumbar spine was granted. As this was a full grant of the benefits sought on appeal, these issues are no longer in appellate status. The June 2011 rating decision also granted a TDIU effective May 29, 2009. Regarding the TDIU, the Board recognizes that a request for such a benefit, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the Board notes that the Veteran's claim for a TDIU was granted effective May 29, 2009. However, as he has alleged that his service-connected left knee disabilities rendered him unable to work and his claims for increased ratings have been pending since May 2007, the issue of entitlement to a TDIU prior to May 29, 2009, is before the Board pursuant to Rice. Therefore, such issue has been included on the title page of this decision. In October 2012, the Board remanded the remaining issues on appeal to afford the Veteran a Board hearing at the local RO, which was held before the undersigned Veterans Law Judge in November 2012. A copy of the hearing transcript has been associated with the claims file. At the Board hearing, additional VA treatment records were associated with the Veteran's Virtual VA electronic record. In a November 2012 statement and in his hearing testimony, the Veteran waived RO consideration of this evidence. 38 C.F.R. § 20.1304(c)(2012). Therefore, the Board may properly consider such newly received evidence. The Board recognizes that the RO has specifically denied service connection for diabetic retinopathy. However, VA treatment records showed no findings of retinopathy; rather, the Veteran has been diagnosed with glaucoma. The U. S. Court of Appeals for Veterans Claims (Court) has determined that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). Therefore, the Board has recharacterized the issue on appeal as set forth on the front page of this decision to encompass all possible eye disorders. In the September 2010 remand, the Board also referred the issues of entitlement to service connection for left thigh atrophy and entitlement to a clothing allowance. While the issue of entitlement to left thigh atrophy was adjudicated in the June 2011 rating decision, it does not appear that the issue of entitlement to a clothing allowance has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 issues of entitlement to service connection for diabetes mellitus, type II, bilateral eye disorder, bilateral carpal tunnel, bilateral shoulder disability, gout, hypertension, hypertensive heart disease and osteomyelitis; entitlement to increased ratings for left knee disabilities; and entitlement to a TDIU prior to May 29, 2009, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a November 2012 statement and at the November 2012 Board hearing, the Veteran stated that he no longer wished to pursue his appeal regarding the issue of entitlement to service connection for cholesterol. 2. The Veteran did not file a formal or informal claim for entitlement to service connection for a cervical spine disability prior to May 29, 2009. 3. Resolving all doubt in favor of the Veteran, residuals of mumps, including testicular atrophy and erectile dysfunction, are etiologically related to the mumps he suffered during his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran, as it relates to the issue of entitlement to service connection for cholesterol, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for assignment of an effective date prior to May 29, 2009, for the grant of service connection for cervical myelopathy, Brown-Séquard syndrome with quadriparesis, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 3. The criteria for a grant of service connection for residuals of mumps, including testicular atrophy and erectile dysfunction, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for entitlement to SMC based on loss of use of a creative organ have been met. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. §§ 3.102, 3.350(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal of Claim for Service Connection for Cholesterol Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran in a November 2012 statement and at the November 2012 Board hearing withdrew his appeal as to the issue of entitlement to service connection for cholesterol. Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed without prejudice. II. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As the Board's decision herein to grant service connection for residuals of mumps, including testicular atrophy and erectile dysfunction, as well as entitlement to SMC for loss of use of a creative organ, constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. With respect to the claim for an earlier effective date, the claim arises from an appeal of the initial effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Relevant to the Veteran's claim for an earlier effective date, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim. However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his original claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Additionally, in November 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the November 2012, the Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the reasons why the Veteran believed that he is entitled to an earlier effective date for service connection for his neck disability. Moreover, the Veterans Law Judge explicitly explained why the current effective date for the Veteran's cervical spine disability had been assigned. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. In this regard, the Veteran testified that all of his treatment is through VA and updated treatment records were obtained at the time of the hearing. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). III. Earlier Effective Date The Veteran contends that he is entitled to an effective date prior to May 29, 2009, for the grant of service connection for cervical myelopathy, Brown-Séquard syndrome with quadriparesis. Specifically, he asserts that the effective date should be July 30, 2008, the date he injured his cervical spine. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The Veteran filed an informal claim for compensation for his service-connected cervical spine disability, which was date-stamped as received by the RO on May 29, 2009. Subsequently, the Veteran submitted private treatment records, which showed that he injured his neck on July 30, 2008. He had an MRI done in August 2008, which showed C3-4 central disc protrusion and C4-5 protrusion with central canal narrowing. Subsequently, the Veteran underwent surgery that same month. In subsequent statements and at the Board hearing, the Veteran asserted that he provided the private treatment records to the VA hospital for the express purpose of filing a claim for service connection. Nevertheless, VA treatment records during this period showed no indication of any intent on the part of the Veteran to file a claim for service connection. The Veteran has also relied on a November 2008 VA examination report to address the severity of his left knee during which he reported falling and requiring subsequent surgery on his neck. However, again, there is nothing in the history provided by the Veteran to indicate his intent to file a claim for benefits. VA is not required to conjure up issues not raised by the claimant. Brannon v. West, 12 Vet. App. 32, 35 (1998). In addressing the Veteran's assertion that he believed he was filing a claim when he submitted records to the VA Medical Center (VAMC), the Board observes that the Veteran has been filing claims for compensation benefits with the RO dating back to 1983. Thus, it would be reasonable to assume that he has full knowledge of the claims process, including the understanding that claims for service connection compensation benefits are filed at the RO as opposed to VAMC. Importantly, the Veteran has not alleged that he filed a claim with the RO prior to May 29, 2009. In sum, it is clear from the record that the Veteran showed no intent to file a claim for a cervical spine disability until May 29, 2009. After reviewing the totality of the evidence, the Board must find that the RO did not receive an application for compensation benefits prior to the informal claim submitted in May 2009. The Board has reviewed the claims file, including the VA treatment records and VA examination reports, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection prior to the May 2009 claim. The Board recognizes the Veteran's argument that he should be assigned an effective date of July 30, 2008, as that is when he injured his neck. However, such argument is insufficient to establish that the Veteran is entitled to an earlier effective date under governing laws and regulations. The effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). While sympathetic to the Veteran's belief that an earlier effective date is warranted; for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to May 29, 2009, for the granting of service connection. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than May 29, 2009. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). IV. Service Connection for Mumps and Erectile Dysfunction The Veteran is also seeking service connection for mumps and erectile dysfunction. As the Veteran is claiming that his erectile dysfunction is related to the mumps that he suffered from in service, and given that the same evidence addresses both of these issues, the Board had addressed these matters in the same analysis. 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; 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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). Service clinical records showed that in June 1955 the Veteran was treated for parotitis epidemic and acute orchitis due to mumps. Post service VA treatment records showed a diagnosis of erectile dysfunction. In support of his claim, the Veteran submitted a handwritten medical opinion which indicated that the Veteran had been found to have testicular atrophy. The examiner indicated that after reviewing the Veteran's service records, it appeared that the Veteran suffered from parotitis mumps and complicating orchitis, which caused the testicular atrophy. Further, it appears that an April 2009 private opinion from the same private examiner also stated that clinical records showed that the Veteran developed parotitis after visiting his brother in Virginia who had mumps. A short time thereafter, the clinical records documented left orchitis and the Veteran developed testicular atrophy, a well known potential complication of mumps. The Veteran later developed impotence at a relatively young age. It was the examiner's opinion that the testicular atrophy caused by the mumps contributed to a premature testosterone deficiency and impotence. The Board finds that when resolving the benefit of the doubt in favor of the Veteran, service connection for residuals of mumps, including testicular atrophy erectile dysfunction, is warranted. Service clinical records clearly showed that the Veteran had mumps in service. Importantly, after reviewing the clinical records, an April 2009 private opinion clearly determined that the Veteran's testicular atrophy was due to his mumps and led him to develop impotency. Therefore, the record documents mumps in service, the Veteran has current residuals of mumps, including testicular atrophy and erectile dysfunction, and an April 2009 private opinion links the current residuals to service. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board must conclude that the evidence is in at least a state of equipoise and service connection for residuals of mumps, including erectile dysfunction, is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Special Monthly Compensation With regard to the Veteran's claim for entitlement to special monthly compensation for loss of use of a creative organ, the Board notes that the Veteran has been granted service connection for residuals of mumps, including testicular atrophy and erectile dysfunction herein. The Board notes that VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114 (k). Loss of use of one testicle is established when (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the Veteran, establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1)(i). Moreover, entitlement to SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction. Therefore, in light of the grant of entitlement to service connection for erectile dysfunction, the Board also finds that entitlement to SMC for this disability is in order as well. See 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a). ORDER The appeal pertaining to the issue of entitlement to service connection for cholesterol is dismissed. An effective date prior to May 29, 2009, for the grant of service connection for cervical myelopathy, Brown-Séquard syndrome with quadriparesis, is denied. Service connection for residuals of mumps, including testicular atrophy and erectile dysfunction, is granted. Entitlement to SMC based on loss of use of a creative organ is granted. REMAND Relevant to the remaining claims on appeal, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide his claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has claimed entitlement to increased ratings for his left knee disabilities. In this regard, he has been assigned a 30 percent disability rating for recurrent subluxation of the left knee under Diagnostic Code 5257 as well as a 30 percent disability rating for residuals of left tibial fracture with osteoarthritis changes of the left knee under Diagnostic Code 5262. He alleges that, as he wears a brace, he is entitled to a 40 percent rating under Diagnostic Code 5262. Also, as noted previously, the Veteran claims that his left knee disabilities render him unable to work. As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding private treatment records. In this regard, the Veteran testified at his November 2012 hearing that, in addition to receiving treatment through the VA system, he also saw a private physician, Dr. Campo, for his left knee disabilities. In fact, he indicated that he had seen Dr. Campo the previous month. There are no recent records from Dr. Campo contained in the claims file. Therefore, a remand is necessary in order to obtain such outstanding records. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his left knee disabilities. In this regard, the Board observes that he was last examined by VA in May 2011. However, at his November 2012 Board hearing, the Veteran testified that such disabilities have increased in severity. He specifically indicated that, approximately a year previously, a knee replacement had been recommended. Therefore, as the evidence suggests that the Veteran's left knee symptomatology may have increased in severity since the May 2011 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, the Veteran has alleged that, as his left knee requires a brace at all times, he is entitled to a 40 percent rating pursuant to Diagnostic Code 5262, which allows for such a rating based on impairment of the tibia and fibula resulting in nonunion with loose motion, requiring a brace. As such, an examination is necessary in order to determine whether the Veteran requires a brace based on functional loss consistent with such symptomatology or as a result of his recurrent subluxation. Moreover, as indicated in the Introduction, the issue of entitlement to a TDIU prior to May 29, 2009, is currently before the Board. Therefore, in connection with the Veteran's VA examination for his left knee disabilities, the VA examiner should be requested to render a retrospective medical opinion regarding the impact the Veteran's service-connected disabilities, to include his left knee disabilities, had on his employability prior to May 29, 2009. In this regard, the Board observes that a retrospective medical opinion may be required to determine whether, and if so when, it can be concluded that the Veteran's service-connected disabilities alone prevented him from obtaining and maintaining substantially gainful employment. See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Veteran is also seeking service connection for diabetes mellitus type II, bilateral eye disorder, bilateral carpal tunnel, bilateral shoulder disability, gout, hypertension, hypertensive heart disease, and osteomyelitis. The Veteran has asserted that these disorders are secondary to his service-connected left knee disabilities. Specifically, he has claimed that his diabetes mellitus with bilateral eye disorder, gout, hypertension with hypertensive heart disease and osteomyelitis are due to his inability exercise and do physical activities because of his knees. He has also claimed that his bilateral shoulder disability and bilateral carpal tunnel syndrome are due to the need to use assistive devices for his left knee. In support of his claim, a handwritten private opinion determined that because of the Veteran's left knee injury and prolonged periods of inactivity, the Veteran developed obesity, which greatly contributed to the development of diabetes. The Veteran has not been afforded a VA examination with respect to these issues. In light of the Veteran's claims and the private opinion, the Board finds that a VA examination is necessary to determine whether these disabilities are secondary to the Veteran's service-connected left knee disabilities in accordance with 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995). Lastly, as relevant to all claims, the Veteran has indicated that he has been receiving continuing treatment for his disabilities at the VA Medical Center. The Veteran's Virtual VA electronic record includes additional VA treatment records dated from December 2012. As VA medical records are constructively of record and must be obtained, the AOJ should obtain VA treatment records from December 2012 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. After obtaining the appropriate authorization from the Veteran, obtain his treatment records pertaining to his left knee disabilities from Dr. Campo. All reasonable attempts should be made to obtain any identified 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. The AOJ should associate all VA treatment records from December 2012 to present with the record. All reasonable attempts should be made to obtain any identified 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). 3. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to current nature and severity of his service-connected left knee disabilities. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. In offering any assessments or opinions, the examiner should take into account all evidence of record, to include both the lay and medical evidence. Following an interview with the Veteran, a review of the evidence of record, and a physical examination, the examiner is requested to address the following inquiries: (A) The examiner should describe current nature and severity of all manifestations of the Veteran's service-connected left knee disabilities. (B) The examiner is further requested to determine whether the Veteran requires a brace based on functional loss consistent with impairment of the tibia and fibula resulting in nonunion with loose motion, requiring a brace, or as a result of his recurrent subluxation. (C) The examiner is also requested to provide an opinion as to whether it is at least as likely as not that Veteran's service-connected disabilities of recurrent subluxation of the left knee; residuals of left tibial tubercle facture with osteoarthritic changes and chronic chondromalacia of the knee; degenerative disc disease of the lumbar spine; residuals of cervical myelopathy, Brown-Sequard syndrome with quadriparesis, status post anterior discectomy, fusion, and plating at C3-C4; tender scar of the left knee; right knee condition; and left thigh atrophy, singularly or jointly, rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience prior to May 29, 2009. In offering such opinion, the examiner should not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice-connected disabilities). If the examiner finds that the Veteran was unemployable due to such service-connected disabilities prior to May 29, 2009, he or she should indicate when exactly the Veteran was rendered unemployable, if possible. The examiner is advised that he or she may not consider a disability service-connected prior to the effective date of the grant of service connection. Specifically, the examiner may not consider the service-connected recurrent subluxation of the left knee prior to June 22, 2000; residuals of left tibial tubercle facture with osteoarthritic changes and chronic chondromalacia of the knee prior to June 22, 2000; degenerative disc disease of the lumbar spine prior to May 29, 2009; residuals of cervical myelopathy, Brown-Sequard syndrome with quadriparesis, status post anterior discectomy, fusion, and plating at C3-C4, prior to May 29, 2009; tender scar of the left knee prior to June 22, 2000; right knee condition prior to May 31, 2007; and left thigh atrophy prior to May 31, 2007. All opinions expressed by the examiner should be accompanied by a complete rationale. 4. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the etiology of his diabetes mellitus, type II, bilateral eye disorder, bilateral carpal tunnel, bilateral shoulder disability, gout, hypertension, hypertensive heart disease and osteomyelitis. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following: (A) Whether it is at least as likely as not (a 50% or higher degree of probability) that diabetes mellitus type II, bilateral eye disorder, bilateral carpal tunnel, bilateral shoulder disability, gout, hypertension, hypertensive heart disease and osteomyelitis are proximately due to, or caused by, the Veteran's service-connected left knee disabilities. (B) Whether it is at least as likely as not (a 50% or higher degree of probability) that diabetes mellitus type II, bilateral eye disorder, bilateral carpal tunnel, bilateral shoulder disability, gout, hypertension, hypertensive heart disease and osteomyelitis have been aggravated by the Veteran's service-connected left knee disabilities. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the Veteran's assertions that his bilateral shoulder and carpal tunnel syndrome are related to the need to use assistive devices as well as the claim that his inactivity has led to the other disabilities. 5. 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 issues on appeal should be readjudicated based on the entirety of the evidence. If the issues remain 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs