Citation Nr: 1309073	
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  07-22 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an increased rating for left knee traumatic arthritis status post injury and arthroscopy, currently rated as 10 percent disabling.

2.  Entitlement to an increased rating for left knee limitation of extension, currently rated as 10 percent disabling since January 4, 2011.

3.  Entitlement to service connection for a back disorder, to include as secondary to the service-connected left knee disability.

4.  Entitlement to service connection for a right knee disorder, to include as secondary to the service-connected left knee disability.

5.  Entitlement to service connection for a right hip disorder, to include as secondary to the service-connected left knee disability.

6.  Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected left knee disability.

7.  Entitlement to service connection for a right ankle disorder, to include as secondary to the service-connected left knee disability.

8.  Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected left knee disability.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Cherry, Counsel 


INTRODUCTION

The Veteran served on active duty from February 1977 to October 1994.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims.

In December 2010, the Board reopened the claim of entitlement to service connection for a back disorder and remanded that claim along with the other claims for further development.

In an April 2012 rating decision, the Appeals Management Center assigned a 10 percent disability rating for left knee limitation of extension effective January 4, 2011.  

A July 2006 VA examination report shows that the examiner noted that the Veteran was unemployed due to his service-connected left knee disability.  This evidence raises the issue of entitlement to a total disability rating based on individual unemployability.  Although a January 2011 VA examination report shows that the appellant has been employed for the past two to five years after undergoing VA vocational rehabilitation, the Board has to take jurisdiction over this issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) because under current case law it is essentially a component of the claims for higher ratings for the left knee disabilities.  

In light of the above, the issues are as stated on the title page.

The issues of entitlement to an increased rating for migraine headaches, whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a sinus disorder and respiratory problems claimed as an undiagnosed illness, and entitlement to service connection for rhinitis and gastroesophageal reflux disease (see April 2012 statement of the Veteran) have been raised by the record, but 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 a back disorder, a right knee disorder, bilateral hip disorders, and bilateral ankle disorders and entitlement to 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.  Since December 20, 2004, left knee traumatic arthritis status post injury and arthroscopy has been manifested by arthritis with limited motion and no more than slight recurrent subluxation or lateral instability; flexion limited to 30 degrees, or a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is not shown.

2.  Prior to January 4, 2011, the left knee disability was not manifested by limitation of extension of 10 degrees or greater. 

3.  Since January 4, 2011, the left knee disability has not been manifested by extension limited to 15 degrees or greater.


CONCLUSIONS OF LAW

1.  Since December 20, 2004, the Veteran's left knee traumatic arthritis with limitation of motion has not met the criteria for an evaluation greater than 10 percent.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261, (2012).

2. Since December 20, 2004, the Veteran's left knee instability has met the criteria for an evaluation greater than 10 percent.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5257 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in February and March 2006 of the information and evidence needed to substantiate and complete a claim of entitlement to an increased rating, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  VA provided notice of how disability evaluations and effective dates are assigned in March 2006.  These claims were most recently readjudicated in a supplemental statement of the case and a rating decision issued in April 2012.

VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination.  The RO and AMC obtained the Veteran's service and VA treatment records and afforded him VA examinations for his left knee disability, to include pursuant to the December 2010 remand.  

The reports of the July 2006 and January 2011 VA examinations reflect that the examiners reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interview, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record as to the service-connected left knee disability.  The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

In light of the above, to include the discussion of the post-remand examination, VA complied with the directives of the December 2010 remand.  Stegall v. West, 11 Vet. App. 268 (1998).

In short, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Increased Rating Claims

In a January 1996 rating decision, the RO granted service connection for left knee arthritis and assigned a 10 percent disability rating under Diagnostic Code 5257-5010.  On December 20, 2005, the Veteran filed a claim for an increased rating for his left knee disability.  In a December 2007 rating decision, the RO assigned a temporary 100 percent disability rating pursuant to 38 C.F.R. § 4.30 (2012) for convalescence from October 29, 2007, to November 30, 2007.  As noted above in the introduction section, in an April 2012 rating decision, the Appeals Management Center assigned a 10 percent disability rating for left knee limitation of extension effective January 4, 2011.

Under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010, traumatic arthritis is rated as degenerative arthritis which in turn is rated based upon the nature and extent of any limitation of motion.  If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, but with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned.  With X-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 

With any form of arthritis, painful motion is an important factor.  It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no compensable limitation of motion of the affected joint is demonstrated.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. 

For the purpose of rating disability due to arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45(f).

The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II (2012).
 
Leg flexion limited to 60 degrees warrants a noncompensable evaluation, and flexion limited to 45 degrees warrants a 10 percent evaluation.  A 20 percent disability rating is warranted for flexion limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.
 
Leg extension limited to 5 degrees warrants a noncompensable evaluation, and extension limited to 10 degrees warrants a 10 percent evaluation.  A 20 percent disability rating is warranted for extension limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.
 
VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004).  The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable.  Id.

Arthritis manifested by limitation of motion and instability of the knee are two separate disabilities, and a veteran may be rated separately for these symptoms.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997) (when a claimant has arthritis and is rated under instability of the knee, those two disabilities may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code 5257).  

Diagnostic Code 5259 (removal of the semilunar cartilage) requires consideration of 38 C.F.R. § 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion.  See VAOPGCPREC 9-98 (Aug. 14, 1998).

Under the criteria for impairment of the knee other than ankylosis, a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability and a 20 percent evaluation is warranted for moderate recurrent subluxation or instability.  A 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

Under Diagnostic Code 5258, a 20 percent rating is warranted for a dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012).

Under Diagnostic Code 5259, a 10 percent disability rating is warranted for a symptomatic removal of semilunar cartilage.  38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012).

Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14 (2012).

Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the one-year time period before the claim was filed until VA makes a final decision on the claim.

Rating based on limitation of motion (arthritis)

A review of the July 2006 and January 2011 VA examination reports and VA treatment records shows since December 20, 2004, left knee traumatic arthritis status post injury and arthroscopy has not been manifested by either flexion limited to 45 degrees or less as contemplated by a compensable rating based on limitation of flexion.

At the July 2006 VA examination, left knee flexion was from zero to 100 degrees.   Similarly, a July 2007 VA treatment record shows that there was a full range of motion in the left knee.  That treatment record also reflects that the Veteran reported that his left knee was intermittently puffy.  The physical examination, however, revealed no effusion that day.  

Similarly, a November 2007 VA treatment record shows that left knee flexion was from zero to 110 degrees, and an April 2008 VA treatment record reflects that there was full range of motion in the left knee.  At the January 2011 VA examination, left knee flexion was from zero to 110 degrees.  The Veteran reported that he had symptoms of pain, giving way, and locking episodes one to three times a month.  

In short, the Board finds that the recorded ranges of motion are not indicative of a compensable level of limitation of flexion at any time during the course of the appeal.  

With respect to limitation of extension, a review of the July 2006 VA examination report and VA treatment records shows that prior to January 4, 2011, the left knee disability was not manifested by limitation of extension.  At the July 2006 VA examination, left knee extension was to zero degrees.  July and November 2007 and April 2008 VA treatment records show that there was no limitation of extension in the left knee.  A review of the January 4, 2011, VA examination report shows since January 4, 2011, the Veteran's left knee extension was limited to 10 degrees.  Such findings are consistent with the disability evaluation assigned by the RO.  Accordingly, effective January 4, 2011, but no earlier, the criteria for a 10 percent evaluation for limitation of extension is warranted.  However, at no time during the course of the appeal has left knee extension been limited to 15 degrees or more as contemplated by a rating in excess of 10 percent.  

The Board observes while a compensable level of limitation of flexion and/or extension is not meet prior to January 4, 2011, diagnostic Code 5010 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5010.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.  When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  Id.

Inasmuch as the record reflects that the Veteran has a noncompensable limitation of motion prior to January 4, 2011, the Board concludes that a rating of 10 percent based on limitation of motion is warranted for this period.  

The Board has considered the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) regarding the left knee disability.  At the July 2006 VA examination, the Veteran reported that he had flare-ups of knee symptomatology that were moderate in severity, happened every one to two months, and resulted in an inability to continue activities.  He also reported symptoms of pain and weakness.  At the January 2011 VA examination, he reported symptoms of weakness and incoordination.  He also stated that he had severe flare-ups happening every two to three weeks, lasting three to seven days, and requiring bed rest until the flare-up resolves.  The appellant is competent to report this symptomatology and the Board finds him credible.  At the July 2006 VA examination, there was no additional limitation of motion on repetitive use.  At the January 2011 VA examination, there were findings of tenderness, weakness, and guarding of movement.  The examiner noted that the appellant was unsteady and unable to perform range of motion testing without falling and bearing full weight on the left knee.  While there was objective evidence of pain following repetitive motion, there were no additional limitations after three repetitions of range-of-motion testing.  

Although the Board finds the Veteran credible in his reporting of symptomatology, the Board places greater weight on the findings on the VA examinations in which the examiner did not report any additional limitations after repetitive motion testing than on his reporting of symptomatology.  Given that the appellant is already being compensated for pain on motion extension and without evidence of other significant limitations, a higher rating pursuant to DeLuca is not warranted.  38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59.

Rating based on Instability

At the July 2006 VA examination, the Veteran denied any locking episodes or effusion.  However, the Veteran reported that he had episodes of dislocation or subluxation several times a year but not monthly.  The appellant is competent to report this symptomatology and the Board finds him credible. 

A July 2007 VA treatment record reflects that the Veteran reported that his left knee was intermittently puffy.  The physical examination, however, revealed no effusion that day.  Furthermore, the Veteran reporting that the left knee is only intermittently puffy is evidence that any effusion is not frequent in nature.

A November 2007 VA treatment record shows that the Veteran reported that he had symptoms of pain, giving way, and locking episodes one to three times a month.  While the Veteran denied any symptoms of instability or episodes of dislocation or subluxation and the examiner found no meniscus abnormality, the examiner reported that the left knee was unsteady during physical examination.   The Board observes that the Veteran has reported that his symptoms such as left knee locking only one to three times a month.  

The Board finds the Veteran's reports of instability to be credible.  The Veteran's infrequent reports of dislocation or subluxation combined with the lack of objective findings at the time of the July 2006 examination are consistent with no more than slight instability or subluxation of the knee.  Furthermore, there is no evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion at anytime during the appeal. 

In sum, the Board finds that the evidence shows no more than slight recurrent subluxation or lateral instability.  Accordingly, a compensable evaluation of no more than 10 percent is warranted for instability of the left knee.  

The December 2007 rating decision and VA treatment records reflect that the October 2007 surgery was not a complete meniscectomy.  Additionally, the Veteran is already being rating based on limitation of motion, so to assign a separate rating under Diagnostic Code 5259 (removal of the semilunar cartilage) would violate anti-pyramiding provision of 38 C.F.R. § 4.14 because limitation of motion can be considered in Diagnostic Code 5259.

Extraschedular Consideration

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether a veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected left knee disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability - limitation of flexion and extension - with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.

The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 10 percent for the service-connected left knee traumatic arthritis status post injury and arthroscopy and 10 percent for instability.  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Assignment of staged ratings has been considered and is not for application. Hart, 21 Vet. App. at 509-10.


ORDER

Entitlement to 10 percent disability rating, but no greater, for traumatic arthritis with limitation of motion of the left knee prior to January 4, 2011, is granted.

Entitlement to a rating in excess of 10 percent for traumatic arthritis with limitation of extension, currently rated as 10 percent disabling since January 4, 2011, is denied.

Entitlement to a separate compensable evaluation in excess of 10 percent for instability of the left knee is denied.  



REMAND

The Veteran has not been provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to a total disability rating based on individual unemployability, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  Such notice must be provided.  38 U.S.C.A. §§ 5103, 5103A.

As stated above, the issues of entitlement to an increased rating for migraine headaches, whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a sinus disorder and respiratory problems claimed as an undiagnosed illness, and entitlement to service connection for rhinitis and gastroesophageal reflux disease have been raised.  The Veteran raised these issues in the April 2012 statement.  Accordingly, appellate review of the Veteran's claim of entitlement to a total disability rating based on individual unemployability must be deferred because those issues are inextricably intertwined and must first be addressed by the AMC.  Hoyer v. Derwinski, 1 Vet. App. 208 (1991); Harris v. Derwinski, 1 Vet. App. 180 (1991).

The Veteran's service treatment records show that in May 1977 the Veteran injured his right knee and that the assessment was chondromalacia patella versus right knee strain.  An August 1982 bone scan revealed that the right knee appeared to be involved with a degenerative joint process.  The January 2011 VA examiner did not address these findings in rendering an opinion on the etiology of the right knee degenerative joint disease.  

The service treatment records reflect that the Veteran was treated for back pain in September 1978, August 1979, June 1981, January 1984, July 1985, February and March 1986, and May 1992.  The August 1982 bone scan revealed findings compatible with diffuse osteopenia.  Moreover, osteoporosis and degenerative disc disease in the lumbar spine have been diagnosed.  The January 2011 VA examiner did not address these findings in rendering an opinion on the etiology of the lumbar spine degenerative joint disease.

The service treatment records reflect that in June 1983 the Veteran suffered a muscle strain in the left thigh.  January 2011 VA X-rays of the hips show minimal spurring bilaterally.  A February 2011 VA bone scan of the hips revealed osteopenia.  The January 2011 VA examiner did not address these findings in rendering an opinion on the etiology of the bilateral hip arthralgia.

January 2011 VA X-rays of the ankles show minimal spurring bilaterally.  VA treatment records reflect that the problem list includes ankle enthesopathy not otherwise specified.  The January 2011 VA examiner did not address these findings in rendering an opinion on the etiology of the bilateral ankle arthralgia.

For these reasons, the January 2011 VA examination did not comply with directives of the December 2010 remand as to the service connection claims.  Stegall v. West, 11 Vet. App. 268 (1998).  Therefore, another VA examination is necessary.

The Board notes that the examination should also address the Veteran's unemployability due to service-connected disabilities.

The AMC last obtained VA treatment records from the VA Medical Center in Fayetteville, Arkansas and the VA community-based outpatient clinic in Mount Vernon, Missouri, in November 2011.  The AMC should obtain all records from these facilities since November 2011.

The December 2007 rating decision reflects the existence of a temporary claims file.  A May 2007 VA examination report shows that the Veteran was receiving VA vocational rehabilitation benefits during his period of unemployment.  The AMC should obtain and associate the temporary claims file and the VA vocational rehabilitation file with the permanent claims file.

Finally, the Veteran was last asked to identify treatment for his lumbar spine, bilateral hip, right knee, and bilateral ankle disorders in 2006.  The Veteran should be afforded the opportunity to identify treatment for these disorders.


Accordingly, the case is REMANDED for the following action:

1.  The AMC should obtain the Veteran's temporary claims file and his VA vocational rehabilitation file and associate them with his permanent claims file.

2.  The AMC must provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability.  The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  The AMC should ask the Veteran to provide detailed information on all periods of unemployment.  The AMC should undertake any additional development in response to a completed formal application.

3.  The AMC should ask the Veteran to identify all treatment for his lumbar spine, bilateral hip, right knee, and bilateral ankle disorders, as well as any treatment that may be relevant to his claim for a TDIU.  The AMC should obtain all identified records, and the appellant's assistance should be requested as needed.  Regardless of the claimant's response, the RO should obtain all records from the VA Medical Center in Fayetteville, Arkansas and the VA community-based outpatient clinic in Mount Vernon, Missouri, since November 2011.  Any obtained records should be associated with the appellant's claims file.

4.  The AMC must then adjudicate the claim of entitlement to service connection for entitlement to an increased rating for migraine headaches, whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a sinus disorder and respiratory problems claimed as an undiagnosed illness, and entitlement to service connection for rhinitis and gastroesophageal reflux disease, as well as any other claim that the appellant presents for service connection or an increased rating.  The Veteran is hereby informed that the Board will only exercise appellate jurisdiction over any new claim of entitlement to service connection if he perfects a timely appeal.

5.  Thereafter, schedule the Veteran for a VA examination to determine the nature and extent of his back, bilateral hip, right knee, and bilateral ankle disorders and to address whether he is or was unemployable due to service-connected disabilities.  The claims folder is to be made available to the examiner to review.  

The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to back (lumbar and thoracic), bilateral hip, right knee, and bilateral ankle disorders.  

Back:  

Whether it is at least as likely as not (50 percent or greater) that the Veteran's osteoarthritis of the lumbar spine, degenerative disc disease of the lumbar spine, osteoporosis of the lumbar spine, and any other back (lumbar or thoracic) disorder are related to his military service, to include back treatment in service and the August 1982 bone scan revealing findings compatible with diffuse osteopenia. 

Whether it is at least as likely as not (50 percent or greater) that the Veteran's osteoarthritis of the lumbar spine, degenerative disc disease of the lumbar spine, osteoporosis of the lumbar spine, and any other back (lumbar or thoracic) disorder were caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected left knee traumatic arthritis status post injury and arthroscopy with limitation of extension, to include any abnormal gait caused by the left knee disability.  

If the examiner finds that any back disorder was aggravated by the service-connected left knee disability, then he/she should quantify the degree of aggravation.

Bilateral hip disorder:  
Whether it is at least as likely as not (50 percent or greater) that the Veteran's disorder manifested by bilateral spurring, osteopenia, and any other hip disorder are related to his military service, to include the left hip treatment in service and the August 1982 bone scan revealing findings compatible with diffuse osteopenia. 

Whether it is at least as likely as not (50 percent or greater) that the Veteran's disorder manifested by bilateral spurring, osteopenia, and any other hip disorder were caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected left knee traumatic arthritis status post injury and arthroscopy with limitation of extension, to include any abnormal gait caused by the left knee disability.  

If the examiner finds that any hip disorder was aggravated by the service-connected left knee disability, then he/she should quantify the degree of aggravation.

Right knee disorder:  
Whether it is at least as likely as not (50 percent or greater) that the Veteran's right knee degenerative joint disease and any other right knee  disorder are related to his military service, to include the right knee treatment in service and the August 1982 bone scan revealing findings that were compatible with diffuse osteopenia and that the right knee appeared to be involved with a degenerative joint process. 

Whether it is at least as likely as not (50 percent or greater) that the Veteran's right knee degenerative joint disease and any other right knee  disorder were caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected left knee traumatic arthritis status post injury and arthroscopy with limitation of extension, to include any abnormal gait caused by the left knee disability.  

If the examiner finds that any right knee disorder was aggravated by the service-connected left knee disability, then he/she should quantify the degree of aggravation.

Bilateral ankle disorder:  
Whether it is at least as likely as not (50 percent or greater) that the Veteran's disorder manifested by bilateral spurring, ankle enthesopathy not otherwise specified, and any other ankle disorder are related to his military service, to include the August 1982 bone scan revealing findings compatible with diffuse osteopenia. 

Whether it is at least as likely as not (50 percent or greater) that the Veteran's disorder manifested by bilateral spurring, ankle enthesopathy not otherwise specified, and any other ankle disorder were caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected left knee traumatic arthritis status post injury and arthroscopy with limitation of extension, to include any abnormal gait caused by the left knee disability.  

If the examiner finds that any hip disorder was aggravated by the service-connected left knee disability, then he/she should quantify the degree of aggravation.

TDIU: 
The examiner should determine whether the Veteran is or was unemployable due to service-connected disabilities.  For the period in which the Veteran was or is currently unemployed, the examiner must opine whether there is a 50 percent or better probability that that the Veteran is or was unable to obtain and retain substantially gainful employment based on the service-connected hypertension, migraine headaches, tinnitus, bilateral hearing loss, cervical strain, residuals of a left wrist fracture, a left ring finger scar, and left knee traumatic arthritis status post injury and arthroscopy with limitation of extension.  (The examiner should be made aware of any additional grants of additional service connection claims after the date of this remand.  If so, the examiner must take that fact and those service-connected disorders into consideration.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

5.  The Veteran is to be notified that it is his responsibility to report for the scheduled examination 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).

6.  After the development requested, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If any report is deficient in any manner, the AMC must implement corrective procedures at once.

7.  Thereafter, the AMC must readjudicate the issues on appeal, to include the adjudication of the issue of entitlement to a total disability rating based on individual unemployability.  If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs