Citation Nr: 1308935 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-35 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for a right knee disorder currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a low back disorder to include as secondary to service-connected disability. 3. Entitlement to service connection for peripheral neuropathy to include as secondary to service connected disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1988 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Oklahoma. In October 2012, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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 Reasons for Remand-To obtain a VA examination for disability evaluation and to obtain a nexus opinion The Right Knee Disorder The Veteran is seeking an increased evaluation for his service-connected right knee disorder. He was last examined for disability evaluation in December 2008. At that time, the examiner noted that the Veteran had some discomfort with repetitive testing; however the examiner did not document repetitive motion in degrees. The examiner found that there was no instability. During his October 2012 hearing, the representative argued that the December 2008 examination was inadequate since the Veteran was not evaluated for functional loss. The representative pointed out that repetitive motion was not documented and that since the December 2008 VA examination, outpatient records show complaints of right knee buckling. The Veteran testified that he has locking and has been issued a brace for stability. His representative has requested that the case be remanded for a current examination. The Board acknowledges that VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). In claims for an increased rating, the current level of disability is most important in determining the appropriate rating. Although age of an examination is not, in itself, an automatic reason for remand, a current examination is necessary in determining the overall disability picture. The United States Court of Appeals for Veterans Claims (Court) has repeatedly held that examinations provided to evaluate the extent of a Veteran's functional loss of the musculoskeletal system under rating codes based on limitation of motion must determine whether any pain found to be present could significantly limit functional ability during flare-ups or upon repetitive motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205 -06 (1995). These determinations, should, if feasible, be portrayed in terms of the additional range-of-motion loss due to pain on use or flare-ups. Id. Where this information is not provided in the examination report, or the report does not include an explanation for why this information could not feasibly be provided, the examination report is inadequate for rating purposes. Mitchell, 25 Vet. App. at 32. The December 2008 VA examination failed to address all of these criteria. As the Veteran has specifically alleged that he has symptoms not previously documented, and that his functional impairment has not been properly evaluated, a new examination, addressing the current severity of service-connected right knee disorder is warranted. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The VA examination must determine whether any pain found to be present could significantly limit the Veteran's functional ability during flare-ups or upon repetitive motion of the right knee, expressed in degrees and also determine the current severity of his disorder. As such, a remand is necessary to assess the current severity of his disorder. Low back disorder and peripheral neuropathy Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with the decision of the United States Court of Appeals for Veterans Claims (Court) in Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the appeal. The Veteran contends that service connection is warranted for a low back disorder and for peripheral neuropathy which he argues are due service-connected disorders. He is service connected for internal derangement of the right knee with degenerative arthritis, left knee degenerative arthritis, and degenerative joint disease of the left first metatarsopheal joint. He also is service-connected for hammertoes and hallux valgus. Additionally during the course of this appeal he has argued that his peripheral neuropathy is due to his low back disorder. The Veteran has been diagnosed with degenerative joint disease of the lumbar spine. (See, e.g., an examination of December 2008). He has also been diagnosed with peripheral neuropathy. (See e.g.VA examination of December 2008). Thus in order the Veteran to prevail on both issues, there must be a nexus established between a service-connected disability and his current disorders. When the Veteran was examined by VA in 2008, the claims file was reviewed. The Veteran reported back pain since 2005. The Veteran was examined, and the examiner diagnosed degenerative joint disease of the lumbar spine. The examiner stated that in reviewing a 2005 VA examination, the Veteran had a normal gait and the current examination documents a symmetrical gait. It was stated that there was no evidence of asymmetry in the Veteran's gait, no evidence of instability of the gait and no evidence of increased side-to-side motion in his gait. The examiner reported that based on this information, it is less likely as not that the patient's low back condition is directly caused or permanently aggravated by his bilateral knee condition or bilateral service-connected foot conditions. A private clinician statement was received by VA in December 2012. The examiner stated that in his professional opinion it is likely that the Veteran's service-connected knee disorders have a direct relationship causing problems with his low back. He referred to medical records which he had reviewed. He stated that when looking at the Veteran's history of low back pain and knee pain it was noticed that the Veteran did not have a prior history of lumbar spine prior to 2005, and the history of knee pain goes back further than 1999. The examiner stated that he sees patients with a past history of knee pain developing low back pain. He indicated that the change in gait alone can cause an increased wear and tear effect in the lumbar spine. He stated that the twisting of the femur can put the hip joint out of alignment and place excessive stress on the lumbar spine. The clinician indicated that one postural deficiency can throw the body out of alignment and in the Veteran's case, the deficiency of the knee is causing increased wear and tear on the lumbar spine, resulting in the pain he is currently experiencing. There is no indication that the clinician examined the Veteran. The Board notes that there is no clear finding in the record that the Veteran has an abnormal gait. However, the Veteran has argued that the VA examiner's opinion is not adequate since it is based only on a finding that the Veteran had a normal gait. It is argued that when the Veteran was examined in November 2005, that VA examiner reported that the Veteran's left lower extremity carried the brunt of the Veteran's weight to compensate for the right knee pain resulting in overuse of the left knee. The Veteran argues that this substantiates that he has an abnormal gait. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that both opinions of record are inadequate and no other conclusive opinion is of record. Thus, the Board finds that a remand is required in order to obtain an adequate medical opinion. Barr, supra. Concerning the claim for service connection for peripheral neuropathy, the December 2008 VA examiner stated that he felt the disorder was related to the Veteran's diabetes mellitus. The Veteran testified that he has not been diagnosed with diabetes, and VA outpatient record of April 2008 shows that the Veteran denied having diabetes. A review of the record, including VA and private records in the file, does not show a diagnosis of diabetes. Thus a remand is necessary for anther examination and opinion. Additionally, the Veteran has stated at his hearing before the Board that he was also claiming service connection for this disorder as secondary to his lumbar spine disorder for which he is also claiming service connection in this appeal. Thus the issues are intertwined and a determination on this theory must be deferred pending completion of further development. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination(s) to determine the etiology of any low back disorder and peripheral neuropathy and to determine the current manifestations of his service-connected right knee disorder. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner(s) in conjunction with the examination(s). If the examiner(s) does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. As to the low back and peripheral neuropathy disorders, based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed low back disorder or peripheral neuropathy is due to or aggravated by a service connected disability (i.e., bilateral knee disorders and his foot disorders). The examiner must describe the Veteran's gait and the effect, if any on his low back disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. As to the right knee disorder, any tests deemed appropriate must be accomplished. The examiner should describe all symptomatology related to the Veteran's service-connected right knee disability to specifically include: a. the range of motion in flexion and extension in degrees, to include the degree in motion at which pain begins; b. the degree of instability (if any) in the knee c. any additional functional loss with repetition to include the degree of functional loss that results from any knee symptoms, such as locking, weakness, buckling and instability. Examples of functional loss include the ability to perform "normal working movements" with strength, speed, coordination or endurance. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. If there is no limitation of function, limitation of motion, or pain, such should be explicitly noted. d. Note whether pain affects the normal working movement of the right knee, including any decreased movement, strength, speed, or endurance. e. Note any excess fatigability, incoordination, and pain on movement. f. State whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. g. Describe, in detail, all objective findings for any incision scars associated with the Veteran's service-connected right knee disability, to include the length, width, texture, and appearance of any scar(s) and whether any scars are unstable or painful on examination. The examiner must consider the Veteran's lay statements regarding his disability, to include how his right knee impairment affects his daily activities. The examiner should identify the limitation of activity imposed by the Veteran's service-connected right knee disability with a full description of the effects the disability has upon his ordinary activities. The examiner should also fully describe the impact the disability has on the Veteran's economic adaptability. 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. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).