Citation Nr: 1316701 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-04 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for herniated nucleus pulposes of the thoracolumbar spine, claimed as herniated disc of the low back, to include as secondary to the service-connected post-operative right total knee arthroplasty with leg shortening. 2. Entitlement to service connection for degenerative joint disease of the left knee, status-post left total knee replacement, to include as secondary to the service-connected post-operative right total knee arthroplasty with leg shortening. 3. Entitlement to an initial evaluation in excess of 20 percent for left shoulder rotator cuff tear. 4. Entitlement to an increased rating for post-operative right total knee arthroplasty with leg shortening, currently evaluated as 30 percent disabling. 5. Entitlement to a total disability rating due to individual unemployability. REPRESENTATION Appellant represented by: Virginia A. Noble, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to service connection for a bilateral hip condition, including as secondary to the Veteran's service-connected post-operative right total knee arthroplasty with leg shortening, was raised by the record in August 2011 and again at the hearing in December 2012. This issue has not been developed for appellate review and is therefore referred to the RO for appropriate disposition. The issues of entitlement to service connection for herniated nucleus pulposes of the thoracolumbar spine, for an initial evaluation in excess of 20 percent for left shoulder rotator cuff tear, and for a total disability rating based on individual unemployability are remanded to the RO. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The competent medical evidence of record demonstrates that the Veteran's degenerative joint disease of the left knee, status post left total knee replacement, is related to his post-operative right total knee arthroplasty with leg shortening. 2. The Veteran's post-operative right total knee arthroplasty with leg shortening is manifested by chronic residuals consisting of severe painful motion and weakness in the right lower extremity. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left knee, status post left total knee replacement, is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.159, 3.310 (2012). 2. The criteria for a 60 percent rating for post-operative right total knee arthroplasty with leg shortening have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With regard to the claim for service connection for degenerative joint disease of the left knee status post left total knee replacement, without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). As to the Veteran's increased rating claim, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's June 2007 and March 2009 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, an April 2009 letter to the Veteran notified him that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate his claim for a higher rating. Moreover, this letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the October 2007 examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); 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."). Law and Analysis Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service Connection - Left Knee Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is seeking service connection for degenerative joint disease of the left knee, status post left total knee replacement, hereinafter referred to as a left knee disability. He claims that this disability was caused by his service-connected post-operative right total knee arthroplasty with leg shortening, hereinafter referred to as right knee disability. In numerous statements and during his December 2012 hearing before the Board, the Veteran reported his belief that service connection is warranted on a secondary basis because, due to his right knee disability, he walks with an altered gait, constantly favoring his right leg, thus putting more weight on his left leg. Moreover, the Veteran suggested that his left knee disability may have been caused by the frequent falls he experiences due to his right knee disability. The Veteran's service treatment records are silent as to any complaints of or treatment for a left knee disorder, and the Veteran does not contend that his left knee disability initially manifested during service. Thus, consideration of this claim on a direct service connection basis is not warranted. As early as June 1994, the Veteran's VA records show that he reported that his left knee was giving way, and that his left knee was worsening due to his favoring of his right leg. By February 1999, the Veteran underwent left knee arthroscopy. Private records also show that the Veteran fell onto his left knee in August 2001, after which he experienced pain and locking at night. MRI in September 2001 revealed increased signal within the substance of both the lateral and medial meniscus consistent with degenerative change, as well as a possible partial tear involving the posterior horn of the medial meniscus. Several years later, in October 2004, clinical records show that the Veteran has degenerative arthritis in both knees. This diagnosis was again reported in a private record dated in January 2006. The Veteran underwent total knee replacement of the left knee in December 2008. In June 2009, the Veteran underwent VA examination of his left knee to determine the nature and etiology of any disability present. The VA examiner noted the left knee pain, suggested that the claims file was reviewed, and reported that onset of symptoms was in 2005 or 2006. Physical examination revealed that the Veteran walked with an altered gait, limping "mildly favoring his right knee." The examiner confirmed the diagnosis as severe degenerative joint disease of the left knee and status post left total knee replacement. As to etiology, the examiner, a physician's assistant, simply stated, "left knee DJD is not caused by right knee DJD. DJD of one joint generally would not cause DJD of another joint." There was no assessment of the longstanding left knee pain, and no analysis of whether the many years of an altered gait due to the right knee disability could have caused the left knee disability. The RO returned the claims file to the same examiner in October 2009 with a request that the examiner answer whether the left knee was aggravated by the right knee. The response, in its entirety, was "Did not aggrevate [sic] ... 'Cause,' and 'aggrevation,' [sic] in a knee context are the same condition." It is inexplicable to the Board how the RO deemed this opinion to be adequate for rating purposes. There was simply no valid basis provided for either opinion. It is unclear to the Board why the RO did not return the claims file and obtain a new examination and opinion by an appropriate examiner, perhaps an orthopedic physician. Rather, the RO simply relied on this inadequate opinion in order to deny the Veteran's claim. In November 2011, the Veteran's longstanding private physician, Dr. J.C.C., submitted a statement in support of the Veteran's claim. This physician confirmed that it is at least as likely as not that the Veteran's left knee disability was caused or aggravated by the right knee condition. The physician explained that the Veteran "needed to put increased weight on his left knee" and that he "had to use his left knee in a more vigorous fashion." This opinion was based upon the Veteran's history and the ongoing treatment that the physician had provided him. The Board finds this opinion to be adequate for rating purposes. The Board finds that the evidence of record supports a finding of service connection for the Veteran's left knee disability. Degenerative joint disease of the left knee, status post left total knee replacement, is currently diagnosed. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the preponderance of the evidence supports the notion that the Veteran's right knee disability, which is service connected, caused or at the very least aggravated, the degenerative joint disease of the left knee, status post left total knee replacement. 38 C.F.R. § 3.310; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Again, while there is a VA examiner's negative opinion in the record, this opinion did not address the entire history of the Veteran's left knee pain and also provided a medical opinion with an unsound basis. That examination report is simply of little to no probative value and is clearly outweighed the private examiner's opinion based upon a long history of treatment of the Veteran and provided with a legitimate medical basis. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). Thus, the preponderance of the record is in agreement that the Veteran's current left knee disability is due, at least in part, to his service-connected right knee disability. Service connection for degenerative joint disease of the left knee, status-post left total knee replacement, is therefore warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating - Right Knee The Veteran filed his present claim seeking an increased evaluation for his service-connected post-operative right total knee arthroplasty with leg shortening in May 2007. The Board notes that prior to this, the Veteran, by way of the May 2006 rating decision, was awarded a temporary 100 percent rating for the period of time following his most recent surgery, which was effective April 4, 2006, until June 1, 2007, at which time a 30 percent evaluation was assigned. Thus, at the time of his May 2007 claim, the Veteran was in receipt of a 100 percent rating, so this appeal is related to the 30 percent in effect from June 1, 2007, to the present. April 2007 physical therapy notes show that the Veteran's right knee was unstable and painful at the time. Private physician records of the same month show moderate effusion, significant medial and lateral instability with mild anterior posterior instability. The Veteran's May 2007 claim includes a report that the instability was not worse than before and that he "found it necessary to return to wearing a substantial support brace" for his right knee. In June 2007, he reported to a VA physician that he experienced more lateral laxity and increased pain and giving way. When walking, the Veteran noted that he has to take frequent breaks. An August 2007 physical therapy note shows that he was discharged from care due to a failure to progress. Physical therapy was noted to have been "ineffective in relieving his pain or improving the stability of his right knee." October 2007 VA notes document that his knee gives out if he does not wear a brace. The physician noted that if the Veteran "notes improvement in his symptoms with the brace then he should continue to do this as it is the easiest solution." July 2008 VA clinical notes also document that the Veteran's knee gives out if he does not wear the brace. Moreover, throughout the records it is shown that the Veteran requires the use of a cane for ambulation. These symptoms show the Veteran's ongoing weakness following his surgery, which manifests via constant giving way and instability. In addition to the ongoing, seemingly severe weakness, the Veteran's private physician also reported "persistent" pain in a January 2009 note. At the time of the June 2009 VA examination related to the left knee claim, the examiner reported that the Veteran walks with an altered gait in order to favor the right knee. A November 2009 private report shows chronic knee pain. By August 2011, the Veteran is reported to take "8 Percocet, 4 Robaxin, and 1 Celebrex a day for pain." An August 2011 statement from Dr. J.C.C. shows that the Veteran "continues to have significant difficulty" and that further knee revision is necessary. More recent records, dated in November 2012, also show continued anterior and posterior instability with continuing pain, despite years of treatment, several surgeries, and support through a brace and cane. Again, a revised surgery is noted as the option; however, at this time it is noted that the Veteran's diabetes must be more controlled prior to any such surgery. Most recently, in November 2011, Dr. J.C.C. submitted a report describing the Veteran's right knee disability as being manifested by chronic, severe pain, with chronic right leg weakness and moderate recurrent lateral instability. The RO has assigned a 30 percent disability rating for the Veteran's service-connected post-operative right total knee arthroplasty with leg shortening, pursuant to Diagnostic Code 5055. Under this diagnostic code, the minimum 30 percent evaluation is warranted when the medical evidence of record shows a history of prosthetic knee replacement. 38 C.F.R. § 4.71a , Diagnostic Code 5055. A 60 percent evaluation is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. The maximum 100 percent evaluation is granted for 1 year following implantation of prosthesis. Id. When there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs to rate by analogy to knee ankylosis, limitation of leg extension, or limitation of leg flexion. Id.; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5260, 5261 (2012). Limitation of leg flexion warrants a noncompensable rating if limited to 60 degrees, a 10 percent rating if limited to 45 degrees, a 20 percent rating if limited to 30 degrees, and a maximum 30 percent rating if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of leg extension warrants a noncompensable rating if limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a maximum 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2009) (showing normal leg flexion and extension as between 0 degrees and 140 degrees). Based on this evidence, the Board finds that an increase to a 60 percent rating is reasonably warranted for post-operative right total knee arthroplasty with leg shortening. The Veteran has been shown to have constant, significant pain in his right knee, with ongoing constant weakness that results in instability that requires the use of a brace. Moreover, even with the use of the brace, the Veteran is noted to have an altered gait, and general weakness. The Veteran has described symptoms of pain, weakness, and instability, including frequent falls, in written statements, during treatment, and during a hearing before the Board. The records show ongoing use of a brace and cane, and the Veteran, at his hearing, also confirmed use of a motorized chair when completing walking tasks, such as grocery shopping. Moreover, he reported that he often has to make many shopping trips in a week due to his limitations, as he cannot undergo extended time on his feet and cannot go alone without the use of a chair, such that he cannot ride in the chair and push a shopping cart. The Veteran is competent to report these symptoms, as well as the impact on his daily functioning, and the Board finds that his statements are credible and consistent with the objective findings. The evaluation of musculoskeletal disabilities also includes consideration of functional loss due to pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination, and of impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2009); DeLuca v. Brown, 8 Vet. App. 202 (1995). The analysis above, and the rating assigned, is made due to the Veteran's weakened and unstable movement, thus these factors are clearly considered in this analysis. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the post-operative right total knee arthroplasty with leg shortening is manifested by chronic residuals consisting of severe painful motion and weakness in the right lower extremity. Accordingly, the Board finds that the manifestations of his service-connected post-operative right total knee arthroplasty with leg shortening more nearly approximate the criteria required for the 60 percent rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5055 (2012). A higher rating of 100 percent is only applicable for the one year following the implementation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Again, the Veteran was awarded the 100 percent rating for the period immediately prior to the rating under appeal. The question at hand is the appropriate rating following the temporary 100 percent rating. Moreover, a higher rating would not be achieved by rating by analogy to limitation of flexion or limitation of extension in the right knee. Again, the maximum rating for limitation of flexion is 30 percent, which is the same as the rating presently assigned. The maximum rating for limitation of extension is 50 percent. The 60 percent rating assigned under Diagnostic Code 5055 is the most beneficial to the Veteran. Additionally, a separate rating for instability of the right knee is not warranted. See 38 C.F.R. § 4.71a, 5257 (2012); see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997). The Veteran's knee is shown to near constantly give way due to weakness following multiple surgeries. This aspect of the Veteran's disability will be compensated by way of the 60 percent rating assigned under Diagnostic Code 5055. The weakness accounted for in the 60 percent rating awarded is manifested by way of the Veteran's knee giving way near constantly without the use of support such as a brace and/or cane. Because these symptoms are accounted for in the rating being assigned, a separate evaluation based on instability of the knee is not warranted. In that the Veteran's knee claim arises from total knee arthroscopy, the Board has further considered whether the Veteran warrants a separate disability rating for any right knee surgical scar. See generally, Jones v. Principi, 18 Vet. App. 248 (2004); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, throughout the course of this claim and appeal, neither the Veteran, nor his representative, have suggested that any existing right knee surgical scars are deep, exceed 6 square inches in area, cause limitation of motion, nor are they unstable. Moreover, the evidence does not suggest that such symptomatic scars exist. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7805 (2012). In the absence of such symptomatology, the assignment of a separate evaluation under the respective diagnostic codes is not in order. See 38 C.F.R. § 4.118. Extraschedular Consideration In considering the Veteran's claim herein, the Board has also considered the issue of whether the schedular evaluation assigned the Veteran's right knee disability is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture in this case is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected right knee disability was evaluated under the rating criteria for Prosthetic Implants pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. A 60 percent disability evaluation is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. This diagnostic criteria fully and adequately describes the severity and symptomatology exhibited by the Veteran's right knee. Moreover, the Veteran's representative specifically requested the assignment of a 60 percent rating at the time of the Veteran's hearing. Thus, there is no suggestion on the part of the Veteran or his representative that any rating in excess of 60 percent is warranted. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 60 percent disability rating under Diagnostic Code 5055. The criteria for a 60 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5055; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In its determination that a 60 percent evaluation is warranted for the Veteran's service-connected right knee, the Board applied the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, based on the above discussion, the benefit of the doubt doctrine is not for application with regard to the assignment of a rating in excess of the 60 percent assigned herein, as the preponderance of the evidence is against such assignment. ORDER Service connection for degenerative joint disease of the left knee, status-post left total knee replacement, as secondary to the service-connected post-operative right total knee arthroplasty with leg shortening, is granted. An evaluation of 60 percent, but no more, for post-operative right total knee arthroplasty with leg shortening is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to the claims for service connection for herniated nucleus pulposes of the thoracolumbar spine, for an initial evaluation in excess of 20 percent for left shoulder rotator cuff tear, and for a total disability rating based on individual unemployability (TDIU). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Lumbar Spine The Veteran contends that his herniated nucleus pulposes of the thoracolumbar spine (hereinafter referred to as low back disability) was either caused by or is aggravated by his service-connected post-operative right total knee arthroplasty with leg shortening. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, service treatment records show that at the time of his September 1972 separation examination, the Veteran reported that he "occasionally [had] a catch in lower back after being in one position too long, no treatment sought." Following service, in December 1977, the Veteran experienced a postural back strain while working for the U.S. Postal Service. Many years passed prior to any further symptoms of a low back disability presenting in the record. However, post-service treatment within the last ten years is suggestive of a potential relationship between a current low back disability and the service-connected right knee disability. In particular, he was seen by his private physician, Dr. J.C.C., in August 2004 for a tender back. By October 2005, he requested treatment due to what was reported as "severe back and leg pain." In November 2005, he underwent surgery for disc protrusion at L4-5. Treatment records ever since have documented ongoing pain, limited motion, and noted radiculopathy. In August 2011, this same private physician submitted a statement indicating that the "present issues with his knee are aggravating...his lumbosacral spine." This suggests that the Veteran indeed had a low back disability and that it is now potentially being worsened by the service connected right knee condition. The private physician, however, did not explain this opinion, to include explaining the basis for the opinion or describing the extent to which worsening is occurring. Moreover, the VA examiner phrased the statement as though a present "aggravating" occurrence was taking place. It is not clear whether this yielded a permanent increase in severity of an existing low back condition. The RO did obtain a VA examiner's opinion on this issue in October 2007, however, the examiner merely stated that while the Veteran has documented shortening of his right lower extremity, "it would be mere speculation on the part of the examiner to say that his right knee condition and shortening had a causal relationship to the Veteran's low back disc problem that led to surgery." This is essentially a non-opinion and lends little probative value to the analysis of this claim. For these reasons, a remand is warranted. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Left Shoulder As to the claim for an initial rating in excess of 20 percent for left shoulder rotator cuff tear, the RO should provide the Veteran with a new VA examination addressing the current severity of the disability. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA's duty to assist also includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened or the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2012). In this case, the only VA examination of the Veteran's left shoulder was in October 2007, nearly five years ago. In that such an orthopedic disability is often progressive in nature, the Board finds that findings from the October 2007 VA examination may not reflect the current state of the Veteran's left shoulder disability. A new examination is warranted to determine the current extent and severity of the Veteran's service-connected left shoulder rotator cuff tear. 38 C.F.R. § 3.159(c)(4)(i); see Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information). TDIU The Veteran's representative has specifically alleged that he is entitled to a TDIU because he is unemployable due to the impact of his service connected disabilities in the aggregate. The combination of constant pain, the sedating effects of his medication, and the inability to be on his feet for long are alleged to prevent him from being able to focus on any task in a sustained fashion and to limit his physical capabilities, thereby preventing him from securing or following a substantially gainful occupation. Because the representative is clearly alleging that the combination of service connected disabilities render the Veteran unemployable, and because there are outstanding claims related to service connection and appropriate ratings, the Board finds that the Veteran's claim for a TDIU is inextricably intertwined with the other issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, entitlement to a TDIU must again be considered after completion of the other development directed herein. Accordingly, the claims for service connection for a lumbar spine disability, for an initial rating in excess of 20 percent for the left shoulder disability, and for a TDIU are remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must schedule the Veteran for a VA spine examination to determine whether the current lumbar spine disability is related to his service-connected post-operative right total knee arthroplasty with leg shortening. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether the Veteran's current lumbar spine disability is due to or aggravated by any service-connected disorder, to specifically include his service-connected post-operative right total knee arthroplasty with leg shortening. In rendering this opinion, the examiner must address the various notations in the record discussing the Veteran's back symptoms together with his ongoing knee pain, instability and altered gait, as well as the August 2011 private physician's statement indicating that the right knee was aggravating the lumbosacral spine. Moreover, the examiner must address the Veteran's lay statements. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must schedule the Veteran for the appropriate VA examination to determine the current severity of his service-connected left shoulder rotator cuff tear. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must describe all symptomatology due to the Veteran's service-connected left shoulder rotator cuff tear, to include the degree of motion to which the Veteran's arm is limited when moving away from the side, as well as whether there is any instability, weakness, fatigability, incoordination, or flare-ups. The examiner must provide an opinion on the impact of the service-connected left shoulder disability on the Veteran's ability to work, as well as any resultant limitation of function of the left shoulder. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the left shoulder or arm, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected left shoulder disability, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected left shoulder disability. The rationale for each opinion expressed must also be provided. The report prepared must be typed 4. The RO must notify the Veteran that it is his responsibility to report for the examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination(s) was sent to the last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 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 lumbar spine and left shoulder claims must be readjudicated. The issue of entitlement to a TDIU must also be readjudicated. If any claim on appeal remains denied, the Veteran and his attorney must be provided a supplemental statement of the case. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. Accordingly, this claim must be afforded expeditious treatment. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs