Citation Nr: 1310221 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-33 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a spine disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, to include entitlement to a temporary total rating for convalescence. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from April 1976 to April 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared via video conference and provided testimony before the undersigned Acting Veterans Law Judge (VLJ) in August 2011. A transcript of the hearing has been associated with the claims file. The issues were previously remanded by the Board in November 2011 for additional development. As addressed in the remand below, the record reasonably raises an issue of entitlement to TDIU which is deemed an issue as part and parcel of the claims on appeal. The Board has listed this issue as a separate claim for administrative purposes. The issues of entitlement to service connection for spine disability, to include as secondary to a service-connected left knee disability, and 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. As a result of an acute injury and VAMC care due to his service-connected left knee disability, the Veteran's left knee was immobilized from September 24, 2006 to December 18, 2006. 2. The Veteran's left knee does not exhibit flexion limited to 30 degrees, extension limited to 10 degrees, ankylosis, dislocated or removal of cartilage, instability, or symptomatic scars. CONCLUSIONS OF LAW 1. The criteria for a temporary total rating for convalescence from September 24, 2006 to December 18, 2006 have been met. 38 C.F.R. §§ 3.102, 4.30 (2012). 2. The criteria for an evaluation in excess of 10 percent for a left knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5010-5260, 5256, 5258, 5259, 5260, 5261; 38 C.F.R. § 4.118 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). But see Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( '§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). It need not describe the VA's evaluation of the veteran's particular claim '). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in October and December 2006 and May 2008, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim of entitlement to an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. In addition, the letters from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. The unfavorable decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of 'relevant' records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be 'necessary' to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records. The claims file contains the Veteran's own statements in support of his claim. The claims file contains extensive private treatment records and private reports of medical examination. Pursuant to the November 2011 remand, updated treatment records and an additional VA examination report have been added to the claims file. VA has also provided medical examinations for the Veteran's claim. The Veteran underwent examinations in connection with his claim for an increased rating for a left knee disability in November 2006, January 2008, and August 2012. The Board has reviewed the examination reports, and finds that each is adequate for the purpose of deciding the issue on appeal. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Factual background A September 24, 2006 VA progress note reflects that the Veteran fell and injured his knee when stepping off a curb. At that time, it was swollen and painful. In another VA treatment record dated the same day, the Veteran reported his knee gave out on him and he fell. He reported he may have twisted his knee to avoid hitting his head when falling. The diagnosis was fractured left patella. The examiner noted the plan included a knee immobilizer. During a November 2006 VA examination, the Veteran complained of constant pain in his left knee, accompanied by weakness, swelling, giving way, fatigability, and dislocation. He denied stiffness, heat, redness, lack of endurance, or locking of the knee. Often pain is brought on by physical activity, and relieved by resting or using magnets on the knee. He ambulated with a hard brace and a cane. During a severe flare-up, the Veteran reported he requires complete bed rest. The Veteran reported he has been prescribed bed rest by a physician in the past, one time in the past year for over 90 days. Physical examination revealed mild effusion, weakness, tenderness, and guarding of movement as well as mild crepitus. There was no evidence of edema, redness, heat, abnormal movement, subluxation, or locking pain. The range of motion of the left knee joint was 85 degrees flexion with pain at 80, and extension was to 10 degrees with pain at 30 degrees. The range of motion of the joint function was limited by pain, fatigue, weakness, lack of endurance, and incoordination after repetitive use, with pain having the major functional impact. The medial and lateral collateral ligaments, anterior and posterior cruciate ligaments, and medial and lateral meniscus revealed no instability. McMurray's and drawer tests were normal, bilaterally. There were no additional limitations in degrees after repetitive use. X-rays of the left knee showed early osteoarthritis. The VA examiner diagnosed chondromalacia, left knee progressed to osteoarthritis. In a December 2006 VA progress note, the examiner noted that the Veteran was 12 week status post left patella fracture in a hinged knee brace locked at 90 degrees of flexion with 0- extension. The examiner advised the Veteran that he needed to increase his activity level with full weight bearing and return for final check of quad strength. At that time, the examiner noted that there was no tenderness to palpation at the fracture site, 3/5 quad strength compared to the right side, full range of motion, no gross laxity both anterior and posterior and valgus/varus stress. There was good patella track and no swelling. During a December 2006 fee-based spine examination, the examiner noted moderate swelling of the left knee. There was no heat, redness, drainage, or abnormal movement of the left knee. There was much tenderness on palpation of the patella and on palpation of the medial aspect. McMurray's test was positive on the medial aspect and negative on the lateral side of the left knee. No medial or lateral instability was noted on examination. Range of motion findings included flexion to 105 degrees with pain starting and ending at the last degree and extension to zero degrees. There was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use or flare-ups. In a February 2007 letter to the President, the Veteran asserted that in September 2006 he was walking down a flight of stairs and his left knee gave out. He reported tumbling down the stairs and breaking his left knee cap. A July 2007 VA orthopedic note indicated no swelling, mild tenderness to palpation over medial joint line, negative Lachman's and anterior drawer tests, and no instability on varus and valgus stress. The diagnosis was left knee pain. In a July 2007 VA physical therapy note, the Veteran complained of left knee instability. He denied any more falls, and stated that his knee felt unstable. Upon physical examination, Lachman's and posterior and anterior drawer tests were negative. A VA surgical note indicated the Veteran had medial and lateral tenderness of the left knee, minimal patellofemoral pain or crepitus, and stable ligaments. MRI evidence showed a tear in the medial meniscus posterior horn. In October 2007, the Veteran underwent arthroscopic surgery of the left knee for meniscal tear. During a January 2008 fee-based examination, the Veteran complained of weakness, stiffness, and fatigability of the left knee with intermittent pain three times a day lasting for half an hour. The Veteran reported the sharp pain is brought on by physical activity such as walking. Upon examination, the examiner noted normal findings with flexion to 140 degrees and extension to zero degrees with pain on flexion without fatigue, weakness, lack of endurance, or incoordination. After repetitive use, there was no additional limitation of motion, but the Veteran reported pain, weakness, fatigue, lack of endurance, and incoordination. In an additional VA progress notes, the Veteran continued to complain of left knee pain and instability. In a June 2008 VA physical therapy note, the Veteran complained of his left knee giving away from unknown reason/cause which started several months ago. He reported he is aware when it is going to happen. He had no pain on examination, and his knee range of motion and strength were noted as good. During a June 2008 DRO hearing, the Veteran reported that he tumbled down the stairs and he broke his knee cap. A September 2008 letter reported MRI testing showing a tear in the medial meniscus posterior horn. During a September 2008 VA examination, the Veteran reported he did not have any problems with his service-connected knee until about 4 years prior. He reported mainly during intimacy and standing, he gets pain in the knee that lasts about 30 minutes. He reported he fell last in April because his left knee gave out. Examination of the left knee was normal in appearance. There was no heat, redness, swelling, effusion, drainage, or abnormal movement of the left knee. There was tenderness of the medial joint line. Anterior drawer sign was negative on the left knee. McMurray's test was moderately positive. Medial and lateral collateral ligaments were checked, and there was no medial or lateral instability noted. Range of motion of the left knee was within normal limits with pain at the extremes of flexion and with pain starting and ending at the last degree. Range of motion of the left knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use or during flare-ups. During an August 2011 hearing, the Veteran testified that his pain averages about an 8 or 9. He takes medication as needed, which is often two to three times a day. The Veteran again retold of the event during which his knee gave way and he fell down a flight of stairs breaking his knee cap. The Veteran reported that he used to work in the insulation business, but that he no longer works in the field as he cannot carry a belt, or ladders or things of that nature. The Veteran complained of continued instability, but no treatment for his left knee. During an August 2012 VA examination, the examiner noted diagnoses of osteoarthritis and left knee meniscal tear. The Veteran reported he has had chronic knee pain since the 1980s which became worse in 2004. He began having knee instability in September 2006, when he was running down some stairs and his left knee gave way and he fell onto concrete and fractured his left patella. An MRI in January 2007 was unrevealing. He continued to have pain and a July 2007 MRI showed a medial meniscal tear. He underwent arthroscopic surgery which helped minimally initially. Since 2008, his knee pain has improved significantly including his instability which has resolved. The Veteran reported flare-ups which cause him to sit down and rest. Range of motion findings included extension to zero degrees, and flexion to 140 degrees. There was no objective evidence of painful motion and no degree of hyperextension. The examiner specifically noted no additional limitation of range of motion following repetitive use testing. He had no functional loss and/or functional impairment of the knee. Anterior instability, posterior instability, and medial-lateral instability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted no residual signs or symptoms related to arthroscopic or other knee surgery. X-ray testing revealed degenerative or traumatic arthritis of the left knee. The examiner noted that the Veteran's leg condition limits the Veteran's occupation as he has had to quit the insulation estimation business because he could not carry equipment and go up and down ladders. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 Legal Criteria and Analysis A temporary total (100 percent) disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Schedule, when it is established that treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence. (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited. (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2012). Furthermore, extensions of temporary convalescent ratings, for up to three months beyond the initial three months also are available for items (1), (2), and (3) above; and approval may be obtained for extensions of one or more months, up to six months beyond the initial six-month period, for items (2) or (3) above. 38 C.F.R. § 4.30(b) (2012). In this case, VA progress notes indicate the Veteran injured his left knee in September 2006. The Veteran was prescribed a knee immobilizer and crutches. A November 2006 VA follow-up also indicated use of a knee immobilizer. In a December 18, 2006 VA progress note, the examiner noted that the Veteran was 12 weeks status post fracture in hinged knee brace locked at 90 degrees of flexion with 0- degrees of extension and participating in physical therapy twice a week. The management plan noted that the hinged knee brace was opened to full extension and flexion. As the Veteran's was under VAMC care for a service-connected disability with use of an immobilizer of a major joint, the criteria for a temporary total rating under 38 C.F.R. § 4.30 have been met, and the claim for that benefit is granted from September 24, 2006 to December 18, 2006. See 38 U.S.C.A. § 5107(b). Increased rating Legal Criteria- Increased Rating In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities which are rated according to the specific criteria therein. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Under Code 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under Code 5261, extension of a leg limited to 5 degrees or less warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71a, Plate II. In addition, the rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Analysis As the Veteran's left knee disability is currently rated 10 percent, the focus is on those criteria that would provide for (at least) the next higher (20 percent) rating. Left knee flexion is not shown at any time during the appeal period to have been limited to less than 105 degrees, including additional limitation of motion on repetitive testing. Consequently, a rating in excess of 10 percent under Code 5260 is not warranted. Left knee extension is not shown to have been limited at all; hence, a rating in excess of 10 percent under Code 5261 likewise is not warranted. The Board notes that during the November 2006 examination range of motion of the left knee joint was 85 degrees flexion with pain at 80, and extension was to 10 degrees with pain at 30 degrees; however, at this time, the Veteran was rated as temporarily totally disabled. While the limitation of motion findings do meet the threshold for a separate compensable rating for extension, as the Veteran is already compensated at the temporary total rating at this time, and there are no additional findings of limitations of extension or flexion during the appeals period, the Veteran cannot be rated on this examination report alone. The Veteran's objective evidence of pain has been noted but is contemplated in the assigned compensable evaluation; given the extent of motion on examination, the Board finds that this pain does not warrant a higher evaluation in and of itself. See DeLuca v. Brown, supra. Although the Veteran had multiple complaints of instability prior to the August 2012 VA examination, VA and private examinations found no evidence of lateral instability; extensive stability testing was negative. Accordingly, the left knee disability does not warrant the next higher (20 percent) rating under Code 5257. In summary, the Veteran does not meet any of the criteria for the next higher (20 percent) rating for his left knee disability at any time during the appeal period. The Board notes that as there is no evidence of pathology such as ankylosis, dislocated or removed semilunar cartilage, or tibia and fibula involvement, ratings under Codes 5256, 5258, 5259, and 5262 are not appropriate. The Board recognizes the Veteran has objective testing of degenerative arthritis of the left knee. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Several precedent opinions of the VA Office of General Counsel provide bases for the assignment of separate knee evaluations when specific symptoms are shown. However, as the evidence of record does not confirm objective knee instability, there is no basis for the assignment of separate evaluations for instability and arthritis. See VAOPGCPREC 23-97 (July 1, 1997); see also VAOPGCPREC 9-98 (August 14, 1998). Moreover, there is no basis for separate evaluations for flexion and extension, as the Veteran does not have sufficient limitation of flexion (60 degrees) for a zero percent evaluation under Diagnostic Code 5260 or sufficient limitation of extension (5 degrees) for a zero percent evaluation under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). With respect to the Veteran's claim, the Board has also considered his statements that his disability is worse than the assigned ratings reflect. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify'). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided upon examination) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. The Board has also considered whether referral for extra-schedular consideration is warranted. There is no evidence showing that the Veteran's knee disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that these disorders have necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Notably, there is no objective evidence of symptoms of and/or impairment due to the left knee disability not encompassed by the schedular ratings assigned. Therefore, the schedular criteria are not inadequate, and referral for extra-schedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, is denied. Entitlement to a temporary total rating for convalescence from September 24, 2006 to December 18, 2006 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran seeks service connection for a back disability and claims that it was caused or aggravated by his service-connected left knee disability. Specifically, he claims that in September 2006, his left knee gave way and caused him to fall and injure his back. An August 2008 letter from a VA nurse practitioner supports his assertion. A July 2008 letter from his chiropractor indicates a possible link between the left knee disability and current back disability while a June 2007 private treatment record indicates that the left knee was aggravating the back. In a November 2011 remand, the Board requested an opinion The examiner is asked to indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected knee disability caused or aggravated (permanently worsened beyond natural progression) his back disability. Though the examiner indicated the Veteran's back disability was not secondary to his service-connected left knee disorder, the examiner did not give an opinion as to an aggravation that may have occurred. The Board must return the examination reports as being inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). The Veteran was afforded VA examinations in December 2006 and September 2008. The same examiner conducted both examinations and opined that the left knee disability is unrelated to the back disability. Finally, at his hearing in August 2011, the Veteran alleged that he was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) found that the issue of TDIU was part of the determination of an underlying increased rating claim and cited to Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for the notion that a TDIU claim is raised once a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability. See 38 C.F.R. § 3.155(a). In discussing the assignment of an effective date for a grant of TDIU, the Court further stated that new evidence of unemployability 'related to the underlying condition' submitted within one year of the assignment of an initial rating that is less than the maximum sought may constitute new and material evidence under 38 C.F.R. § 3.156(b). Pursuant to the above, the Board finds that the record reasonably raises the issue of entitlement to TDIU, as part of the current appeal. However, the Veteran has received no notification of the evidence needed to substantiate this issue, nor has it been adjudicated by the RO to date. Such action will be needed on remand. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding a TDIU claim and a service connection claim under 38 C.F.R. § 3.310. 2. Return the claims file to the examiner who conducted the August 2012 VA examination for an addendum opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected knee disability caused or aggravated (permanently worsened beyond natural progression) his back disability. If the August 2012 VA examination is unavailable, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of his back disability. The claims file and a copy of this remand must be provided to the examiner, and he or she must indicate review of these items in the examination report. The examiner must also consider the subjective symptoms reported by the Veteran. The examiner is asked to indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected knee disability caused or aggravated (permanently worsened beyond natural progression) his back disability. All opinions must be supported by a sufficient rationale in a typewritten report. 3. Then, readjudicate the Veteran's claims on appeal, to include the issue of entitlement to TDIU, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). Allow an appropriate period for response. The Veteran has the right to submit additional evidence and argument on these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs