Citation Nr: 1308003 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-42 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease and degenerative joint disease of the lumbar spine and spondylosis of the thoracic spine (thoracolumbar spine disability). 2. Entitlement to an increased rating in excess of 10 percent for a right knee medial meniscus tear with patellofemoral arthritis, status post arthroscopic surgery with plica release (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1973 to September 1994. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which continued (1) a 10 percent rating for degenerative disc disease and degenerative joint disease of the lumbar spine and spondylosis of the thoracic spine; and (2) a 10 percent rating for right knee medial meniscus tear with patellofemoral arthritis status post arthroscopic surgery with plica release. In March 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record and has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims for increased ratings for the spine and right knee disabilities. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran contends that his service-connected spine and right knee disabilities warrant higher evaluations in excess of 10 percent. During the March 2012 hearing, the Veteran testified that the pain in his knee does not allow him to stand for very long and weight bearing has become an issue. The Veteran also testified that his knee locks, gives out, and occasionally swells causing reduced range of motion. The Veteran further testified that in March 2012 he heard a pop in his right knee and was treated at the Amarillo VA medical center. See VA treatment notes dated March 10, 2012 to March 12, 2012. As for his service-connected spine disability, the Veteran testified that he is limited in standing and sitting. The Veteran reported that he is on medication and wears a back brace. The Veteran further testified that his back spasms and he experiences pain and burning in the back of his leg every day. On remand, the RO/AMC should readjudicate the Veteran's currently assigned 10 percent evaluation for his thoracolumbar spine disability with consideration of whether separate ratings are warranted for any neurological abnormalities associated with the service-connected spine condition. The Veteran was afforded VA examinations (knee and spine) in March 2009. Because the Veteran's last VA examinations were completed approximately four years ago, and because the Veteran has indicated that his knee and spine disabilities have worsened since his last evaluations, the Board finds that updated VA examinations are needed to fully and fairly evaluate the Veteran's claims. See 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, 6 Vet. App. 377, 381 (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support a decision on appeal for an increased rating). The Board finds that a remand for new VA examinations is necessary to assess the current severity of the Veteran's service-connected right knee and spine disabilities. All VA treatment records from March 12, 2012 to the present should be obtained and associated with the claims file and/or the Virtual VA electronic file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request all VA medical records pertaining to treatment of the Veteran (not already of record) dated from March 12, 2012 and associate them with the record. 2. Thereafter, schedule the Veteran for a VA spine examination to determine the severity of his service-connected thoracolumbar spine disability, including any associated neurological impairment. The VA examiner should be provided with the relevant documents in the Veteran's claims file. Any opinion provided should be supported by a full rationale. The examiner should specifically: a) Provide the range of motion of the thoracolumbar spine (extension, forward flexion, left and right lateral flexion, and left and right rotation), expressed in degrees, as well as state whether there is any favorable or unfavorable ankylosis of the back. b) Determine whether the back (thoracolumbar spine) exhibits weakened movement, excess fatigability, incoordination, pain, or flare-ups attributable to the service connected thoracolumbar spine disability. These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. For example, the examiner should report the point in the range of motion when pain becomes apparent. The examiner should also provide an opinion as to the duration of any incapacitating episodes of intervertebral disc syndrome that the Veteran has experienced during the past 12 months, and the evidence used to form that opinion. c) Identify any associated neurological abnormalities associated with the service-connected thoracolumbar spine disability. Provide an opinion as to whether any neurological symptomatology equates to 'mild,' 'moderate,' 'moderately severe,' 'severe,' incomplete paralysis, or complete paralysis of any nerve. Identify any affected nerve, and state the severity of the impairment of the nerve affected. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. The AMC/RO should arrange for the Veteran to undergo a VA knee (orthopedic) examination to ascertain the nature and severity of the service-connected right knee disability. The relevant documents in the claims folder should be made available to the VA examiner for review. The examiner should specifically: a) Determine the range of motion in the right knee in degrees and clearly indicate what each number represents. The VA examiner should determine whether the right knee disability is manifested by painful motion, weakened movement, excess fatigability or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. b) Identify whether there is lateral subluxation or lateral instability of the right knee, and if present, express an opinion as to the severity of such subluxation or lateral instability (slight, moderate, or severe). The VA examiner should report whether the functional impairment due to the disability of the right knee is severe, moderate or slight. c) Report on whether there has been removal of the semilunar cartilage that is symptomatic or if there is semilunar cartilage dislocation with frequent episodes of "locking," pain, and effusion into the joint. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue of (1) entitlement to an increased rating in excess of 10 percent for degenerative disc disease and degenerative joint disease of the lumbar spine and spondylosis of the thoracic spine, with consideration of whether separate ratings are warranted for any associated neurological abnormalities; and (2) entitlement to an increased rating in excess of 10 percent for right knee medial meniscus tear with patellofemoral arthritis status post arthroscopic surgery with plica release, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case, and should afford them the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).