Citation Nr: 1308243 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-08 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Whether new and material evidence has been received to reopen a service connection claim for hypertension, and if so, whether service connection is warranted. 3. Entitlement to a rating higher than 30 percent for dysthymia. 4. Entitlement to a rating higher than 10 percent for residuals of fracture and dislocation of the right elbow. 5. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee. 6. Entitlement to an initial rating higher than 10 percent for right knee laxity. 7. Entitlement to an initial rating higher than 20 percent for degenerative joint disease of the lumbar spine with sciatica. 8. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1977 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2009, the RO granted service connection for degenerative joint disease of the lumbar spine with sciatica assigning a 20 percent rating, effective July 11, 2008; granted degenerative joint disease of the right knee assigning a 0 percent rating, effective July 11, 2008; denied an increased rating for dysthymia disorder rated at 10 percent at that time; decreased the disability rating for the right elbow disability from 10 to 0 percent, effective July 11, 2008; and denied service connection for sleep apnea. The RO granted an increased rating of 30 percent for dysthymia disorder in a November 2009 rating decision, effective July 11, 2008. The RO also found clear and unmistakable error in the March 2009 decision regarding the reduction of disability rating for the right elbow disability and the assignment of a 0 percent rating for degenerative joint disease of the right knee. The RO reinstated the 10 percent rating for the right elbow, effective July 11, 2008 and also assigned a 10 percent rating for degenerative joint disease of the right knee, effective July 11, 2008, as well as a separate 10 percent rating for laxity of the right knee, effective July 11, 2008. Finally, in a November 2010 rating decision, the RO denied service connection for hypertension, finding that new and material evidence had not been received to reopen the claim. In a September 2012 statement of the case the RO reopened the service connection claim for hypertension on the basis of new and material evidence, but continued to deny the claim on the merits. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for hypertension. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. The issues of a claim to reopen service connection for a left knee disorder and a service connection claim for a right hip disorder, secondary to the right knee disability have been raised by the record via testimony submitted by the Veteran at the Board hearing in October 2012. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for sleep apnea, and increased ratings for disabilities of the right knee, lumbar spine, and right elbow, an increased rating for dysthymia disorder, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran's original service connection claim for hypertension was denied in a May 1995 rating decision. The Veteran did not appeal this rating to the Board. 2. The evidence received since the May 1995 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for hypertension. 3. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed hypertension was incurred in service. CONCLUSIONS OF LAW 1. The May 1995 RO decision that denied entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the May 1995 RO decision that denied entitlement to service connection for hypertension is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens service connection for hypertension on the basis of new and material evidence and grants service connection for hypertension on the merits. Other than the issues that are addressed in the Remand section below, this represents a complete grant of the benefit sought on appeal. Therefore, no discussion of VA's duty to notify and assist is necessary. The Veteran's claim of entitlement to service connection for hypertension was originally denied by a May 1995 RO decision on the grounds that there was no record of hypertension that is chronic and subject to service connection. The RO noted that the service treatment records noted a few instances of elevated blood pressure readings but that the service treatment records were completely negative for clinical findings, diagnosis or treatment of hypertension or any other chronic cardiovascular disability or disease. On his separation examination the Veteran presented a history of elevated blood pressure readings, which were affected by stress. The examination showed a blood pressure reading of 110/70. A March 1995 VA examination after service showed blood pressure readings of 116/80, 118/78, 116/78, and 116/80. The Veteran indicated on examination that he had been told his blood pressure was high. The Veteran was notified of the RO's decision but he did not file an appeal. Therefore, the May 1995 RO decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted an application to reopen service connection for hypertension in April 2010. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a), and therefore service connection can be granted by establishing a continuity of symptomatology since service under 38 C.F.R. § 3.303(b). In addition, hypertension may be presumed to have been incurred in service if it became manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decisionmakers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In this regard, the Board notes that, in a recent case, the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Additional evidence obtained since the May 1995 RO decision includes a diagnosis of hypertension noted on a VA treatment record in July 2006. The Veteran also testified at a Board hearing that they wanted him to take hypertension medication in service but he did not like the side effects of the medication; and that he was first prescribed hypertension medication in 1998. Evidence of a current hypertension diagnosis was not previously considered by VA and supports the presence of a current disability. Also, the Veteran's testimony that he was prescribed medication for hypertension a few years after his retirement from service suggests a possible relationship to the elevated blood pressure readings during his military service. When considering the new evidence, combined with other evidence of record, there is, at least, a reasonable possibility of substantiating the claim. Thus, the evidence meets the standard noted in Shade for reopening the claim based on new and material evidence. As the additional evidence is new and material, the claim of entitlement to service connection for hypertension is reopened and the claim will be adjudicated on the merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), under Diseases of the Arteries and Veins. These must be confirmed by readings taken two or more times on at least three different days. Id. The service treatment records show the Veteran had a blood pressure reading of 160/110 in February 1986 and readings of 144/100 and 140/102 on February 2, 1987 and February 4, 1987, respectively. The service treatment records also show another blood pressure reading of 144/100 in February 1987, and readings of 142/90 and 130/100 on undated treatment records. One of the undated record notes that the Veteran was considered obese due to dietary indiscretion and it was recommended that he lose weight and adhere to a better diet. In May 1992, the Veteran's blood pressure reading was 146/90 and the assessment notes rule out hypertension. A June 1992 treatment record shows the Veteran's blood pressure was 134/102. The assessment included hypertension. Blood pressure checks were to continue for two weeks and then he was to follow up for further treatment. At the separation examination in September 1994 the Veteran noted a history of high blood pressure, which was worse when stressed. The Veteran testified that he was under a lot of stress in the military and that they wanted to start him on blood pressure medication but he did not like the side effects. He further stated that his blood pressure stayed high after service. He testified that he first started taking hypertension medication in 1998 but these records are not in the file. The medical records show that after service, the Veteran underwent VA examination in March 1995. The Veteran stated that he was told his blood pressure was high in service but that he had lost weight and now his blood pressure was normal. Readings that day were not in the hypertensive range. A May 2004 VA treatment record notes a blood pressure reading of 158/92; and in January 2006 the Veteran had blood pressure readings of 140/97 and 138/90. The Veteran was diagnosed with hypertension in July 2006. It was noted that exercise, a low fat diet, and weight loss was recommended. The Veteran filed his present service connection claim in April 2010. Virtual VA records show that a September 2011 treatment record notes that the Veteran's major medical problems include hypertension. He also is shown as having an active prescription for lisinopril (an angiotensin-converting enzyme inhibitor used in the treatment of hypertension). See Dorland's Illustrated Medical Dictionary 951 (28th edition 1994). On review of the evidence of record, the Board finds that the Veteran incurred a hypertension disability in service. The medical evidence establishes that the Veteran was treated for high blood pressure in service and given a diagnosis of hypertension in service, and continued to be treated for hypertension after his discharge from military service. Additionally, treatment records dated in 2011 after the Veteran's most recent service connection claim for hypertension in 2010 show a continued diagnosis of hypertension with continued medication to treat this disease. Therefore, the record shows that the Veteran's hypertension has been a chronic condition since service. Moreover, the Board observes that the Veteran has attested to his long-term treatment for hypertension, which, as a lay person, he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay evidence can be competent to establish diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms supports a later diagnosis by a medical professional). Further, the Board considers the Veteran's assertions of a continuity of hypertension symptomatology since service to be credible in the absence of any evidence expressly negating those assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). As hypertension is considered a chronic disease under 38 C.F.R. § 3.309(a), service connection can be granted for this disease by establishing continuity of symptomatology since service under 38 C.F.R. § 3.303(b). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). There is no VA examination of record addressing whether the Veteran's present diagnosis of hypertension is related to the hypertension shown in his military service. Nonetheless, the Board considers it significant that the Veteran was initially diagnosed with high blood pressure in the hypertensive range and assessed as having hypertension in 1992 during his military service. Moreover, he has since undergone clinical testing that establishes a current diagnosis of hypertension in support of his service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that, in a claim for service connection, the requirement of a 'current disability' is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). Where, as here, the record contains both in-service and post-service diagnoses of a chronic disorder (hypertension), no medical opinion as to etiology is necessary to grant service connection. See Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008). Thus, even without a medical opinion relating the Veteran's currently diagnosed hypertension to his military service, the Board finds that the evidence weighs in favor of his claim. As noted above, when, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). Because there is a medical finding of high blood pressure in the hypertensive range and a finding of hypertension in service, and subsequent medical findings of a hypertension thereafter, including during the appeals period, as well as credible supporting evidence of a chronic hypertension disorder since service, the Board concludes that the evidence supports the grant of service connection for hypertension. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for hypertension is granted. ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened. Entitlement to service connection for hypertension is granted. REMAND The Veteran seeks service connection for sleep apnea. The record shows he was first diagnosed with sleep apnea in December 2007. The Veteran testified that he relates his sleep apnea to service because he had a rigorous schedule and did not get much sleep. The service treatment records are negative for any findings of sleep apnea. The Veteran is competent to state that he did not get proper sleep during his nearly 20 years of military service. The determination of whether the Veteran's present sleep apnea is related to his lack of sleep in service is a medical determination. Therefore, the Board finds that a VA examination is necessary to resolve this claim. The Veteran also seeks entitlement to higher ratings for his service-connected right knee disabilities, dysthymia disorder, right elbow disability, and back disability. The Veteran was last evaluated for these disabilities in October 2008. The orthopedic examination notes the Veteran had diagnoses of lumbar degenerative disc disease with radiculopathy, right knee strain, and residuals of right elbow fracture. No painful motion was objectively noted. The psychiatric examination indicated no suicidal ideation. The Veteran indicated that he had suicidal thoughts in the past but not at present. Evidence since that time suggests a worsening of the Veteran's service-connected right knee and lumbar spine disabilities, as well as his dysthymia disorder. An April 2010 private treatment record notes an impression of advanced osteoarthritis of the lumbar spine. A letter from his treating physician in March 2010 also notes that the Veteran had advanced degenerative changes in the right knee and that a right knee arthroplasty was considered. The Veteran submitted testimony at the Board hearing that he had since received an artificial knee in May 2010. He also indicated that he had contemplated suicide a couple of times. The fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Given that the record demonstrates a potential increase in severity of the Veteran's right knee and back disabilities, as well as his dysthymia disorder since he was last evaluated in October 2008, additional examination is warranted on remand. Additionally, records of the right knee surgery in 2010 should be obtained. Regarding the Veteran's increased rating claim for the residuals of fracture to the right elbow, the Veteran has testified that this disability, along with his other service-connected disabilities might render him unemployable. See October 2012 Board hearing transcript p. 23. Specifically he indicated that the injury to his elbow in service caused nerve damage and numbness in his hands. He noted that he used to work on medical equipment repair and last worked in 2008 after being laid off. He asserted that he could not work anymore because he could stand for prolonged periods of time or pick up anything heavy. Although a separate claim for entitlement to a total disability rating for individual unemployability (TDIU) was not appealed to the Board, and was denied by the RO in March 2009, it is raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). An assessment of whether the Veteran is considered unemployable due to his service-connected disabilities should be made. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied, with respect to whether the Veteran is entitled to a TDIU. 2. Ask the Veteran to submit or provide the relevant information for VA to obtain records of the right knee replacement surgery in May 2010. Specifically the Veteran should be asked to sign the proper release for treatment records from Jacksonville Orthopedic Institute and Dr. H. Lynn Norman. Thereafter, if the Veteran complies with the RO's requests, make efforts to obtain these records and document all attempts. If efforts to obtain the additional records are unsuccessful, notify the Veteran of this and explain any further actions VA will take regarding his claims. 38 C.F.R. § 3.159(c)(1), (e)(1). 3. Make arrangements to obtain relevant VA treatment records from the Gainesville VAMC dated since June 2012 noting psychiatric and orthopedic records concerning the dysthymia, right elbow, right knee, and back treatment. If efforts to obtain the additional records are unsuccessful, make a formal finding on the unavailability of these additional records and notify the Veteran of this and explain any further actions VA will take regarding his claims. 38 C.F.R. § 3.159(c)(2), (e)(1). 4. Following completion of the above, schedule the Veteran for the appropriate VA examination to address the etiology of the Veteran's sleep apnea. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his present sleep apnea had its clinical onset during active service or is related to any in-service disease, event, or injury (including not getting enough sleep in service). The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Schedule the Veteran for an appropriate examination to determine the severity of his service-connected dysthymia disorder. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected dysthymia disorder. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's dysthymia disorder on his social and occupational adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's dysthymia disorder consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. Finally, the examiner should state whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's dysthymia disorder renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Schedule the Veteran for the appropriate VA examination to address orthopedic impairment associated with his right knee disabilities. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected right knee disability, including the following: (a) State whether there is any associated scarring (to include as a result of the right knee replacement) of the right knee; and if so, describe whether there is any impairment associated with the scarring, whether the scars are adherent to underlying tissue, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. (b) Determine whether the Veteran has chronic residuals consisting of severe painful motion or weakness in the right knee as a result of the total knee replacement. (c) Conduct range of motion testing of the right knee, specifically noting whether - upon repetitive motion of the Veteran's right knee - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (d) State whether there is impairment of the femur with malunion or nonunion of the shaft or anatomical neck of the femur with or without loose motion. (e) State whether there is right knee ankylosis. (f) State whether there is any evidence of recurrent subluxation or lateral instability of the right knee, and if so, to what extent. (g) Identify any neurological pathology related to the service-connected knee, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. (h) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's service-connected right knee renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. Schedule the Veteran for the appropriate VA examination to address orthopedic impairment associated with his right elbow disability. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected right elbow disability, including the following: (a) State whether there is any associated scarring of the right elbow; and if so, describe whether there is any impairment associated with the scarring, whether the scars are adherent to underlying tissue, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. (b) Conduct range of motion testing of the right elbow, specifically noting whether - upon repetitive motion of the Veteran's right elbow - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right elbow is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (c) State whether there is right elbow ankylosis. (d) Identify any neurological pathology related to the service-connected right elbow, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. (e) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's service-connected right elbow renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 8. Schedule the Veteran for the appropriate VA examination to address orthopedic impairment associated with his lumbar spine disability. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected lumbar spine disability, including the following: (a) Conduct range of motion testing of the lumbar spine, specifically noting whether - upon repetitive motion of the Veteran's lumbar spine - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (b) State whether there is lumbar spine ankylosis. (c) Identify any neurological pathology related to the service-connected lumbar spine, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. (d) State whether the Veteran's service-connected degenerative joint disease of the lumbar spine with sciatica causes intervertebral disc syndrome, and if so, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had 'incapacitating episodes,' defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (e) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's service-connected lumbar spine disability renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 9. Ensure the examiners' opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 10. Then readjudicate the claims, to include TDIU, in light of the additional evidence, including all relevant evidence submitted since the November 2009 Statement of the Case (SOC). If the claims are not granted to the Veteran's satisfaction, send him and his representative another SSOC and provide time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the remaining claims. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs