Citation Nr: 1312302 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-36 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral knee conditions. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected bilateral knee conditions. 3. Entitlement to a rating in excess of 10 percent for post-operative right knee with degenerative joint disease prior to December 14, 2010, and a rating in excess of 30 percent from February 1, 2012. 4. Entitlement to a rating in excess of 10 percent for post-operative left knee with degenerative joint disease prior to July 5, 2011, and a rating in excess of 30 percent from September 1, 2012. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for lumbar and cervical spine conditions, continued a 10 percent rating for right knee degenerative joint disease, and granted a 10 percent rating for left knee degenerative joint disease effective from December 26, 2007. In August 2011, the RO granted a 100 percent rating for the right knee effective from December 14, 2010, and a 30 percent rating from February 1, 2012. The RO also granted a 100 percent rating for the left knee from July 5, 2011, and a 30 percent rating from September 1, 2012. Because the 100 percent rating assigned for the Veteran's knee conditions represents the maximum available rating, those periods are no longer on appeal, and the issues have been recharacterized as above. A Travel Board hearing was held in December 2012 with the Veteran in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Veteran's Virtual VA file has also been reviewed as part of his appeal. The appeal is hereby REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. REMAND Service Connection The Veteran contends that he has disabilities of the lumbar spine and cervical spine that are related to his service-connected bilateral knee conditions. Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Prior to receipt of the Veteran's December 2007 claim, and effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. In this regard, the recent amendment to 38 C.F.R. § 3.310 provides, in pertinent part, that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012). Private treatment records reflect current diagnoses of lumbar and cervical spine disabilities. To date, however, the Veteran has not been afforded a VA examination to determine the etiology of these conditions. In light of his assertion that they are related to his service-connected knee conditions, an examination and opinion is warranted. 38 C.F.R. § 3.159(c)(4). Increased Ratings The Veteran's right knee disability was assigned a 30 percent rating effective from February 1, 2012. The left knee was assigned a 30 percent rating effective from September 1, 2012. Unfortunately, the record does not contain any objective findings related to the Veteran's knees during these periods. The Veteran's most recent VA examination was in October 2008, and the available treatment records are dated through August 2011. Therefore, the Veteran should be afforded a new VA examination to determine the current severity of his bilateral knee conditions. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). In addition, any VA treatment records generated since August 2011 should also be obtained and associated with the claims file. Finally, the Veteran was assigned a 10 percent rating for his right knee prior to December 14, 2010, and a 10 percent rating for his left knee prior to July 5, 2011. A review of the evidence shows that the Veteran received knee braces and reported subjective complaints of giving way or instability in December 2007 and during his VA examination in October 2008. However, contemporaneous physical findings simply note an absence of instability. Therefore, on remand, the VA examiner who examines the Veteran's knees should also review the claims file and offer an opinion as to whether the Veteran's subjective complaints of giving way of the bilateral knees are consistent with the nature and severity of his disabilities prior to his right and left total knee replacements on December 14, 2010 and July 5, 2011, respectively. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain the Veteran's treatment records from the Durham VA Medical Center for the period from August 2011 through the present and associate them with the claims file or Virtual VA file. 2. The RO/AMC should schedule the Veteran for an examination to determine the nature and etiology of his lumbar and cervical spine conditions. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner 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 printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All indicated tests should be conducted. After a review of the claims folder and completion of the examination, the examiner should address the following: (A) Whether any currently diagnosed lumbar spine condition is proximately due to, OR, alternatively, aggravated by, the Veteran's service-connected left and right knee degenerative joint disease. (B) Whether any currently diagnosed cervical spine condition is proximately due to, OR, alternatively, aggravated by, the Veteran's service-connected left and right knee degenerative joint disease. If it is determined that the Veteran's lumbar or cervical spine conditions are aggravated by his knee disabilities, then to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. 3. The RO/AMC should schedule the Veteran for a VA examination by a clinician with appropriate expertise in order to determine the current severity of his bilateral knee disabilities. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner 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 printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries, including x-rays of the Veteran's joints. The examiner must report the complete range of motion for the bilateral knees. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. The examiner should also discuss any evidence of instability or locking of the bilateral knees. Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner must also review the claims file, including x-rays from November 2007, VA treatment records from December 2007, and the VA examination report from October 2008, and provide an opinion as to whether the Veteran's subjective complaints of giving way are consistent with the nature and severity of his right knee condition as it existed prior to December 14, 2010, and/or his left knee as it existed prior to July 5, 2011. A complete rationale should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. 4. Following completion of the foregoing, the RO/AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the RO/AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. 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 claims should be readjudicated. If the claims remain denied, a SSOC should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs