Citation Nr: 1316223 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 08-00 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a back disorder, to includes as secondary to a service-connected disability. 3. Entitlement to an initial compensable disability evaluation for a collapsed arch of the left foot. 4. Entitlement to an effective date earlier than October 15, 2009, for the grant of a total rating due to unemployability resulting from service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from March 1953 to February 1955 and had subsequent service in the Army Reserves from December 1959 to March 1961. This matter comes before the Board of Veterans Appeals (Board) on appeal from various rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) initially from Cleveland, Ohio and thereafter in Detroit, Michigan. In an April 2007 rating determination, the Cleveland RO denied service connection for bilateral knee and back disorders. Thereafter, the Veteran perfected his appeal on these issues. In an April 2008 rating determination, the Detroit RO granted service connection for arthritis with knee joint replacement for the right knee and assigned a 30 percent disability evaluation, effective the date of receipt of the initial claim. In a July 2008 rating determination, the Detroit RO denied the claim for a TDIU. In a September 2009 rating determination, the Detroit RO granted service connection for a collapsed arch of the left foot as secondary to the service-connected right knee disorder and assigned a noncompensable disability evaluation. The Veteran subsequently perfected his appeal as it related to the assigned disability evaluation. In an August 2010 rating determination, the RO increased the Veteran's disability evaluation for his right knee replacement from 30 to 60 percent and assigned an effective date of October 15, 2009. The RO also granted a TDIU at that time and assigned an effective date of October 15, 2009. The Veteran subsequently perfected an appeal of the issue of entitlement to an effective date earlier than October 15, 2009, for the TDIU. In a December 2007 VA Form 9, the Veteran requested a videoconference hearing before the Board. In a September 2009 VA Form 9, the Veteran indicated that he did not want a Board hearing. By letter dated in November 2012, the RO noted that the Veteran has also indicated in an October 2011 VA Form 9, which was actually received in October 2010, that he wanted a hearing but that he had also indicated in May 2011 and March 2012 VA Forms 9 that he did not want a hearing. The RO requested that the Veteran respond and indicate whether he wanted a hearing. It was noted that if the Veteran did not respond, it would be assumed that he did not want a hearing. The file does not contain a response to the letter and there is no response in Virtual VA and no indication of the record of any receipt of mail in since the case has arrived at the Board, as noted by the Veteran's representative in the April 2013 Informal Hearing Presentation. The Veteran's representative did not request a hearing. Therefore that Board finds that the hearing request has been withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND At the outset, the Board notes that the Veteran's service treatment records are not available for review through no fault of his own. Hence, there is a heightened obligation for VA to assist the appellant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). As it relates to the claims of service connection for back and right knee disorders, the Board notes that the Veteran has indicated his belief that these current disorders are either caused or aggravated by his service-connected right knee disorder. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. The regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Following a March 2008 VA examination, the examiner indicated that the Veteran's left knee arthritis, with knee joint replacement, was less likely than not caused by or a result of a right knee condition. The examiner noted that the Veteran claimed that his right knee was injured in 1953, resulting in an arthritic process in the left knee. The examiner observed that the Veteran stated that this eventually culminated in his requiring bilateral knee replacements in 1998. The examiner stated that this was most likely not the etiology of the knee pathology of the left knee. The examiner observed that the Veteran's x-rays showed signs of osteopenia which would cause accelerated wear and tear on the bones. It was observed that the Veteran was 64 years old at the time of the knee replacement, the number one etiology for degenerative arthritis of the knee was age greater than 50. The examiner stated that the entire claims folder was reviewed and it appeared that the etiology of the left knee arthritis was the combination of the aging process and the effects of osteopenia. As to the back disorder, the examiner indicated that the low back disorder, multilevel degenerative disc disease of the lumbar spine, was not caused by or the result of the bilateral knee condition. The examiner stated that it did not appear as though the Veteran's knee pathology was responsible for his back condition. The examiner stated that the Veteran's back condition, multilevel degenerative disc disease of the lumbar spine was due to the aging process. While the examiner provided rationale for each of the opinions, she did not address the question of aggravation of any of the claimed disabilities by the service-connected right knee disorder. Any adjudication must be determined based upon independent medical judgment, rather than the superimposed judgment of the adjudicator, and in this case, there is inadequate medical opinion in the file to answer some of the pertinent questions pursuant to Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Board further observes that subsequent to the March 2008 examination, service connection for a collapsed arch of the left foot, as secondary to the service-connected right knee disorder, was granted. The Board also notes that in a June 2010 VA outpatient treatment record, it was indicated that the Veteran had significant knee pain limiting functional activities and compounding back pain. It was also noted at that time that the Veteran reported having had long standing back pain since 1956. Based upon the above, the Veteran should be afforded an additional VA examination to determine the nature and etiology of any current left knee and back disorders and their relationship, if any to his period of service and/or his service-connected right knee and left foot disorders, to include by way of aggravation. As it relates to the claim for an initial compensable disability evaluation for a collapsed arch of the left foot, in his October 2010 substantive appeal, the Veteran indicated that VA continued to incorrectly state that he stopped voicing complaints about his left foot after he received his inserts. He stated that his symptoms were not and still were not relieved by the arch supports that VA had provided. He noted that he continued to complain after he was issued the inserts. The Veteran also stated that it was his belief that he should be afforded a new VA examination before the Board made a decision as the last VA examination was over a year old and his condition had worsened. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As such, an additional VA examination to determine the severity of the claimed left foot disorder is warranted. With regard to the issue of an earlier effective date for the TDIU, the Board notes that as the Veteran's claims for service connection for left knee and back disorders have been pending since the initial application, actions resulting from the Board remand, as it relates to these service connection issues, may have an impact on the earlier effective date issue. The Board finds these service connection issues to be inextricably intertwined with the TDIU earlier effective date issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any current left knee and back disorders. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file and note such review. All indicated tests and studies should be performed and all findings must be reported in detail. If any of the claimed disorders are found, the examiner must offer an opinion as to whether it is at least as likely as not (e.g. a 50 percent or greater probability) that the diagnosed left knee and back disorders are etiologically related to the Veteran's period of active service. If not, is it at least as likely as not that the service-connected right knee or left foot disorders caused or aggravated (permanently worsened) any current back or left knee disorder? The examiner should provide detailed rationale for these opinions. 2. The Veteran should be scheduled for a VA examination to determine the severity of his service-connected collapsed arch of the left foot. All indicated tests and studies should be performed and all finding must be reported in detail. The claims folder must be made available to the examiner for review and the examiner should note such review in his report. The examiner is requested to identify all symptomatology related to the left foot fallen arch. The examiner should note the absence or presence of the following: weight-bearing line over or medial to the great toe; inward bowing of the tendo Achillis; pain on manipulation and use of the foot; marked deformity; pain on manipulation and use accentuated; indication of swelling on use; characteristic callosities; marked pronation; extreme tenderness of plantar surface of the feet; marked inward displacement and severe spasm of the tendo Achilles on manipulation; and whether symptoms are improved by orthopedic shoes or appliances. The examiner is also requested to classify the foot impairment as mild, moderate, moderately severe, or severe. 4. After completing the above development, readjudicate the remaining claims. If the disposition remains unfavorable, the RO should furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. 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). _________________________________________________ K. J. ALIBRANDO 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).