Citation Nr: 1306928	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  07-24 507A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a bilateral upper extremity neurological disability to include peripheral neuropathy and left carpal tunnel syndrome, claimed as secondary to herbicide exposure.

2.  Entitlement to service connection for a neurological disability of the neck and left ear to include peripheral neuropathy, claimed as secondary to herbicide exposure.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to an increased rating for right total knee replacement residuals, currently evaluated as 60 percent disabling.

5.  Entitlement to an increased rating for left total knee replacement residuals, evaluated as 30 percent disabling, prior to April 27, 2011, and as 60 percent disabling from that date.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The Veteran had active service from January 1966 to December 1968.

This appeal came before the Board of Veterans' Appeals (Board) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  Jurisdiction over the Veteran's claims file currently resides with the St. Petersburg, Florida RO.  

The Board remanded the Veteran's appeal in February 2011.  While the appeal was in remand status, the RO increased the evaluation of the Veteran's left knee replacement residuals to 60 percent, effective April 27, 2011.  

The Board notes that a Virtual VA e-file exists for this Veteran.  This e-file was reviewed for new or relevant information; however, a review of the e-file revealed that it contained entirely duplicative information, such as past rating decisions and correspondence, as well as VA examination reports, that is already in the claims file.

The issues of entitlement to service connection for neurological disability of the neck and left ear, as well as for hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
 

FINDINGS OF FACT

1.  Resolving doubt in the Veteran's favor, neurological disabilities of the bilateral upper extremities are related to his service-connected diabetes mellitus.

2.  Right knee replacement residuals are manifested by severe painful motion and weakness.

3.  Left knee replacement residuals are manifested by severe painful motion and weakness.


CONCLUSIONS OF LAW

1.  Neurological disabilities of the bilateral upper extremities are proximately due to the service-connected diabetes mellitus.  38 C.F.R. § 3.310(a) (2012).

2.  The criteria for an evaluation in excess of 60 percent for right knee replacement residuals have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2012).

3.  For the period prior to April 27, 2011, the criteria for an evaluation of 60 percent for left knee replacement residuals have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2012).

4.  The criteria for an evaluation in excess of 60 percent for left knee replacement residuals have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (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, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

A letter dated in November 2005 advised the Veteran of the evidence necessary to support a claim for service connection on a secondary basis, as well as for increased ratings.  He was asked to submit or identify relevant evidence.  The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence.  

A March 2006 letter advised the Veteran of the manner in which VA determines disability ratings and effective dates.  

Subsequent letters advised the Veteran of the status of his claims.  

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file.  The Veteran was afforded a VA examination of his bilateral knee disability.  The Board finds that the examination was adequate in that it was performed by a medical provider who reviewed the Veteran's pertinent history, interviewed the Veteran, and conducted complete physical examinations prior to rendering his conclusions.  Neither the appellant nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations.

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Service Connection for Neurological Disability of the Neck and Left Ear

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability.  38 C.F.R. § 3.310 (2012).  This includes disability made chronically worse by service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service- connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation.  For this reason, and because the Veteran's claim was filed before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002).

The Veteran seeks service connection for neurological disabilities of the bilateral upper extremities.  

EMG/NCS testing in June 2006 revealed moderate left carpal tunnel syndrome.  EMG testing in October 2008 revealed moderate right carpal tunnel syndrome.  

On VA examination in April 2011 the Veteran reported constant numbness and tingling in his bilateral fingertips and an electric shock sensation in his forearms.  

On VA examination in April 2011 the diagnosis was bilateral carpal tunnel syndrome.  The examiner listed various risk factors for the development of carpal tunnel syndrome, diabetes mellitus and obesity among them.  She indicated that the Veteran was diabetic and obese and that hence, those two risk factors alone would be more likely implicated in the development of carpal tunnel syndrome.  

Having carefully reviewed the record concerning this claim, the Board concludes that service connection for neurologic disability of the bilateral upper extremities is warranted.  Here, there is evidence showing diagnoses of carpal tunnel syndrome.  The symptoms have also been diagnosed as peripheral neuropathy.  The Veteran is in receipt of service connection for diabetes.  Further, the April 2011 VA examiner concluded that the diabetes was more likely implicated in the development of carpal tunnel syndrome.

The reasonable doubt doctrine requires that there be a "substantial doubt and "one within the range of probability as distinguished from pure speculation or remote possibility."  38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  In light of the conclusion of the VA examiner, who has drawn a relationship between the service-connected diabetes and carpal tunnel syndrome, the Board finds that the evidence is in relative equipoise with respect to the question of whether a neurologic disability of the bilateral upper extremities is proximately due to the service-connected diabetes mellitus.  As such, service connection for a neurologic disability of the bilateral upper extremities is granted.  

	Ratings for Knee Replacement Residuals

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.  The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  38 C.F.R. §§ 4.1, 4.2 (2008); see also Francisco v. Brown, 7 Vet. App. 55 (1994).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  In this case the Board has concluded that the disabilities have not significantly changed and that uniform evaluations are warranted for the period considered.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

By way of history, the Board observes that the Veteran underwent total knee replacement of the left knee in March 2002 and of the right knee in September 2003.  The current appeal stems from the Veteran's claim which was received by VA in April 2005.

VA treatment records reflect that following total left knee replacement in March 2002, the Veteran reported in August 2002 that he had been doing very well.  He reported residual stiffness in his knee bur reported that he was performing stretching exercises at home.  He reported that he was able to walk to do other activities.  He indicated that pain relief was a very big issue for him, and that overall he was very satisfied with the total knee replacement.

On VA examination in May 2003, the examiner noted that the Veteran had undergone total left knee replacement in March 2002.  The Veteran reported that he had some improvement in his arthritic pains but that he continued to have constant pain below his knee.  He indicated that the pain was 8/10 in intensity and that he also had extreme morning stiffness as well as swelling at the end of the day.  He endorsed daily flare-ups with pain at a 10/10 level, occurring at the end of the work day.  Physical examination revealed active motion of the left knee from 100 degrees of flexion to zero degrees of extension.  Passively, flexion was to 105 degrees and extension was to zero degrees.  The examiner noted that there was pain at the end points of passive range of motion, with grimacing and grabbing at the knee.  He indicated that pain had the major functional impact during flare-ups.  There was no ankylosis.  The prosthesis appeared to be stable.

On rehabilitation consultation in October 2003, the provider noted that the Veteran's total left knee replacement had been very successful.  The Veteran reported being happy with the left knee replacement.  The provider indicated that the Veteran had undergone total right knee replacement the previous week.  A physical therapy plan was initiated.

In January 2005 the Veteran reported that he had fallen three days previously.  Range of motion of the right knee lacked five degrees of extension and he had 95 degrees of flexion.  On another visit in January 2005, the ligaments of the knee felt stable to stress and were nontender.

On VA physical therapy initial evaluation in January 2005 the Veteran reported pain in his right knee for about one year.  He related that he had experienced difficulty with it since the total knee replacement in September 2003.  He reported that he had fallen in January 2005.  He was tender to palpation at the ilio-tibial band and lateral hamstring insertion.  He also reported pain superior to the patella that he stated had begun following his fall.  

On VA examination in January 2005, the Veteran's history was reviewed.  The examiner noted that the Veteran had experienced progressively worsening giving way of his right knee, especially with stairs.  The Veteran noted that he had fallen seven times.  He reported that he was able to stand for 15 to 30 minutes and that he could walk one to three miles.  Right knee tendonitis was diagnosed.

In November 2005 the Veteran reported that he had been issued braces in attempt to stabilize his knees.  He related that he had continued to fall, causing other injuries.  

On VA examination in November 2005 the Veteran reported that his left knee had given out twice and his right knee had given out eight times.  Physical examination revealed evidence of abnormal weight bearing, the examiner noting an abnormal shoe wear pattern.  Right knee range of motion testing revealed 90 degrees of flexion with pain at 90 degrees.  Extension of the right knee lacked three degrees with pain at that point.  Left knee flexion was to 100 degrees with pain at 100 degrees.  Extension on the left was to zero degrees with pain at zero degrees.  There was no additional limitation of motion on repetitive use.  Physical examination did not reveal instability of the joints.  

On VA examination in April 2011 the Veteran complained of pain of 8/10 intensity in his knees.  He stated that he had suffered frequent falls and had begun to use a power scooter.  He endorsed giving way and pain.  He indicated that he was unable to stand for more than a few minutes and unable to walk more than a few yards.  The examiner indicated that there was objective evidence of pain on active motion, with right knee range of motion from zero to 50 degrees and left knee range of motion from zero to 70 degrees.  The examiner further stated that left knee extension was further limited following repetitive use, indicating flexion to 50 degrees.  There was no ankylosis.  

Diagnostic Code 5055 provides criteria for evaluating impairment arising from the prosthetic replacement of a knee joint.  For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent.  A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). The minimum rating for prosthetic knee replacement is 30 percent.

Ankylosis of the knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees.  If ankylosis is in flexion between 20 and 45 degrees, a 50 percent evaluation is warranted.  If ankylosis is extremely unfavorable at an angle of 45 degrees or more, a 60 percent evaluation is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5256.

Instability of the knee is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257.  Under that Diagnostic Code, a 10 percent evaluation is warranted where impairment of the knee involves slight subluxation or lateral instability.  A 20 percent evaluation is warranted where the impairment is moderate, and a 30 percent evaluation will be assigned where the impairment is severe.

A noncompensable evaluation is appropriate where flexion is limited to 60 degrees.  A 10 percent rating is warranted where flexion of the leg is limited to 45 degrees and a 20 percent rating is warranted where flexion is limited to 30 degrees.  Where flexion is limited to 15 degrees, a 30 percent rating is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

A noncompensable evaluation is warranted where extension of the leg is limited to 5 degrees; a 10 percent rating is appropriate where extension of the leg is limited to 10 degrees; and a 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is for assignment for extension limited to 20 degrees, a 40 percent evaluation is warranted for extension limited to 30 degrees, and a 50 percent evaluation is for application where extension is limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees.  38 C.F.R. § 4.71, Plate II (2012).

Having reviewed the evidence pertaining to this claim, the Board initially concludes that for the period prior to April 27, 2011, an evaluation of 60 percent for the left knee replacement residuals is warranted.  In that regard, the record reflects that as early as May 2003, the Veteran complained of severe pain in his left knee, as well as extreme morning stiffness and swelling.  Moreover, while it appears that the right knee disability is the main cause of the Veteran's repeated falls, he did report in November 2005 that his left knee had given out.  Therefore, the Board finds that a 60 percent evaluation is applicable for this earlier period.

With respect to whether evaluations in excess of 60 percent are warranted, the Board has determined that they are not.  As discussed above, ankylosis is not present.  In any event, the maximum evaluation for such disability is 60 percent, which is the equivalent of the evaluations currently assigned.  No other diagnostic code pertaining to the knee allows for a higher evaluation than the currently assigned 60 percent.  The Board has also considered whether separate compensable evaluations might apply under the other various criteria for evaluation of knee disability and result in a higher evaluation; however, there is no compensable limitation of extension that might be separately evaluated, and flexion has been measured, at worst as 50 degrees, which would result in no more than a 10 percent evaluation.  In addition, the Veteran has reported that he falls as a result of the service-connected disabilities.  The Board has therefore considered whether a separate rating is warranted for lateral instability or recurrent subluxation pursuant to Diagnostic Code 5257.  However, the medical evidence indicates that the Veteran is stable to varus/valgus and VA examiners have found he does not have instability.  The Board has considered the Veteran's reports of experiencing falls and finds that he is competent to report that he falls.  However, the Board finds most probative the medical evidence, which specifically tested for instability, and found that such was not present.  Accordingly, the Board finds that the 60 percent evaluations are appropriate.

The Board accepts that the Veteran has experienced functional impairment, pain, and pain on motion.  See DeLuca.  The Board also finds the Veteran's own reports of symptomatology to be credible and has considered the functional impact of painful motion at 50 degrees of flexion.  Nevertheless, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under diagnostic codes pertinent to the knee when considering such factors as pain, weakness, and incoordination.  In essence, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the evaluations currently assigned are appropriate.

It is also noted that the supplemental statement of the case dated in July 2012 did not address the left knee issue.  However, the Board's consideration of this issue does not result in prejudicial error as the July 2012 rating decision, which increased the Veteran's rating for the left knee to 60 percent disabling, considered the evidence developed since the remand and determined that a higher rating was warranted but only from April 27, 2011.  In light of the information contained in the rating decision, which is akin to that which would have been included in the supplemental statement of the case, no prejudice results to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  He still had an opportunity to respond to both the supplemental statement of the case and the rating decision.  It is noted that his representative provided supplemental argument on his behalf in November 2012.  

      Extraschedular Consideration

The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards."  38 C.F.R. § 3.321(b)(1).  Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral knee replacement residuals.  The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate.  In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria.  Severe painful motion or weakness is specifically contemplated.  Thus, the Board determines that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that the criteria for submission for referral for the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).

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ORDER

Entitlement to service connection for a neurologic disability of the bilateral upper extremities is granted.

For the period prior to April 27, 2011, an evaluation of 60 percent is granted for left knee replacement residuals, subject to the controlling regulations applicable to the payment of monetary benefits.

Entitlement to an evaluation in excess of 60 percent for right knee replacement residuals is denied.

Entitlement to an evaluation in excess of 60 percent for left knee replacement residuals is denied.


REMAND

In its February 2011 remand, the Board directed that the Veteran be afforded VA examinations of his claimed neurological disability of the left ear and neck, and hypertension.  

With respect to the claimed neurological disability of the neck and left ear, the examiner was asked to provide an opinion to include addressing the question of whether any identified neurological disorder of the neck and/or left ear was etiologically related to or increased in severity beyond its natural progression due to the Veteran's service-connected disabilities.  Here, the April 2011 examiner indicated that there was subjective dysesthesias/neuralgia of the left ear without neurologic abnormalities on examination.  She then listed recognized risk factors for the development of carpal tunnel syndrome and concluded that diabetes and obesity would be more likely to be implicated in the development of carpal tunnel syndrome and or subjective left ear dysesthesias/neuralgia.  Her inclusion of subjective left ear dysesthesias/neuralgia in this opinion, following her statement that examination revealed no neurologic abnormalities, confuses the issue of whether there is a currently present neurologic disability involving the left ear and/or neck.  The Board therefore concludes that the examination report is incomplete and inadequate for the purpose of deciding this claim.  In this regard, the Board notes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Here, the examination was inadequate because the examiner first indicated that there were no neurologic abnormalities of the left ear on examination, but then provided an etiology opinion regarding the reported subjective symptoms.     

As to the claimed hypertension, the examiner was asked to provide an opinion regarding whether hypertension was etiologically related to or increased in severity beyond its natural progression due to the Veteran's service-connected disabilities.  The April 2011 VA examiner did not provide such an opinion, indicating only that the Veteran's hypertension was not caused by or a result of time in service.  Here, the examination was inadequate in light of the examiner's failure to fully address the questions set forth by the Board's February 2011 remand.  

As the Veteran receives medical care through VA, medical records dating from May 2012 should be obtained on remand.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record).

In light of the above discussion, the Board finds that additional development is necessary.  Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records dating from May 2012.  

2.  Then, schedule the Veteran for a VA neurological examination to determine the etiology of any currently present neurologic disability of the neck or left ear.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed, and their results reported.  

The examiner should be advised of the Veteran's service-connected disabilities.

Following review of the claims file and examination of the Veteran, the examiner should identify all currently present neurologic disabilities involving the neck and/or left ear.  The examiner should then provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present neurologic disability of the neck and/or left ear began in or is related to any disease or injury in service.  Please provide a complete explanation for the opinion.

Also, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current neurologic disability of the neck and/or left ear was caused by any service-connected disability.  Please provide a complete explanation for the opinion.

Finally, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current neurologic disability of the neck and/or left ear was aggravated (i.e., worsened) beyond the natural progress by any service-connected disability.  Please provide a complete explanation for the opinion.

3.  Schedule the Veteran for a VA examination to determine the etiology of his hypertension.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed, and their results reported.  

The examiner should be advised of the Veteran's service-connected disabilities.

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension began in or is related to service, to include as a result of presumed agent orange exposure therein.  Please provide a complete explanation for the opinion.

Also, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension was caused by any service-connected disability.  Please provide a complete explanation for the opinion.

Finally, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension was aggravated (i.e., worsened) beyond the natural progress by any service-connected disability.  Please provide a complete explanation for the opinion.

4.  Then, after ensuring the examination reports are adequate and undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.   If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

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).




______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs