Citation Nr: 1316236 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-46 510A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease (DJD) of the right knee. 2. Entitlement to an initial evaluation in excess of 10 percent for DJD of the left knee. 3. Entitlement to an evaluation in excess of 10 percent for low back degenerative changes (hereinafter lumbar spine disability). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1964 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded service connection for the Veteran's bilateral knee disabilities and assigned 10 percent evaluations, respectively, effective May 26, 2006; it also awarded a 10 percent evaluation for the lumbar spine disability, which was previously evaluated as noncompensable, effective May 26, 2006-the date on which the Veteran filed his claim for increase. The Veteran timely appealed that decision with respect to the above issues. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2012; a transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the September 2012 hearing, the Veteran testified that he had only been treated by the Madison VA Medical Center. A review of the claims file, including the Virtual VA e-folder, demonstrates that that the last VA treatment records from Madison date from October 2009. Thus, the Board concludes that there are outstanding VA treatment records which are relevant to the claims on appeal, and a remand is necessary in order to obtain those records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In light of the remand, as above, the Board notes that the Veteran's knees and lumbar spine last were examined by VA in November 2009. In his hearing, the Veteran listed several problems he has with his disabilities, though he never specifically mentioned that his conditions had worsened since his last examination. Given that it has been more than 3 years since the last examination and the case is going to be further delayed by this remand, the Board finds that the Veteran should be afforded new VA examinations of his lumbar spine and knees in order to assess the current severity of those disabilities. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Madison VA Medical Center, or any other VA medical facility that may have treated the Veteran, since October 2009 and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral knee disability. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should comment as to the Veteran's bilateral knee extension, flexion, and any ankylosis, or arthritis thereof. The examiner must also indicate the presence or absence of any lateral instability and/or recurrent subluxation in the Veteran's bilateral knees. If instability is present, the examiner must specifically state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should state as such. The examiner should also discuss any lay evidence of symptomatology provided by the Veteran. The examiner should comment as to any additional pain, weakness, fatigability, lack of endurance, or incoordination which affects the Veteran's left knee. Additional loss of motion with repetitive movement should be noted in degrees. The examiner should also state whether the Veteran's bilateral knees, either separately or in aggregate, preclude him from obtaining and maintaining substantially gainful employment. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for a VA orthopedic and neurologic examination in order to determine the current nature and severity of his lumbar spine disability and any associated neurologic disabilities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The examiner is also directed to specifically comment on the following: (a) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (c) Whether the Veteran has intervertebral disc syndrome of the lumbar spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within the last 12-month period. The examiner must also identify any associated neurological deformities associated with the service-connected lumbar spine disorder, to include any associated bladder or bowel impairment, and particularly the presence of either left or right radiculopathy. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. The examiner should also state whether the Veteran's lumbar spine disability and any associated neurological disabilities preclude him from obtaining and maintaining substantially gainful employment. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims for increased evaluation of his bilateral knee and lumbar spine disabilities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ THOMAS J. DANNAHER 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).