Citation Nr: 1312397 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-18 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for gout affecting all joints, and additional disability involving the pancreas and liver, based on treatment rendered in December 2004 at the VA medical center (VAMC) in West Haven, Connecticut. 2. Entitlement to an increased rating for post operative meniscectomy, right knee, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for chondromalacia, left knee, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for low back strain, currently evaluated as 20 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Hartford, Connecticut Regional Office (RO), which granted an increased rating of 20 percent for post operative meniscectomy, right knee, an increased rating of 10 percent for chondromalacia, left knee, and denied an increased rating for low back strain and entitlement to TDIU. The Veteran also appeals an October 2007 rating decision, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for gout affecting all joints, pancreas, and liver. These issues were remanded in June 2010 for the scheduling of a Travel Board remand. That hearing was held in June 2012 before the undersigned Veterans Law Judge, and these claims now return before the Board. The issues of increased ratings for the Veteran's right and left service connected knee disabilities, and low back disability 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. The Veteran does not have an additional disability which is due to VA treatment in December 2004, in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing a medical procedure; or due to an event not reasonably foreseeable. 2. The Veteran withdrew his appeal seeking entitlement to TDIU during his June 2012 hearing. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as the result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. 3.361 (2012). 2. The criteria for withdrawal of a Substantive Appeal for a claim of entitlement to a TDIU by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. With respect to the claim for compensation under 38 U.S.C.A. § 1151 in this case, element (3) would be a connection between VA hospitalization, medical, or surgical treatment, and an additional disability or death. In such a claim, the appellant should also be advised that the additional disability or death must be the result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, or not a reasonably expected result or complication of VA treatment. VCAA letters dated in March 2005, September 2007, as well as multiple hearings and a prior Remand in this case, satisfied the duty to notify provisions under 38 U.S.C.A. § 1151. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced representative and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided a medical opinion dated December 2012, and provided with a copy of that opinion prior to this final adjudication. The Board finds this opinion to be very thorough in that it fully addresses the question of the relationship between the Veteran's claimed disabilities and the VA treatment at issue, including the degree of fault on the part of VA, as well as whether any additional disability was a reasonably foreseeable consequence of that treatment. The Board has considered the representative's argument that the informed consent form relating to the Veteran's surgery is not of record. Review indicates that VA has attempted to obtain all relevant records relating to his surgery and subsequent treatment, and based on its continued absence, the Board finds it is not available. Furthermore, the health care expert who provided the medical opinion obtained in this matter addressed its absence, explaining that while she noted that the records did not show the specific risks that were discussed with the Veteran, she indicated that it would be standard for all consents for ERCP to go over the risk of post procedure pancreatitis with possible pain, perforation, bleeding, hospitalization and possible death. The examiner also noted that the ERCP was conducted in the presence of a GI fellow by a board certified and very experienced attending gastroenterologist, who had years of experience. Under these circumstances, and as will be discussed in greater detail below, the Board concludes that the record has been developed to the extent possible and that any further delay in an effort to obtain further evidence or medical opinion will only needlessly delay adjudication of the claim. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for gout affecting all joints, pancreas, and liver, based on treatment rendered in December 2004 at the VA medical center (VAMC) in West Haven, Connecticut. Initially, the Board notes that 38 U.S.C.A. § 1151 was amended by Pub. L. No. 104-204. The Veteran's claim was filed after October 1, 1997. Under the applicable law, when a Veteran suffers additional disability as the result of VA surgical treatment, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). For claims filed on or after October 1, 1997, the appellant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151 (West 2002). VA treatment records indicate that the Veteran has received treatment for many years for chronic Hepatitis C. On December 16, 2004, after a computerized tomography (CT) scan revealed a bulky pancreatic head and closed bile duct (CBD) dilation without stones evident, the Veteran underwent an outpatient endoscopic retrograde cholangiopancreatography (ERCP) at the VAMC in West Haven, Connecticut. The impression following the procedure was duodenitis, mild dilation of the pancreatic duct in the head of the pancreas, tight distal CBD structure of uncertain etiology with proximal biliary dilation, and 1cm biliary sphincterotomy extending into the stricture. Later that day, the Veteran complained of very mild epigastric pain with no nausea. The Veteran's treating physician suspected that the Veteran had mild ERCP-induced pancreatitis. The Veteran complained of pain the next day, and on December 18, 2004, the Veteran was seen on an emergent basis for abdominal pain that had worsened with food. The impression was mild post-ERCP pancreatitis, stable, with no organ dysfunction, and no biliary obstruction. On December 19, 2004, the Veteran was treated for continued abdominal pain and left ankle pain. By December 21, 2004, the Veteran was diagnosed both pancreatitis and crystal-induced arthritis, most likely pseudogout in nature. On December 23, 2004, the Veteran complained of pain in his left ankle and knees, and he was unable to ambulate. The Veteran was diagnosed with pancreatitis precipitated by his recent ERCP and dietary stress, but with minimal enzyme changes. The record contains subsequent references to treatment for pancreatitis and pseudogout. To highlight some examples of this further treatment, in February 2006, a VA physician characterized the Veteran's pseudogout as "currently inactive." In August 2007, the Veteran presented with abdominal pain. An August 2007 CT scan of the abdomen and pelvis revealed evidence of mild pancreatitis with some small loculated posterior pancreatic fluid collection and mild enlargement of the pancreas. An October 2007 note indicated that the Veteran was taking pancrelipase and omeprazole, and he no longer complained of abdominal pain. A November 2007 VA rheumatology note indicated that the Veteran had a known history of pseudogout/chondrocalcinosis, and recently bilateral shoulder pain. An April 2010 magnetic resonance imaging (MRI) study revealed a normal pancreas and pancreatic ducts, and the splenic vein, hepatic vein, and portal veins were patent. There was no intra- or extrahepatic biliary ductal dilation, and the liver was unremarkable except for a few small cysts in the right hepatic lobe. In September 2010, the Veteran reported that he had been told to stop taking his pancreatic enzymes in July 2010. In April 2011, a VA treatment record indicated that the Veteran was not taking the pancreatic enzymes that had been prescribed to him. In July 2011, a VA treatment record indicated that the Veteran had last been treated for his pancreatitis and sphincterotomy of CBD stricture in April 2011. It was noted that the Veteran was no longer taking pancreatic enzymes and was doing well. The Veteran took diclofenac and NSAIDs in treatment of his pseudogout. An independent medical opinion, dated December 2012, was received regarding the Veteran's December 2004 treatment. At that time, the physician noted her extensive credentials, and her extensive review of the Veteran's claims file. After discussing the evidence in the record regarding liver disease in the Veteran, the physician stated that there appeared to be no obvious connection between the Veteran's ERCP and his liver disease. She stated she knew of no association of ERCP pancreatitis affecting chronic mild Hepatitis C, hepatic hemangioma, or fatty liver. It was therefore her opinion that there was no additional disability as a result of the ERCP in December 2004. The physician felt that the medical evidence of record prior to the procedure indicated that an ERCP was the proper procedure to do, to determine if there was a mass at the ampulla, and to identify the cause of the narrowing of the two ducts to be early cholangiocarcinoma. Therefore, she found no negligence in the scheduling of the procedure. She also noted that the doctor documented that he asked the Veteran for consent for the procedure. While she noted that the records did not show the specific risks that were discussed with the Veteran, she indicated that it would be standard for all consents for ERCP to go over the risk of post procedure pancreatitis with possible pain, perforation, bleeding, hospitalization and possible death. The examiner also noted that the ERCP was conducted in the presence of a GI fellow by a board certified and very experienced attending gastroenterologist, who had years of experience, and no record of malpractice. The physician further indicated that the records with the ERCP showed appropriate approach and technique in cannulation of the pancreatic duct and then the common bile duct. There was no indication that multiple attempts were needed. The physician also noted that a standard sphincterotomy was correctly performed to relieve the obstructed bile duct, and that the brushings and biopsies were correctly performed, both of which are necessary to look for malignancy. Minimal self limited bleeding from biopsies was expected and reported. The Veteran was stable prior to discharge home and was noted to have mild epigastric discomfort. Assessment prior to discharged included review of his vital signs and examination of his abdomen. He was given clear instructions regarding his diet and the side effects of the ERCP. The physician noted that the Veteran was admitted two days after the ERCP with abdominal pain, nausea, and vomiting, with minimal elevation in amylase. The Veteran was found to have mild post-ERCP pancreatitis without other organ dysfunction and no biliary obstruction. The physician felt that the Veteran received appropriate treatment for this condition, to include rest, lab test monitoring, intravenous hydration, and was able to tolerate oral intake of clear liquids 24-36 hours later. The physician concluded, based on these findings, that the ERCP done in December 2004, and the hospitalization in late December 2004 due to side effects from the ERCP, show no evidence of negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of the VA. The physician then noted that, during the Veteran's hospitalization, the Veteran developed bilateral knee pain and left ankle pain. Aspiration of fluid from both knees and ankle showed Calcium PyroPhosphate crystals and no evidence of infection or gout. He was noted to be on medication for over two weeks, and underwent repeated therapeutic taps of his joints for treatment of this pseudogout exacerbation. Pseudogout was judged to be inactive August 2005, at which time the Veteran was noted to have pain from osteoarthritis. The physician indicated that the Veteran did experience significant pain and mobility impairment, including 9 days of hospitalization in December 2004 as a result of post-ERCP pancreatitis and coincident but unrelated CPPD joint inflammation flare. The Veteran was also noted to have required a hospital admission for three days in August 2007, for recurrent pancreatitis with abdominal pain and elevated serum amylase levels. The physician indicated that both hospitalizations represented additional disability from the December 2004 ERCP procedure, however, there was less than a 50 percent possibility that the additional disability the Veteran incurred was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. Post ERCP pancreatitis is a known complication of the procedure. Subsequent unprovoked bouts of pancreatitis are not rare. In further discussing the evidence of record, the opinion physician indicated that an August 2007 flare up of left wrist and should joint pain was assessed by a rheumatologist to be pseudogout. An attempt to obtain joint fluid was unsuccessful. X-rays showed chondrocalcinosis. He was treated with medication and steroids. The examiner noted that pesudogout causes inflammation of joints, and risk factors include old age, joint injury or surgery, genetics, excess iron, overactive parathyroid, hypophosphatasia, hypomagnesemia, and Gitelman's syndrome. The Veteran's joint inflammation occurred in a joint which underwent prior surgery. The CPPD flare up began in both knees and an ankle with CPP crystals seen in the aspirated fluid. Other causes of pseudogout were examined and found to be normal. He respond to steroid medication and joint aspiration. The physician indicated that there was no causal relationship of the severe pseudogout episode in 2004 to the ERCP or the post ERCP pancreatitis except for the unfortunate coincidence of timing. In sum, the physician concluded that the Veteran did have significant disability after his ERCP evaluation of a mass in the head of the pancreas and bile duct obstruction. This disability included a 9 day hospitalization for mild post ERCP pancreatitis, and a moderate to severe episode of pseudogout which required assistive devices for ambulation. Evidence for progression over time to moderate degenerative joint disease in both knees, and mild degenerative disc disease of the lumbar spine are recognized in December 2010. Recurrence of pancreatitis requiring hospitalization in 2007 is noted. Additional episodes of joint inflammation requiring joint aspiration and intraarticular steroids in 2007 and 2011 were noted. The examiner stated that this disability was not due to a failure to exercise reasonable medical care within the VA. While noting that this disability is uncommon, she indicated that it was within the possible side effects of an ERCP that is properly performed, and that the ERCP was provided with the Veteran's informed consent. Taking into account all relevant evidence, the Board finds that the majority of the evidence of record indicates that the additional disability the Veteran incurred as a result of his December 2004 treatment was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, nor was the proximate cause of additional disability was an event which was not reasonably foreseeable. In this regard, the Board finds particularly probative the medical evidence cited above, specifically the December 2012 independent medical opinion. The Board finds this opinion particularly probative because it was made by an experienced medical health professional, was based on an extensive review of the Veteran's claims file, and discussed the Veteran's medical history in detail, before concluding that the Veteran's additional disability was not due to a failure to exercise reasonable medical care, and that it was within the possible side effects of a properly performed ERCP. The Board notes that the Veteran's representative submitted a copy of a Wikipedia article regarding septic arthritis. The Veteran's representative appears to be arguing that there was some issue as to whether the Veteran had a diagnosis of septic arthritis and whether this might be related to his surgery. The Board however finds little merit to this claim. While some of the Veteran's medical records question a possible diagnosis of septic arthritis, the Veteran was never actually diagnosed with septic arthritis, and in fact a December 2004 treatment record noted that the Veteran was clinically unlikely to have septic arthritis, particularly in both knees simultaneously. Nor did the medical expert in the December 2012 opinion indicate that the Veteran appeared to carry an actual diagnosis of septic arthritis. Therefore, it appears any argument related to a diagnosis of septic arthritis is moot. The Board also notes that the Veteran's representative questioned the fact that there was no copy of the actual consent form for the procedure in question. While that consent form is not of record, the Veteran's representative has not stated that no consent form was signed. In fact, in a letter received in January 2013 from the Veteran, he indicated that he recalled signing a form prior to the ERCP procedure. Although he indicated that he did not remember anyone going over the risk of the procedure with him, the December 2012 independent medical opinion indicated that it would be standard for all consents for ERCP to go over the risk of post procedure pancreatitis with possible pain, perforation, bleeding, hospitalization and possible death, and that the doctor documented consent was given; therefore, the Board finds that the greater weight of probative evidence strongly supports a finding that the Veteran was informed of the possibility of such side effects prior to his surgery. While the Board has considered all of the Veteran's arguments, including in his recent hearing testimony, and notes that he is competent to report symptomatology and when it occurred, it finds that the question of whether he has additional disability in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable is a complex medical issue that is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no question that the Veteran had additional disability after his examination; however, the question of whether it was due to medical error, or an event not reasonably foreseeable, is a question requiring medical expertise outside the scope of the Veteran's knowledge. Having therefore carefully considered the evidence pertaining to the Veteran's claim, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. Simply put, the greater weight of probative evidence is against a finding that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable. As discussed, a VA examiner has concluded that while there is additional disability due to the ERCP, it is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable. The VA examiner provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Veteran has produced no competent evidence to counter the physician's opinion. Again, the Board has considered the Veteran's own lay assertions in his several hearings during the course of this appeal. Certainly, he is competent to report the onset of symptoms such as pain following his surgery, and, to this extent, his assertion is entitled to probative weight. And, the Board does not dispute the fact that the Veteran incurred an additional disability due to this procedure. However, as noted, the question of whether he has additional disability in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable, is a complex medical issue that is beyond the realm of a layman's competence. Thus, the Board ultimately places far more probative weight on the findings and conclusions of the competent VA health care provider recited above. For these reasons, the Board concludes that compensation under 38 U.S.C.A. § 1151 for additional disability is not warranted. Accordingly, the claim is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran withdrew his TDIU claim in June 2012, during his hearing before the undersigned Veterans Law Judge, and a written transcript of that withdrawal has now been associated with the Veteran's claims file. VA regulation provides for the withdrawal of an appeal to the Board by the submission of a written request to that effect at any time before the Board promulgates a final decision on the matter in question. See 38 C.F.R. § 20.204(b) (2012); Hanson v. Brown, 9 Vet. App. 29, 31 (1996) (when a claim is withdrawn by a Veteran, it ceases to exist; it is no longer pending and it is not viable). The Board had not yet issued a final decision on this case, therefore the Veteran's withdrawal of this issue is valid. The withdrawal of an appeal effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, in such an instance, dismissal of the appeal is appropriate. See 38 U.S.C.A. § 7105(d) . Because the Veteran has clearly expressed his desire to terminate his appeal for these benefits, because he has done so in writing, and because the Board had not yet promulgated a decision on his appeal at the time of his request for withdrawal, the legal requirements for a proper withdrawal have been satisfied. 38 C.F.R. § 20.204(b). Accordingly, further action by the Board on this particular matter is not appropriate and the Veteran's appeal as to this issue should be dismissed. 38 U.S.C.A. § 7105(d). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for gout affecting all joints, pancreas, and liver, based on treatment rendered in December 2004 at the VA medical center (VAMC) in West Haven, Connecticut is denied. The appeal as to the claim of entitlement to TDIU is dismissed. REMAND As to the Veteran's claims of entitlement to increased ratings for his right and left knee disabilities, the Board notes that the evidence of record appears to show that these disabilities have increased in severity since his last VA examination in 2010. Specifically, during the Veteran's hearing testimony of June 2012, he reported feeling instability problems with both knees. During his December 2010 VA examination, the examiner found no problems with instability. As such, the Board finds that the Veteran should be provided with a further VA examination that more accurately assesses the Veteran's current level of disability in his knees. As to the Veteran's claim of entitlement to an increased rating for his low back disability, the Board notes that the Veteran's testimony in his June 2012 Board hearing also appears to show an increase in severity in the Veteran's back disability. In addition to reporting a general increase in symptomatology, the Veteran also reported that he was now having to use a TENS unit for relief of pain. As such, the Board finds that this tends to indicate an increase in symptomatology, and the Veteran should also be provided with a further VA examination for his back that more accurately assesses the Veteran's current level of disability. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for his service connected back or knee disabilities. After allowing an appropriate time for response, contact any identified facility, including the VA facility at which the Veteran was most recently treated, to obtain all of his available treatment records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After the above development has been completed, and the relevant records associated with the Veteran's claims file, please schedule the Veteran for an appropriate VA examination for his back and knees. All relevant tests and studies should be undertaken. The claims file should be provided to the examiner, and they should so note in their examination report. The examiner should specifically note any limitation of range of motion of the back or knees, to include limitation due to pain, whether the Veteran's back disability results in incapacitating episodes, and whether the Veteran has any neurological symptomatology related to his service connected back disability. The examiner must provide reasons and bases in support of his decision. 3. After completion of the above requested development, and any other development deemed warranted by the record, the RO should readjudicate the claims on appeal, in light of all pertinent evidence (to specifically include all that added to the record since the issuance of the last SSOC on the matters on appeal) and legal authority. The RO must provide adequate reasons and bases for its determinations. 4. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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. 2010). ______________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs