Citation Nr: 1306563	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  05-21 290	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1.  Entitlement to service connection for gout of the knees.

2.  Entitlement to service connection for peripheral neuropathy of the left lower extremity.

3.  Entitlement to service connection for peripheral neuropathy of the right lower extremity.

4.  Entitlement to service connection for a low back disorder, including secondary to a service-connected right knee disability.

5.  Entitlement to a rating higher than 10 percent for arthritis of the right knee with associated limitation of motion.

6.  Entitlement to an initial rating higher than 10 percent for right knee instability.

7.  Entitlement to a temporary total rating beyond one month for the right knee disability under 38 C.F.R. § 4.30 for convalescence following surgery.


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney at Law


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1988 to January 1992.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  More specifically, an August 2004 rating decision denied the Veteran's claim for a rating higher than 10 percent for his right knee disability - which, at the time, was rated mainly on the extent there was degenerative joint disease (DJD), i.e., arthritis, postoperative/status post arthroscopy for incision and drainage of an abscess with small effusion and ganglion cyst.  Also, a subsequent December 2005 rating decision, in part, denied an additional claim of entitlement to service connection for a low back disorder, including lumbar sprain and degenerative disc disease (DDD) secondary to the already service-connected right knee disability.

In April 2008 the Board issued a decision denying these and several other claims the Veteran also had appealed.  He then appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).

During the pendency of that appeal to the Court, the RO issued a decision in September 2008 denying his claim for extension of a temporary 100 percent rating for his right knee disability beyond one month, under 38 C.F.R. § 4.30, because of treatment for a service-connected disability requiring convalescence.

In October 2009, the attorney representing him in his appeal of his other claims to the Court and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion asking the Court to vacate the Board's decision - except as concerning a claim for a gastrointestinal disorder, and to remand the several other claims the Board also had denied for further development and readjudication in compliance with directives specified.  In November 2009, the Court issued an Order granting the Joint Motion for Remand (JMR) and returned the case to the Board.

The Veteran's attorney submitted additional argument in June 2010.

After considering this additional argument and the other evidence in the file, the Board issued another decision in August 2010 again denying a rating higher than 10 percent for the arthritic component of the right knee disability (i.e., the arthritis and associated limitation of motion).  However, retroactively effective as of August 31, 2005, the Board assigned a separate 10 percent rating because the Veteran also has instability of this knee.  See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); and VAOPGCPREC 9-98 (August 14, 1998) (allowing for this assignment of separate ratings under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 and 5257, when, as here, the Veteran has both arthritis and instability of the same knee).  The Board instead remanded all of his remaining claims for service connection for a left knee disorder, low back disorder, acquired psychiatric disorder, and arterial hypertension, including as secondary to this right knee disability and/or medications prescribed for treatment of it, for further development and consideration.  The additional development of these other claims included especially obtaining additional medical comment regarding the etiologies of these additionally claimed disorders, including insofar as any potential relationship or correlation with the right knee disability and/or medications prescribed for treatment of it, and obtaining outstanding treatment records.

While these claims were on remand, the Veteran filed additional claims in October 2010 for service connection for new disabilities that he described as neuropathy of both legs and gout of the knees.

In a November 2010 decision, the RO implemented the Board's grant of the separate 10 percent rating for his right knee instability as of August 31, 2005.

Meanwhile, he appealed the Board's decision to the Court - to the extent it had denied a rating higher than 10 percent for his right knee arthritis and associated limitation of motion and in not granting an initial rating higher than 10 percent for the instability of this knee.

In August 2011, during the pendency of the appeal to the Court, the RO denied his claims of entitlement to service connection for bilateral knee gout and for peripheral neuropathy of his left and right lower extremities.  In response, he submitted a timely Notice of Disagreement (NOD) later that same month initiating an appeal of these additional claims.  See 38 C.F.R. § 20.201 (2012).

The Court later issued a single-judge, memorandum decision in March 2012 vacating the Board's decision denying a rating higher than 10 percent for his right knee arthritis and associated limitation of motion and not granting an initial rating higher than 10 percent for his right knee instability.  The Court remanded these claims concerning the right knee disability to the Board for further proceedings consistent with the Court's memorandum decision.

As concerning the claims the Board previously had remanded, rather than decided, the RO since has issued a May 2012 rating decision, on remand, granting the claims for service connection for an acquired psychiatric disorder (mood disorder due to general medical condition), left knee disorder (patellofemoral pain syndrome, chondromalacia patella), and arterial hypertension, all as associated with, meaning secondary to, the right knee disability.  See 38 C.F.R. § 3.310(a) and (b).  The RO assigned a 100 percent initial rating for the mood disorder, so the highest possible rating, a 10 percent initial rating for the left knee disorder, and a 0 percent (i.e., noncompensable) initial rating for the arterial hypertension, with all of these ratings retroactively effective from June 29, 2005.  The Veteran has not, in response, separately appealed these initial ratings and/or effective date.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD thereafter must be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability and effective date.).  Thus, these claims are no longer at issue.

Also in May 2012, the RO sent the Veteran a Statement of the Case (SOC) in response to his timely NOD regarding the denial of his claims for service connection for bilateral knee gout and for peripheral neuropathy of his left and right lower extremities.  In response to that SOC concerning these additional claims, he filed a timely Substantive Appeal (VA Form 9) later in May 2012 completing the steps necessary to perfect his appeal of these additional claims to the Board.  See 38 C.F.R. § 20.200 (2012).

As well in May 2012, the RO sent him a Supplemental SOC (SSOC) continuing to deny his claim of entitlement to service connection for a low back disorder, including as secondary to his already service-connected right knee disability.  Parts of the SSOC mistakenly reference his left knee disorder rather than his low back disorder, but it is apparent the SSOC is intending to address the claim concerning his low back disorder, especially since, as mentioned, the claim concerning his left knee disorder has been granted.  The SSOC also continued to deny extension of the temporary 100 percent rating beyond one month for his right knee disability under 38 C.F.R. § 4.30 for convalescence following surgery.  He had a temporary 100 percent convalescent rating for his right knee disability effectively from October 22, 2007, until resumption of the prior 10 percent rating for this disability (the arthritis component) as of December 1, 2007.

The claims of entitlement to service connection for the low back disorder and for higher ratings for the right knee instability and arthritis with associated limitation of motion require further development before being readjudicated.  So the Board is remanding these claims, rather than immediately deciding them.  The additional claims of entitlement to service connection for gout of the knees and for bilateral lower extremity neuropathy are possibly derivative of or related to the claims concerning the low back and right knee, so are "inextricably intertwined."  The Board, therefore, is also remanding these additional claims.

The Board instead is going ahead and deciding the remaining claim, however, concerning the request for extension beyond one month of the temporary 100 percent convalescent rating for the right knee disability under 38 C.F.R. § 4.30 ("Paragraph 30").


FINDINGS OF FACT

1.  The Veteran underwent right knee surgery on October 22, 2007, and consequently required a period of convalescence afterwards.

2.  He resultantly was awarded a temporary total (100 percent) rating for this right knee disability effectively from October 22, 2007 to November 31, 2007, whereupon, as of December 1, 2007, his prior 10 percent rating for this disability resumed.

3.  It is not shown he needed additional convalescence beyond the time he already has been compensated for.


CONCLUSION OF LAW

The criteria are not met for extension of that temporary 100 percent convalescent rating beyond November 31, 2007.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In deciding this Paragraph 30 claim, the Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to review the entire record, it does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA was signed into law in November 2000 and enhanced VA's duties to notify and assist a claimant with a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and any medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of the information and evidence the claimant is responsible for providing versus the information and evidence VA will obtain for him.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The notice requirements were met in this case by way of a letter sent to the Veteran in May 2008, prior to initially adjudicating his Paragraph 30 claim in September 2008, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) (indicating VCAA notice ideally should precede the initial adjudication of the claim).  The letter explained the type of information and evidence needed to substantiate this claim and the division of responsibilities between him and VA in obtaining this supporting evidence.  He has not made any pleading or allegation that he did not receive the required notice concerning this claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court held that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim).

As concerning the duty to assist him with this claim, the RO attempted to obtain additional records pertaining to his October 2007 right knee surgery.  He also was provided several opportunities to either submit additional treatment records, himself, or complete and submit an authorization form (VA Form 21-4142) so the RO could obtain his confidential private treatment records for him.  See, e.g., November 2007, March 2008, and January 2009 letters.  However, he did not submit additional records or return the authorization forms allowing for release of his confidential records to the RO.  The duty to assist him with his claim is not a one-way street.  If he wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The simple fact of the matter is that the RO cannot obtain his private treatment records without his authorization.  And as he has not provided this necessary authorization, or indicated that records specifically relevant to this claim need to be obtained, the Board finds that the duty to assist him in obtaining all potentially pertinent medical records has been satisfied.  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).

He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the claimant).

Analysis

The Veteran claims he is entitled to a temporary total (100 percent) rating for the 6 months following his right knee surgery in October 2007.  He therefore is requesting an extension of the temporary total rating already awarded for his right knee disability effectively from October 22, 2007, the date of his surgery, until to November 31, 2007, whereupon, as of December 1, 2007, his prior 10 percent rating for this disability resumed.  The RO assigned that temporary 100 percent rating under the provisions of 38 C.F.R. § 4.30 to compensate him for his convalescence following his surgery.

A temporary total rating may be assigned under either 38 C.F.R. § 4.29 or § 4.30.

This rating will be assigned under 38 C.F.R. § 4.29 when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days.


Whereas a total rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more.

This temporary total rating will continue for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, and an extension of 1, 2, or 3 months beyond the initial 3 months may be made.  38 C.F.R. § 4.30(b)

The Veteran underwent surgery on his right knee on October 22, 2007.  His preoperative diagnosis was medial meniscus tear of this knee, and his postoperative diagnosis was essentially the same - anterior horn medial meniscus tear of this knee and chondromalacia grade IV of the lateral femoral condyle.  The surgery was performed by a private physician, Dr. C-B.

The Veteran initially filed for a temporary total evaluation in November 2007.  That same month the RO sent him a letter, with an attached release form, asking that he complete and return the form so the RO could assist him with his claim by obtaining any outstanding private treatment records.  He did not complete and return the form, however.  In a rating decision later in November 2007 the RO granted a temporary total evaluation from October 22, 2007 to November 31, 2007.  The RO explained that, although there was no evidence of a period of convalescence since the surgery, a one-month period nonetheless was being authorized due to the nature of the right knee surgery.  The RO further indicated that a different period, so an extension of this temporary rating, could be assigned upon receipt of medical evidence showing an additional period was warranted.  The then current medical evidence in the file showed a well-healed wound with range of motion of this knee just minimally limited.  See November 2007 VA treatment record.

In February 2008 the Veteran claimed that he should be awarded a temporary total evaluation for 6 months, so even beyond November 31, 2007.  He attached a statement from Dr. C-B, his surgeon, indicating the Veteran should have at least 6 months of rest and rehabilitation prior to making other treatment options.

In March 2008 the RO sent the Veteran another letter with another attached release form to return if there were additional outstanding private treatment records needing to be obtained.  He again did not return the release form, including for Dr. C-B's records.  Instead, the Veteran indicated in April 2008 that he had no additional evidence to submit and that his claim should be decided on the evidence of record.

In a January 2009 letter to him, the RO requested that he complete and return a release form so it could obtain treatment records specifically from Dr. C-B who had done the surgery and who had submitted the subsequent statement on the Veteran's behalf.  The RO specifically stated that it needed more information regarding the Veteran's actual restrictions, limitations, and postoperative residuals following his October 2007 right knee surgery.  He again did not respond to this request, however.  And, as already explained, he cannot passively wait for help in circumstances where he may or should have information that is essential in obtaining relevant evidence.  See Wood, supra.

He was notified in the November 2007 rating decision that there was no medical evidence showing any period of convalescence was required following his surgery, but nonetheless, he was being assigned a temporary total evaluation for one month, if, for no other reason, because of the type of surgery that he had undergone.  He was also informed that, if the RO obtained medical evidence showing a different period of temporary total disability was warranted, the period could be adjusted.

He was provided several opportunities to either submit additional treatment records, himself, or to submit the necessary release form (VA Form 21-4142) so the RO could obtain his confidential private treatment records for him.  See, in particular, the November 2007, March 2008, and January 2009 letters.

Although Dr. C-B had submitted the statement suggesting the Veteran may need to continue convalescing beyond November 30, 2007, as evidenced by him proclaiming the Veteran needed 6 months of rest and rehabilitation prior to making other treatment options, Dr. C-B was not sufficiently definitive in declaring what this might or would entail.  So the RO specifically stated what additional information it needed from Dr. C-B in order to award the Veteran an additional period of temporary total evaluation.  See January 2009 letter.  The Veteran did not submit additional private treatment records from this or any other doctor or return the provided authorization form allowing this or any other private doctor to release their confidential records concerning him.

Thus, as it stands, the evidence of record does not indicate that a period of convalescence beyond the one month already granted is warranted.  The only medical evidence of record is the postoperative report from the Veteran's surgery in October 2007 and the statement from his physician, who performed that surgery, but who has not provided the required rationale as to why a 6-month period of convalescence following that surgery was warranted.  Most of the probative value of an opinion comes from its underlying reasoning or rationale, not just in the ultimate conclusion proffered.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  And here, unfortunately, there is not enough persuasive evidence in the file allowing for extension of the Veteran's temporary total rating beyond November 30, 2007.

Because, for the reasons and bases discussed, the preponderance of the evidence is against his claim, there is no reasonable doubt to resolve in his favor, so his claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

The claim of entitlement to a temporary total rating beyond the one month that ended on November 30, 2007, following the right knee surgery is denied.


REMAND

Regrettably, the remaining claims require further development before being decided on appeal.  The Board, therefore, is remanding all of the remaining claims.  Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide these remaining claims so the Veteran is afforded every possible consideration.

The Veteran's claim for his low back disorder (lumbar sprain and DDD) is predicated on the notion that it is secondary to his already service-connected right knee disability.  Service connection is permissible on this secondary basis if it is shown the service-connected right knee disability either caused or is aggravating the low back disorder.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Supporting medical evidence is generally, though not always, needed to associate a claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

An August 2005 VA compensation examiner determined it less likely than not the Veteran's low back disorder was the result of his service-connected right knee disability.  However, as noted in the June 2009 JMR, a February 2006 VA treatment record indicates the Veteran had a history of chronic right knee pain secondary to septic arthritis 16 years prior, with antalgic gait, which in turn had enabled the development of low back pain of myofacial origin with no radicular symptoms.  So further medical comment was needed to resolve these conflicting opinions for and against this claim for a low back disorder alleged to be secondary to the service-connected right knee disability.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  For this reason, the Board remanded this claim in August 2010.


The Veteran resultantly was provided another VA compensation examination in November 2011 for his claimed low back disorder.  This additional VA examiner determined the Veteran's low back disorder (intervertebral disc disease) was not directly or presumptively related to his military service as there were no complaints of back pain or back injury while in service or within a year of his discharge.  This VA examiner additionally determined this low back disorder also was not caused or aggravated by, so not secondary to, the service-connected right knee disability as there was no evidence of instability or altered gait mechanics attributable this right knee disability during the Veteran's service or within one year of his discharge that could cause a lumbar intervertebral disc disease.  This VA examiner further concluded this lumbar intervertebral disc disease is not likely aggravated by the service-connected right knee disability since there was no evidence during that examination ("on today's examination") of instability of the Veteran's right knee or altered gait mechanics to result in lumbar intervertebral disc disease.  In closing, this VA examiner added that the Veteran is presently taking indomethacin for his low back pain and, according to this examiner, there is no physiologic relationship or a known side effect of this medicine on the lower back that could cause DDD.

Even this additional opinion is inadequate, however, and does not comply with the Board's August 2010 remand directives as concerning this claim for a low back disorder.  See 38 C.F.R. § 4.2 (indicating it is incumbent upon the Board to return an inadequate examination report for correction) and Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand).  Although the Veteran did not have indication of instability or altered gait during that particular VA examination in November 2011, service connection already has been granted for instability of his right knee, so on the premise he has it, albeit even if only relatively "slight", hence, the reason for his separate 10 percent rating for this under DC 5257.  Consequently, the examiner cannot limit his findings only to those shown at the time of his personal examination of the Veteran, rather, must concede there is instability, again, even if only relatively "slight", in addressing this posited correlation between these disabilities.

As for the claims for higher ratings for the Veteran's right knee disability (both for the arthritis with associated limitation of motion component and instability component), in the June 2009 JMR the parties agreed the Board had not adequately discussed the Veteran's June 2004 VA compensation examination during which it had been noted that he had had acute daily flare ups of pain during the past year that had caused functional impairment lasting for 30 to 60 minutes.  See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The Board since has done this, however, when readjudicating this claim in its August 2010 decision.  Nevertheless, the Court's March 2012 memorandum decision, vacating even that additional decision, determined the Board did not adequately discuss the Veteran's and his attorney's contentions regarding another relevant matter, that being the adequacy of an August 2004 VA examination report.  In June 2010 the Veteran, through his attorney, had submitted written arguments to the Board for consideration contending that August 2004 VA examination was inadequate because the examiner's reasoning did not answer the question of whether there is any relationship between the Veteran's service-connected right knee disability and an admitted additional injury he has sustained to this knee since service at some indeterminate time between December 1995 when there was no MRI indication of a retear of the posterior horn of the medial meniscus of this knee and June 2004 when there was.  At most, then, argue the Veteran and his attorney, all that VA examiner actually determined is that this additional right knee injury took place sometime after the Veteran's service (sometime between December 1995 and June 2004), which is insufficient reason to necessarily disassociate that additional injury from his service-connected disability so as to not allow the impairment attributable to that retear to be considered in the rating for the service-connected right knee disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (only when there is not competent and credible evidence allowing for distinction of what measure of disability is attributable to service-connected disability versus other unrelated factors do VA adjudicators in turn have to resolve this doubt in the Veteran's favor under 38 C.F.R. §§ 3.102 and 4.3 and, for all intents and purposes, consider all claimed disability as part and parcel of the service-connected disability).


Consequently, in additional argument she since has submitted in January 2013, the Veteran's attorney maintains another VA compensation examination is needed for clarification of this, so the opinion provided is based on consideration of the Veteran's prior medical history and examinations and describes the disability, in sufficient detail, so the Board's evaluation of it is fully informed.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  Given the Court's citing of the Board's failure to address this argument in its prior August 2010 decision, the Board is remanding this claim for this necessary comment.

The Veteran's attorney also indicated in her January 2013 brief that the Veteran continues to receive treatment for his service-connected right knee disability at the local VA Medical Center (VAMC) in San Juan, Puerto Rico.  These additional records, since relevant to the claim for a higher rating for this disability, need to be obtained and associated with the claims file for consideration.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of this evidence because it is generated and maintained within VA's healthcare system and therefore deemed to be in VA's possession, even if not physically in the file).  See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3).

The Board also is temporarily deferring consideration of the remaining claims for service connection for neuropathy of the lower extremities and gout of the knees because it appears these claims are predicated on, so "inextricably intertwined" with, the other claims being remanded concerning the low back disorder, i.e., intervertebral disc disease, so the type of intervertebral disc syndrome (IVDS) contemplated by 38 C.F.R. § 4.71a, DC 5243, and right knee disability that, in part, includes arthritis under DC 5003.  See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another.  These types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters).  See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected,"" the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together).

As it stands, it is unclear whether any neuropathy the Veteran may be experiencing in his lower extremities is related or attributable to his low back disorder (IVDS), and, in turn, whether the low back disorder is secondary to his service-connected right knee disability.  It also is presently unclear whether the gout he claims to be affecting his knees, in actuality, is the arthritis affecting his right knee in particular or disability affecting his left knee that also already has been determined to be service-connected.  The Board will have more information at its disposal to assist in making these additional determinations once the additional development of the claims is completed on remand.

Accordingly, the claims are REMANDED for the following additional development and consideration:

1.  Ask the Veteran to identify all sources of VA and non-VA (private) medical health care he has received for his right knee and low back disabilities in recent years.  This especially includes, but is not limited to, additional treatment he has received for his right knee disability, in particular, at the local VAMC in San Juan.  See the recent brief from his attorney received in January 2013 making reference to the need to obtain these additional VA treatment records.


If the records identified are in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), whereas subpart (c)(1) controls if they are not.  Make as many attempts to obtain identified records as are required to comply with this VA regulation, depending on who has custody of the records.  Also appropriately notify the Veteran if unable to obtain any identified records.  38 C.F.R. § 3.159(e)(1).

Also associate the report of the June 2004 VA spine examination with the claims file.  See August 2004 reference to June 2004 examination.

2.  Upon receipt of all additional records, if still available, have the November 2011 VA examiner that evaluated the Veteran concerning his claim for a low back disorder provide supplemental comment, i.e., an addendum opinion, concerning the likelihood (very likely, as likely as not, or unlikely) that his service-connected right knee disability either has caused or is aggravating the low back disorder, which this examiner previously indicated is IVDS.

If this examiner still believes, as he previously concluded, there is no such cause-and-effect correlation between the low back disorder and this service-connected right knee disability, then it cannot be solely on the premise the Veteran did not have objective clinical indication of instability in his right knee or altered gait mechanics during the November 2011 VA examination since service connection already has been established for right knee instability and a separate 10 percent rating assigned, so concession there is instability of this knee, albeit even if only relatively "slight", hence, this commensurate rating under DC 5257.

Therefore, the examiner not only has to consider times when, as an example, instability has not been shown in this knee, but also the occasions when it has, even if not during his particular evaluation of the Veteran.

The examiner also is reminded to, just as he did previously, comment both on whether there is causation and aggravation.

If, for whatever reason, this examiner is no longer available to provide this additional comment, then have someone else do it that is qualified to make these necessary determinations.  In this eventuality, the Veteran may need to be reexamined, but this is left to the designee's discretion as to whether another examination is needed or this additional comment can be provided merely by reviewing the evidence in the claims file.

Whoever is designated to provide this additional comment must discuss the underlying medical rationale or reasoning for the opinion, if necessary citing to specific evidence in the file to support conclusions.


3.  Also upon receipt of all additional records, schedule a VA compensation examination to reassess the severity of the Veteran's right knee disability.

a) The claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including those mentioned in this REMAND, must be reviewed by the examiner for the history of this disability.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

b) The examiner should perform all necessary diagnostic testing and evaluation.

c) Additional medical comment is needed concerning whether the additional post-service right knee injury (retear of the posterior horn of the medial meniscus of this knee) the Veteran sustained on some undetermined occasion between December 1995 and June 2004, so after his military service had concluded in January 1992, nonetheless is attributable to his service-connected right knee disability.  In other words, the mere occurrence of that additional injury after his service ended cannot be the sole reason for disassociating that injury and any consequent impairment from his service-connected right knee disability unless there is reason or justification for making this distinction.  So, if there is, the examiner must provide discussion of this.

d) The examiner must also measure range of motion of the right knee on flexion and extension.  In reporting the results of range-of-motion testing, the examiner must indicate whether there is any objective evidence of pain or painful motion, including on account of arthritis, and specify at what point in the range of motion pain sets in.  

The examiner must also discuss the extent of instability of the right knee in terms of whether it is slight, moderate or severe.

e) As well, the examiner must indicate whether there is incoordination, weakened movement, or premature or excess fatigability on use of this knee, including during prolonged or repetitive motion.  And, if feasible, the examiner should try and quantify the extent of additional functional impairment this causes, including during prolonged or repetitive use of this knee or when the Veteran's symptoms are most problematic ("flare ups").

f) The examiner must also provide an opinion concerning the impact of the Veteran's right knee disability (and other service-connected disabilities) on his ability to work in a job that could be considered substantially gainful versus just marginal in comparison, when considering his level of education, prior work experience and training, but not his advancing age or impairment attributable to disabilities that are not service connected.

It is essential the examiner discuss the medical rationale for all opinions expressed, if necessary citing to specific evidence in the file.  If the examiner cannot provide a response without resorting to mere speculation, he/she must not only indicate this but, more importantly, discuss why a response is not possible or feasible, such as by specifying whether additional information, evidence or other procurable data is needed, there are multiple possible reasons, with none more prevalent than another, etc.  In other words, merely saying he/she cannot respond will not suffice.

4.  Then readjudicate the remaining claims in light of this and all other additional evidence.  If these claims continue to be denied, send the Veteran and his attorney another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


These claims 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs