Citation Nr: 1320711 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-17 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for post operative residuals, removal of semi-lunar cartilage of the left knee (hereinafter "left knee disability"). 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left knee disability. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left knee disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from September 1970 to April 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In February 2009, the Veteran testified during a hearing before RO personnel. A transcript of that hearing is associated with the claims file. Pursuant to the Veteran's request, he was scheduled for a hearing before the Board in March 2010. Despite a February 2010 response from the Veteran that he would report to the Travel Board hearing as scheduled, he failed to appear. Since the Veteran failed to report for the hearing or provide good cause for that absence, and has not requested that the hearing be rescheduled, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). 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 With regard to the Veteran's claim for an increased rating for his service-connected left knee disability, the Board notes that the Veteran last underwent a VA examination in August 2007. The Veteran, through his representative intimates that there has been an increase in severity of his left knee disability. When a veteran has indicted that a service connected disability is worse than it was at the time of his most recent VA examination, as is the case here, it is within VA's duty to assist that he be afforded a new examination in order to accurately assess the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); VAOPGCPREC 11-95 (April 7, 1995). A new examination should be provided for his left knee. In the August 2007 VA examination, the VA examiner opined that he did not feel that his complaints pertaining to his right knee, back and neck conditions were a result of his service-connected left knee complaints. The VA examiner provided a rationale that he felt since the Veteran had multiple surgical procedures and his chronic narcotic dependence, and has really not sought any intervention to try to correct his multiple ailments, that these are isolated complaints not related to his service-connected condition. In an April 2013 appellate brief, the Veteran's representative asserts that this opinion is "confusing" and fails to adequately address the criteria for secondary service connection. The Board agrees. A disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). Based on the evidence of record, it still remains unclear to the Board whether the Veteran suffers from a cervical spine, low back and/or right knee disability that was caused or aggravated by his service-connected left knee disability or is otherwise related to service. An additional VA examination and opinion is necessary to resolve these issues. The Board also notes that in the April 2013 appellate brief, the Veteran's representative stated that there are outstanding VA medical records dated from January 2009 to the present that are not associated with the claims file, to include those from a VA clinic in Greensburg and a pain clinic at University Drive in Oakland, as indicated by the Veteran during the June 2008 RO hearing. Finally, during the February 2009 RO hearing the Veteran stated that he was unable to obtain to retain substantially gainful employment due to the pain medications he took for his service-connected left knee disability. Put another way, the Veteran has raised the issue of entitlement to a TDIU as part of his claim for an increased rating. The RO has not expressly developed or adjudicated that issue. Nevertheless, a TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and his representative a letter satisfying the duty to notify provisions with respect to his claim for an increased rating on the basis of TDIU. Also request that he complete a TDIU claim form. In addition, the letter should request that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. 2. Obtain all outstanding VA treatment records dated from January 2009 to the present, to include records from a VA clinic in Greensburg and a pain clinic at University Drive in Oakland. If there are no such records, this should be documented in the claims folder. 3. After obtaining the above records, and any additional records identified by the Veteran, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left knee disability. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner is requested to determine the severity of the Veteran's service-connected left knee disability with specific findings of impairment reported in detail. The examiner should conduct range of motion studies of the left knee, expressed in degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences likely functional loss of the left knee due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should identify all impairments affecting the left knee. The examiner should specifically indicate whether arthritis is present (confirmed by X-ray findings). Lastly, the examiner should indicate whether there is recurrent subluxation or lateral instability of the left knee and, if so, whether it is slight, moderate or severe. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected left knee disability precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. 4. Then, the Veteran should be scheduled for a VA examination, by an examiner with the appropriate expertise, to determine the nature and etiology of any diagnosed cervical spine, lumbar spine and right knee condition. The entire claims file must be provided to the examiner, and the examiner should indicate that the claims folder was reviewed. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is requested to identify all diagnosed cervical spine, lumbar spine and right knee disabilities and opine whether it is at least as likely as not (50 percent or greater probability) that each disability had its onset in service or is otherwise etiologically related to his active military service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine, lumbar spine, and/or right knee disability (a) was caused, or (b) is aggravated (permanently made worse) by the Veteran's service-connected left knee disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In providing these opinions, the examiner should reconcile the August 2007 VA examiner's opinion and any other opinions of record. 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). 5. After ensuring compliance with the instructions above, and undertaking any additional development deemed necessary, readjudicate the claims for an increased rating for a left knee disability and the claims for service connection for a cervical spine, lumbar spine and right knee disability, and for a TDIU. With regard to the service-connected left knee disability, consideration should be given to all applicable diagnostic codes and VA General Counsel opinions (such as 9-98 that allows for separate ratings for lateral instability and arthritis of a knee (if shown by X-ray) and 9-04 that allows for separate compensable ratings for limitation of flexion and limitation of extension of a knee). If the Veteran does not meet the rating criteria under 38 C.F.R. § 4.16(a) , but his service-connected left knee disability prevents him from obtaining and following a substantially gainful occupation, refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration of entitlement to TDIU. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case, and allow the appropriate period of time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. HERMAN 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).