Citation Nr: 1307033 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-07 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected disability. 2. Entitlement to a disability rating greater than 20 percent for service-connected lumbosacral strain. 3. Entitlement to a disability rating greater than 20 percent for service-connected patellofemoral syndrome of the right knee. 4. Entitlement to a disability rating greater than 20 percent for service-connected patellofemoral syndrome of the left knee. 5. Entitlement to a disability rating greater than 20 percent for service-connected limitation of extension of the left knee associated with patellofemoral syndrome of the left knee. 6. Entitlement to a disability rating greater than 10 percent for service-connected tinnitus. 7. Entitlement to a compensable disability rating for service-connected hearing loss of the right ear. 8. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from June 1986 to March 1990 and from January 1991 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In December 2011, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the December 2011 hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted disabilities. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In a Report of General Information (VA Form 21-0820), dated in April 2012, it is indicated that the Veteran raised the issue of Clear and Unmistakable Error (CUE) in an August 16, 2011, rating decision that denied a temporary total disability rating because of left knee treatment requiring convalescence. Thus, this issue has been raised by the record, but has not 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. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 service connection for a psychiatric disorder, and an increased disability rating for the service-connected low back and bilateral knee disabilities, and entitlement to a TDIU, 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. During the December 2011 hearing and in correspondence dated in December 2011, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal as to the issue of a disability rating greater than 10 percent for service-connected tinnitus. 2. The Veteran's hearing loss of the right ear is not shown to be productive of worse than level I hearing acuity in the right ear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran as to the issue of a disability rating greater than 10 percent for service-connected tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a compensable disability rating for hearing loss of the right ear have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in November 2008, May 2009, June 2009, December 2009, June 2011, and March 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability, and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the December 2011 hearing and in correspondence dated in December 2011, the Veteran indicated that he wished to withdraw his appeal as to the issue of a disability rating greater than 10 percent for service-connected tinnitus, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. Hearing Loss of the Right Ear Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). In rating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. If impaired hearing is service-connected in only one ear, as is the case here, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will generally be assigned a Roman Numeral I. 38 C.F.R. § 4.85(f). The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the October 2003 rating decision granting service connection for hearing loss of the right ear, there is no evidence received within one year which relates to the disability rating assigned for the service-connected right ear disability. Thus, with respect to the Veteran's claim seeking an increased disability rating, the September 2009 rating action is the proper rating decision on appeal. A VA audio examination report dated in July 2009 shows that the Veteran's hearing acuity was evaluated in conjunction with his request for an increased disability rating. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 35 55 33.75 Speech audiometry revealed speech recognition ability of 94 percent in the right. The diagnosis was mild sensorineural hearing loss of the right ear. A private audiology evaluation report from Audiology Associates of Spartansburg, P.A., dated in October 2011, shows that the Veteran reported a gradual decrease in his hearing since service. Audiological evaluation was said to reveal mild to moderately severe sensorineural hearing loss in the right ear. Speech reception thresholds were found to be in good agreement with the pure tone averages. Based on these results, the use of amplification in the right ear was recommended. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 30 50 30 Speech audiometry revealed speech recognition ability of 96 percent in the right. Under Table VI of the regulations, when evaluated in both July 2009 and October 2011, the Veteran's hearing acuity in the right ear was Level I. Because service-connection is not in effect for the left ear, under 38 C.F.R. § 4.85(f), the hearing acuity in the left ear is also considered to be Level I. Under Table VII of the regulations, such a combination of hearing impairment warrants a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). The Board has considered whether a higher disability rating might be warranted based on exceptional patterns of hearing impairment. However, the Board finds that a greater disability rating is not warranted under Table VIa as the Veteran's pure tone threshold in each of the foregoing examinations was not 55 decibels or more at each of the four specified frequencies in the right ear. Additionally, given that the evidence does not reflect a simultaneous puretone threshold of 30 decibels or less at 1000 Hertz and a puretone threshold of 70 decibels or more at 2000 Hertz, a higher disability rating pursuant to section 4.86(b) is also not warranted. 38 C.F.R. §§ 4.85, 4.86 (a) (2012). Based on this record, the Board finds that the evidence does not demonstrate entitlement to a compensable disability rating for the Veteran's right ear hearing loss. Even having considered whether a higher disability rating might be warranted based on exceptional patterns of hearing impairment, there is no time during the stated period which the Veteran's disability warranted a higher disability rating. As indicated above, the assignment of disability ratings for hearing impairment are derived by the mechanical application of the Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann, 3 Vet. App. at 345. There is very little judgment involved in determining the rating. The law's provisions are clear and precise, and audiometric testing results are dispositive evidence for a claim for a higher disability rating for hearing loss. Moreover, given the slight degree of right ear hearing loss clinically shown, there is no indication that the Veteran's hearing loss has a significant effect upon his occupation and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board has considered the Veteran's lay assertions to the effect that his right ear hearing loss is of such severity as to warrant a compensable disability rating. While the Veteran is generally considered competent to report symptoms, a lay person such as the Veteran is not competent to offer an opinion on complex medical questions, such determining the clinical severity of hearing loss. As explained above, for VA rating purposes the severity of hearing loss is based on mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. The Veteran does not maintain that he has the ability or equipment to make such findings himself, nor has he identified any evidence or medical source which has made findings which comport with the assignment of a compensable evaluation for left ear hearing loss during the appeal period. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Essentially, in this case, it is beyond the Veteran's competence to determine the severity of his right ear hearing loss, himself. Accordingly, there is no basis for awarding the Veteran a disability rating other than the currently assigned noncompensable disability rating at any time over the course of this appeal. See Hart, 21 Vet. App. at 505. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Extra-schedular Consideration Finally, the Board finds that the Veteran's right ear hearing loss does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's right ear hearing loss is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER The appeal as to the issue of a disability rating greater than 10 percent for service-connected tinnitus is dismissed. A compensable disability rating for hearing loss of the right ear is denied. REMAND Unfortunately, a remand is required in this case as to the issues of service connection for a psychiatric disorder, and an increased disability rating for the service-connected low back and bilateral knee disabilities, and entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). As to the issue of service connection for a psychiatric disorder, to include as secondary to a service-connected disability, apparently, by rating action dated April 20, 2012, the RO denied the Veteran's claim. In reviewing the actual rating decision located in the Veteran's paper claims file, as well as in the Virtual VA paperless claims file, a narrative of the issue considered and the decision rendered was not provided. In the accompanying notice letter dated April 23, 2012, the RO does note that service connection for generalized anxiety disorder (claimed as associated with lumbosacral strain) was denied and provides a synopsis of the reasons for the denial. A VA Form 21-0820 dated in April 2012, in pertinent part, shows that the Veteran was said to have contacted the RO inquiring as to the status of this claim. The Veteran was told that the claim was denied, and that if he would like to appeal he would have to submit a notice of disagreement. The Veteran indicated that he will send the request to the RO soon. The Board construes this correspondence from the Veteran as a timely filed notice of disagreement as to the issue of service connection for a psychiatric disorder, to include as secondary to a service-connected disability, that was denied by the RO in April 2012. As such, the Veteran is entitled to a Statement of the Case which fully addresses the foregoing issue. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The issue shall then be returned to the Board after issuance of the Statement of the Case only if the Veteran files a timely substantive appeal. The Veteran must be informed that the submission of a substantive appeal as to the issue has not been accomplished, and he must be specifically advised as to the length of time he has to submit a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). During his December 2011 hearing, the Veteran asserted that his low back and bilateral knee disabilities had increased in severity since his most recent VA examinations in December 2008 and July 2009. He also indicated that he had since undergone knee surgery on both his right and left knees. As it has been more than three years since the most recent VA examinations of the low back and knees and as there has been intervening surgical treatment of the right and left knees, updated VA examinations are required to evaluate the current severity of the low back and right and left knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Additionally, for disabilities rated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has recently instructed that in applying these regulations VA shall obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner shall also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). In Mitchell, the Court found an examination to be inadequate where the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." In the instant case, the additional medical findings must identify at what point during the range of motion the Veteran experiences any limitation of motion that was specifically attributable to pain. As to the issue of entitlement to a TDIU, the claims being remanded herein are inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The other issues must be addressed by the RO before the Board renders a decision on the TDIU claim. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that have not yet been associated with his claims file. All records obtained shall be associated with his claims file. 2. The RO/AMC shall issue a Statement of the Case addressing the issue of service connection for a psychiatric disorder, to include as secondary to a service-connected disability. The Veteran and his representative shall be informed of the period of time within which he must file a Substantive Appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the aforementioned claim should not be certified to the Board. 3. The RO/AMC shall schedule the Veteran for a VA orthopedic and neurologic examination in order to determine the current nature and severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner must comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explains the reasons therefor. The examiner is also directed to specifically comment on the following: (a) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (c) Whether the Veteran has intervertebral disc syndrome of the lumbar spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within the last 12-month period. The examiner must also identify any associated neurological deformities associated with the service-connected lumbar spine disorder, to include any radiculopathy or neuropathy of the extremities, and any associated bladder or bowel impairment. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 4. The RO/AMC shall schedule the Veteran for an appropriate VA examination in order to determine the current nature and severity of his right and left knee disabilities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. The examiner is requested to review all pertinent records associated with the claims file, particularly records of surgical treatment for each knee, and offer comments and an opinion as to the severity of each disability. The examiner must conduct all necessary testing of the right and left knees, including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when each knee is used repeatedly over a period of time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner must specify whether the Veteran has any instability in either knee and, if so, the severity thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. The examiner must identify all current manifestations of any residual scars of each knee. If, in addition to scarring, any muscle and/or neurological impairment is identified, the examiner shall indicate whether each such impairment constitutes a distinct disability capable of being separately rated. The examiner should provide a description of the scars of each knee, to include the following: the size of the scar in square inches or square centimeters; whether any scar is superficial (not associated with underlying soft tissue damage); whether any scar is deep (associated with underlying soft tissue damage); whether any scar is unstable (with frequent loss of covering of skin over the scar); whether any scar is well-healed, painful, tender, adherent, and/or ulcerated. The examiner shall also review pertinent aspects of the Veteran's medical and employment history, and comment on the effects of the right and left knee disabilities upon his ordinary activity and the effect, if any, on his current level of occupational impairment. An opinion should be provided concerning the impact of the disabilities on the Veteran's ability to work, to include whether it is productive of severe economic inadaptability. A complete rationale for any opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 5. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs