Citation Nr: 1310110 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-14 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to low back strain. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction was subsequently transferred to the VA RO in Columbia, South Carolina. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a left knee disorder and seeks entitlement to a TDIU. In May 2008 the Veteran was noted to complain of knee pain and in was indicated to be applying for Workers' Compensation. Prior to and after this treatment note, including in June 2008, October 2009, and December 2010, the Veteran was noted to be diagnosed with degenerative joint disease of the knee. In August 2008 the Veteran was afforded a VA Compensation and Pension (C&P) medical examination at which time he complained of a knee condition that began in 2007. There was gradual onset of knee pain that had gotten progressively worse. He was noted to take Motrin with good response. The Veteran was noted to not have a history of trauma or neoplasm of the joint. The Veteran had no deformity, instability, stiffness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, effusions, or inflammation. The Veteran had pain and weakness and flare-ups of a severity of seven to eight out of ten that were daily and lasted thirty minutes. The flare-ups were precipitated by walking or sitting too long and were alleviated by Motrin. The Veteran was noted to be limiting in standing to ten to twenty minutes and limited in walking to 500 to 1000 feet. Physical examination revealed the Veteran's gait to be normal. There was no evidence of abnormal weight bearing and there was no inflammatory arthritis. The left knee revealed no objective findings, no crepitus, no mass behind the knee, no grinding, no clicks or snaps, no instability, no patellar abnormality, no meniscus abnormality, and no abnormal tendons or bursae. Range of motion was 0 to 140 degrees with no objective evidence of pain with active motion on the left side. X-rays were performed; however, it appears that only the right knee was examined by x-ray. After examination the Veteran was not diagnosed with any knee disability and it was noted that he had no knee pathology. The examiner did not discuss the Veteran's prior diagnoses of degenerative joint disease of the knee. The examiner noted that the Veteran had sciatica in his left leg to the knee and rendered the opinion that sciatica is most likely caused by or a result of low back strain. The examiner stated: Disc herniations are known to cause sciatica. There is documented nerve compression on MRI. This nerve compression did not occur until after his [J]anuary injury. On a CT scan from 2005 it shows mild disc bulging but no nerve compression. The [Veteran] however does claim to have had the sciatic prior to the [January 2008] injury but worse after the injury. It is therefore my opinion that the [Veterans] current symptoms are 50 [percent] from his military low back injury and 50 [percent] from his more recent back injury. The Veteran has been granted to service connection for left lower extremity radiculopathy associated with low back strain. Although the examiner rendered an opinion associating the Veteran's left sciatica in the left leg to the knee with the Veteran's service connected low back strain, the examiner did not render an opinion regarding the Veteran's previously diagnosed left knee disability. As such, the Board finds the examination to be inadequate. Once VA undertakes the effort to provide an examination when developing 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. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the claim must be remanded for the Veteran to be afforded another VA medical examination. In addition, substantial treatment records have been associated with the claims file since August 2008 VA examination and the Veteran should be afforded another VA examination taking into account this treatment. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With regard to the claim for TDIU, the Veteran is service-connected for low back strain, evaluated as 10 percent disabling, effective October 6, 2004, and 20 percent disabling, effective September 22, 2011; and left lower extremity radiculopathy associated with low back strain, evaluated as 10 percent disabling, effective September 22, 2011. Therefore, as of October 6, 2004, the Veteran had a combined evaluation of 10 percent disabling and as of September 22, 2011, has a combined evaluation of 30 percent disabling. As such, at present the Veteran does not meet the schedular criteria for the award of a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes that after examination in August 2008 no opinion was rendered regarding whether the Veteran's service-connected disability rendered him unemployable. In December 2008 a VA physician rendered the opinion that while work involving lifting or prolonged standing would not be appropriate for the Veteran, he would be a suitable candidate for vocational training. The Veteran was afforded a VA medical examination of his spine in January 2012. After examination the examiner noted that "[t]he impact of the thoracolumbar spine condition on the claimant's ability to work is problems with standing, walking, bending and sitting." However, the examiner did not render an opinion regarding whether the Veteran is unemployable. The Board notes that the Veteran was previously employed as a truck driver. As such, the Board finds it necessary to afford the Veteran an examination regarding his employability and, if the Veteran's combined evaluation is insufficient for the award of a TDIU based upon the schedular criteria, the RO should consider the claim to be submitted to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). See Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran receives consistent treatment from the VA. Review of the claims file reveals that treatment records dated subsequent to November 2011 have not been associated with the claims file. Additionally, review of the record reveals that the Veteran applied for Workers' Compensation benefits; however, records regarding this application for benefits have not been obtained or associated with the claims file. Accordingly, attempts must be made to obtain complete VA treatment records regarding the Veteran, including those dated subsequent to November 2011. Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, after obtaining adequate authorization from the Veteran, attempts must be made to obtain all records regarding the Veteran's application for Workers' Compensation. Subsequent to the issuance of the most recent Supplemental Statement of the Case (SSOC) in July 2009, additional VA treatment records dated through November 2011 were associated with the claims file and the Veteran was afforded a VA medical examination regarding his spine in January 2012. That evidence must be considered in an SSOC. See 38 C.F.R. § 19.31. Lastly, in May 2008 the Veteran was sent notice regarding what evidence is required to substantiate the claim. However, review of the letter reveals that the Veteran was not notified of the criteria for establishing a claim based upon direct service connection. As such, on remand, the Veteran must be sent complete notice regarding what evidence is required to substantiate a claim based on both direct and secondary bases. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran adequate notification regarding what evidence is required to substantiate a claim based upon both direct and secondary theories of entitlement to service connection. 2. Obtain and associate with the claims file VA medical records pertaining to the Veteran that are dated since November 2011. 3. After securing the proper authorization, request all records regarding the Veteran's application for Workers' Compensation. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 4. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the etiology of any current left knee disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's suffers from a left knee disorder that is related to his active service or is proximately due to or been chronically worsened by his service-connected low back strain. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 5. Thereafter, schedule the Veteran for an appropriate VA examination regarding the Veteran's claim of entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any non service-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. Thereafter, if and only if the VA examiner determines that the Veteran's service-connected disabilities render him unemployable and the Veteran does not meet the schedular criteria for the assignment of a TDIU, refer the Veteran's claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis. 7. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. 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). _________________________________________________ M. E. LARKIN 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).