Citation Nr: 1316889 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-13 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for hypertension, to include as secondary to diabetes mellitus. 2. Entitlement to service connection for a kidney disorder, to include as secondary to diabetes mellitus. 3. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the left shoulder. 4. Entitlement to an initial disability rating in excess of 20 percent for osteoarthritis of the right shoulder. 5. Entitlement to an initial compensable disability rating for onychomycosis. 6. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee. 7. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. 8. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities prior to January 29, 2010. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from September 1963 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2008 and March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. As the Veteran moved, jurisdiction over the case now resides with the RO in Pittsburgh, Pennsylvania. In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. Although the Veteran requested a videoconference hearing, the Board finds no prejudice in having afforded him a more favorable in-person hearing. At that time, he submitted additional evidence with a waiver of RO review. The record was held open for 30 days following the hearing to provide the Veteran with additional time to submit medical evidence. In August 2012, he submitted additional evidence with a waiver of RO review. In the March 2009 rating decision, the RO denied the claim for service connection for hypertension. However, in a June 2004 rating decision, the RO had previously denied service connection for hypertension. The Veteran did not appeal that rating decision or submit any new and material evidence within a year following that decision. See Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, that decision is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2012). Therefore, new and material evidence is needed to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002). In the August 2008 notice letter on the hypertension claim, the RO acknowledged the prior denial but failed to consider the claim properly in the rating decision on appeal or in the statement of the case. Notwithstanding the RO's action, the Board must decide whether new and material evidence has been received to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board has phrased the issue as stated on the title page. As the appeal involves a request for a higher initial rating following the grant of service connection, the Board has characterized those rating issues as stated on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part of a claim for a higher rating when such claim is raised by the record or asserted by the veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court further held that, when evidence of unemployability is submitted at the same time that the veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran testified that he quit his job because of health problems. Although he did not specify which health problems lead to his unemployment, as he is service connected for numerous disabilities, the record reasonably raises the issue of entitlement to a TDIU due to service-connected disabilities. In a July 2010 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating effective January 29, 2010. That award resulted in a combined evaluation of 100 percent effective January 29, 2010. As such, although the issue of entitlement to a TDIU is moot from that date, the Veteran may still be entitled to a TDIU prior to that date. Thus, the issue has been phrased as listed on the title page. In a July 2012 statement, the Veteran raised the issue of entitlement to a disability rating in excess of 30 percent for PTSD. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In this decision, the Board denies the claim for service connection for a kidney disorder and grants an initial 10 percent disability rating for onychomycosis of each foot. The remaining issues 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran currently does not have a kidney disorder. 2. The Veteran's onychomycosis of the left foot involves less than 5 percent of the entire body area and less than 5 percent of exposed areas and has not required systemic therapy, but is manifested by pain on examination. 3. The Veteran's onychomycosis of the right foot involves less than 5 percent of the entire body area and less than 5 percent of exposed areas and has not required systemic therapy, but is manifested by pain on examination. CONCLUSIONS OF LAW 1. The criteria for service connection for a kidney disorder, to include as secondary to diabetes mellitus, have not been met. 38 C.F.R. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for a 10 percent disability rating, but no higher, for onychomycosis of the left foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.7 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). 3. The criteria for a 10 percent disability rating, but no higher, for onychomycosis of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.7 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim regarding onychomycosis arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. With respect to the claim for service connection for a kidney disorder, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in May 2008 of the criteria for establishing secondary service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in March 2009. Nothing more was required. The Board notes that the Veteran was not notified of the criteria for establishing direct service connection for his kidney disorder. However, he filed a claim for service connection for a kidney disorder as secondary to his service-connected diabetes mellitus and he has contended throughout the appeal that he developed a kidney disorder as a complication of his diabetes mellitus. Thus, the Board finds that the RO has provided adequate notice and there is no prejudice in the lack of such notice. Moreover, the record shows that the Veteran currently does not have a kidney disorder. As such, remanding the case to provide such notice would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Sabonis v. Brown, 6 Vet. App. 426 (1994). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA provided the Veteran with an examination in August 2009 to determine the nature and etiology of his claimed kidney disorder and nature and severity of his onychomycosis. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base decisions on the claims. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the kidney disorder claim and evaluate the onychomycosis under the applicable rating criteria. A brief but relevant and important opinion was provided on the kidney disorder. The Board finds the opinion to be adequate, as it was based on a full reading of the private and VA medical records in the claims file as well as the Veteran's own statements. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also 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) (2012). In this case, the disorder at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) (2012) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Veteran claims that he developed a kidney disorder from the medications he has taken to treat his service-connected diabetes mellitus. During his Board hearing, he testified that he had been diagnosed with a kidney disorder by his VA physician in 2002 and had been prescribed medication, and that is why his kidney function is currently normal. He also testified that he did not know that he had any kidney problems until told by his physician. Records from the East Orange VA Medical Center (VAMC) in New Jersey indicate that June 2009 laboratory work revealed protein in the urine. Records of VA and private medications do not show any medication specific to kidney problems. An August 2009 VA examination report reflects that the Veteran had been told by his primary care physician that urinalysis previously revealed abnormalities with respect to kidney function. The Veteran denied a history of being on dialysis or evaluated by a nephrologist, and noted that blood work previously showed a normal creatinine level. He reported taking oral diabetes medication but not insulin and denied any complications of diabetes requiring hospitalization including diabetic ketoacidosis or hypoglycemia. He also noted having high blood pressure that was well controlled on medication. The examiner ordered a urinalysis, which showed normal creatinine and GFR levels and trace amounts of protein. The examiner stated that the Veteran has mild proteinuria but recent blood work shows normal creatinine and GFR which reflect normal kidney function. The examiner specified that the Veteran does not have chronic renal insufficiency at this time. Records from the Butler VAMC in Pennsylvania show that blood work in October 2009 and April 2010 revealed normal creatinine and protein levels and eGFR levels greater than 60, which were noted as being imprecise and warranting monitoring over time. In May 2010, the Veteran reported that his VA physician in New Jersey had told him that he "might have kidney problems" and requested an evaluation of kidney function. Later that day, it was noted by a physician that all testing at Butler essentially showed that the Veteran's renal function was within normal limits. Records of VA and private medications do not show any medication specific to kidney problems. Given the above, the Board finds that the Veteran currently does not have a kidney disorder within the meaning of VA laws and regulations. Although VA medical records show abnormalities in his laboratory work, they do not show a diagnosis of a kidney disorder. A May 2010 treatment note reflects a physician's observation that all recent testing indicated normal renal function. The VA examiner also noted the prior abnormal laboratory findings but observed that recent laboratory findings indicate normal kidney function. The examiner also specified that the Veteran does not have chronic renal insufficiency. The Board observes that abnormal laboratory findings that result in no objective symptomatology do not constitute a disability for VA purposes, as there is no industrial impairment. See 38 C.F.R. §§ 4.1, 4.10 (2012); 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule). In this regard, the Veteran indicated during his Board hearing that he did not have any impairment associated with the abnormal laboratory findings. To the extent that the Veteran himself contends that he has a current disability, as a lay person, he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as diagnosing himself with a kidney disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining 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). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). In the absence of evidence of a current disability, service connection for a kidney disorder is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board notes the Veteran's contentions that his kidney disorder is secondary to his service-connected diabetes mellitus. In this case, however, the Board need not address those contentions as the claimed disorder does not result in a disability for which service connection may be granted. The Board also notes the Veteran's testimony and that of his representative that he currently does not have a kidney disorder because it was treated with medication in 2002 when diagnosed. However, the Board observes that the evidence on appeal dating from the Veteran's claim in May 2008 does not show that he has a kidney disorder or has been taking medication to treat a kidney disorder. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In the event the Veteran's laboratory abnormalities begin to affect kidney function or cause some other symptomatology, he can submit a new claim for service connection. However, at this time, in the absence of a current disability, service connection may not be granted. In conclusion, service connection for a kidney disorder, to include as secondary to diabetes mellitus, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran has been assigned a 0 percent disability rating for onychomycosis of both feet effective May 12, 2008. Onychomycosis is a fungal infection of the toenails, and is rated under Code 7820, which provides that infections of the skin, including fungal infections, are to be rated as disfigurement of the head, face or neck under Diagnostic Code 7800; scarring under Diagnostic Codes 7801-7805; or dermatitis under Diagnostic Code 7806, depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. April 2008 and March 2009 letters from a private podiatrist note that the Veteran has chronic onychomycosis with ingrowing toenails. Private medical records from January 2009 to August 2009 show complaints of pain, itching and soreness due to onychomycosis, which involved all of the toenails. They also show recurring ingrowing toenails and that the toes were sensitive to touch. During an August 2009 VA examination, the Veteran complained of problems with his toenails with occasional itching. He reported receiving routine toenail care and using topical ointment. He denied any functional impairment. On examination, the toenails were thick, dystrophic and discolored but there was no tinea pedis. The examiner observed that the lesions involved less than 0.2 percent of total body area and 0 percent of exposed area. The examiner noted that the lesions were covered and superficial. VA medical records through May 2010 show complaints of painful fungal toenails; findings of long, yellow, thick, crumbly toenails; and diagnoses of onychomycosis. They also reflect treatment with a topical cream. The Board has considered the Diagnostic Codes applicable to scars in rating the Veteran's disability. Diagnostic Code 7800 does not apply to this claim since this code pertains to disfigurement of the head, face or neck. Compensable ratings are not warranted under Diagnostic Codes 7801 and 7802 because there is no evidence that the disability is analogous to deep scars associated with underlying soft tissue damage; that it causes limited motion; or that it affects an area exceeding 144 square inches. Compensable ratings are also not warranted under Diagnostic Codes 7803 and 7805 since there is no evidence that the disability is analogous to a superficial, unstable scar or that it results in limitation of function of the toes. There is evidence, however, to support the assignment of a 10 percent rating for onychomycosis of each foot by analogy to painful scars under Diagnostic Code 7804. The record indicates consistent complaints of painful toes since the effective date of service connection. The April 2008 and March 2009 letters reflect chronic ingrowing toenails associated with onychomycosis which the Board observes are often painful. Although the Veteran did not complain of pain or sensitivity during the August 2009 VA examination, the other medical evidence of record clearly documents such complaints. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted under Code 7804 for onychomycosis of each foot by analogy since the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes a revision to the ratings provisions governing scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, Diagnostic Code 7806 was not affected by those revisions. The October 2008 revisions are applicable to an application for benefits received by VA on or after October 23, 2008. Id. In this case, the Veteran filed his claim in May 2008, and he has not requested review under the new criteria. Thus, the post-October 2008 version of the schedular criteria does not apply to the instant claim, and no additional process or consideration is warranted at this time. The Board has considered whether the Veteran may be entitled to an even higher rating under Diagnostic Code 7806. Under that code, a 30 percent rating is warranted if 20 to 40 percent of the entire body is affected, or 20 to 40 percent of exposed areas are affected; or if systemic therapy such as corticosteroids or other immuno-suppressive drugs have been required for at least six weeks, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118. In this case, the evidence of record does not show that the Veteran's onychomycosis covers at least 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected; or that systemic therapy has been required for at least six weeks during the past 12-month period. The VA examiner stated that the onychomycosis affected 0.2 percent of total body area and 0 percent of exposed body area, and the record shows only topical treatment. Thus, the Board finds that the disability picture for onychomycosis of either foot does not more closely approximate the criteria for a 30 percent rating under Diagnostic Code 7806. Extra-Schedular The Board must also determine whether the schedular evaluation 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). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are adequate. An evaluation in excess of that assigned is provided for certain manifestations of the Veteran's onychomycosis of each foot, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. ORDER Service connection for a kidney disorder, to include as secondary to service-connected diabetes mellitus, is denied. An initial 10 percent disability rating for onychomycosis of the left foot is granted, subject to the provisions governing the award of monetary benefits. An initial 10 percent disability rating for onychomycosis of the right foot is granted, subject to the provisions governing the award of monetary benefits. REMAND The Board finds that further development is needed prior to a disposition of the remaining claims. With respect to the hypertension, as noted in the introduction, the issue of whether new and material evidence has been received to reopen the previously denied claim must first be addressed. The RO must adjudicate that issue in the first instance. In claims to reopen, VA must both notify the veteran of the evidence and information necessary to reopen the claim and notify the veteran of the evidence and information necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy that requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In the previous June 2004 rating decision, the RO denied service connection for hypertension since the disorder neither occurred in nor was caused by service, nor was secondary to diabetes mellitus. However, the August 2008 notice letter only stated that the claim had been previously denied because the hypertension neither occurred in nor was caused by service. Although the letter later asked for evidence showing a connection between the hypertension and diabetes mellitus, to ensure due process, a corrective notice letter should be provided on remand. With respect to the Veteran's shoulder disabilities, he was last examined by VA in December 2007. On an April 2009 VA Form 9, he indicated that his shoulders have worsened since that examination. However, he has not been reexamined. Given his assertions, and as the examination report is now over five years old, he should be afforded a new examination to determine the current severity of his shoulder disabilities. With respect to the Veteran's knee disabilities, he was last examined by VA in September 2008. During his Board hearing, he indicated that his knee disabilities have worsened since that examination, to include now having instability due to weakness. The above examination report is also inadequate for rating purposes. Although the examiner noted that the Veteran has pain on range of motion testing, the examiner did not state when the pain began or ended. Thus, the Veteran should be afforded a new examination to determine the current severity of his knee disabilities and obtain adequate information regarding pain. Prior to the examinations, any outstanding VA medical records should be obtained. The record contains treatment notes from the Butler VA Medical Center (VAMC) through May 2010. Thus, any outstanding treatment notes since that time should be obtained. The Board notes that the Veteran submitted VA medical records from May to September 2011. However, they are specific to his shoulders and knees. Thus, all treatment notes since May 2010 not already of record should be obtained. As the claims being remanded could affect the claim for a TDIU due to service-connected disabilities prior to January 29, 2010, the Board finds that the claims are inextricably intertwined and a Board decision on the TDIU claim at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter pursuant to Kent informing him of any information and evidence not of record that is necessary to reopen the claim of entitlement to service connection for hypertension, that VA will seek to provide and that the Veteran is expected to provide. In addition, the letter should advise the Veteran of the specific reasons for the denial of the previous claim, what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial, and the requirements for substantiating the underlying service connection claim. 2. Obtain all outstanding records of treatment not already of record from the Butler VAMC since May 2010. 3. Then, schedule the Veteran for VA examination to determine the nature and severity of his bilateral shoulder and bilateral knee disabilities, as well as entitlement to TDIU prior to January 29, 2010. The claims folder must be made available to the examiner for review, and a notation to the effect that this review took place should be included in the report. The report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies, including X-rays and tests designed to assess ligament stability and strength, are to be performed, and the examiner should review the results of any testing prior to completing the report. All pertinent pathology associated with the service-connected bilateral shoulder and bilateral knee disabilities should be noted, including any limitation of motion (with a notation of when pain begins and ends), instability or ankylosis. If any knee instability is found, the examiner should indicate whether it is slight, moderate or severe. The examiner should discuss whether the shoulders and knees exhibit weakened movement, excess fatigability or incoordination that is attributable to the service-connected disabilities. If feasible, that determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his shoulders and knees repeatedly over a period of time. The examiner should also discuss the impact (if any) of the service-connected shoulder and knee disabilities on the Veteran's ability to obtain and maintain employment. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to January 29, 2010. Further or separate examination may be obtained, if deemed necessary. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then, readjudicate the claims, including adjudication of the claim for a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. The case should be returned to the Board for further appellate review, if in order. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs