Citation Nr: 1320815	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  04-17 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to an increased disability rating for chondromalacia of the left patella, currently evaluated as 30 percent disabling.  

2.  Entitlement to an increased disability rating for osteoarthritis of the left knee, currently evaluated as 10 percent disabling.  

3.  Entitlement to a higher rating for right knee disability, characterized as status post tear of the medial meniscus, traumatic chondromalacia of the patella, and status post patellectomy, evaluated as 30 percent disabling prior to June 1, 2004;  50 percent disabling from June 1, 2004, to February 28, 2005; and 30 percent disabling from March 1, 2005.

4.  Entitlement to an initial disability rating in excess of 30 percent for the service-connected status post fracture of the right radial head.

5.  Entitlement to service connection for hemorrhoids, including as secondary to service-connected disabilities.

6.  Entitlement to service connection for a liver disorder, including as secondary to service-connected disabilities.

7.  Entitlement to service connection for a psychiatric disorder, to include secondary to service-connected disabilities.

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. C. Graham, Counsel

INTRODUCTION

The Veteran served on active duty from June 1969 to July 1971.

This appeal to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs Regional Offices in Manchester, New Hampshire, and Boston, Massachusetts.  A May 2003 rating decision denied service connection for hemorrhoids, and a June 2004 rating decision granted a 50 percent rating for chondromalacia patella of the right knee and reduced the left knee rating for chondromalacia patella from 30 to 20 percent.  A June 2004 rating decision reduced the right knee disability to 30 percent, effective March 1, 2005.  

It is noted that the May 2003 rating decision awarded separate 10 percent ratings for osteoarthritis of each knee; the separate rating for right knee osteoarthritis was terminated in a December 2003 rating decision.
The psychiatric disorder, liver disorder, and right elbow claims are on appeal from an April 2010 rating decision which granted service connection for a right elbow disorder and assigned a 0 percent rating and denied service connection for psychiatric and liver disorders.  Subsequently, an August 2010 rating decision increased the right elbow rating to 30 percent.  

In May 2005, the Veteran testified at a hearing before a Veterans Law Judge at the RO.  A transcript of that hearing has been associated with the claims file.  In April 2006, the Board restored the 30 percent rating for left knee disability from June 1, 2004 and remanded the remaining portion of the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC.  

In January 2010, the Board remanded the appeal to the AMC for further action, to include additional development of the evidence.  Thereafter, the RO/AMC continued to deny the claims (as reflected in a January 2012 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration.  

As noted in the January 2010 Remand, the Board remanded the case in 2006, in part, so that the AMC could issue the Veteran a statement of the case (SOC) on the issue of entitlement to restoration of a 50 percent rating for the service-connected right knee disability from March 1, 2005 pursuant to the rule in Manlincon v. West, 12 Vet. App. 238 (1999). The Board indicated that it would further consider this issue only if the Veteran submitted a timely substantive appeal. The AMC issued the SOC on June 19, 2009, but no substantive appeal was filed. Thus, this issue is not now before the Board.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202. The Board is aware that the representative listed the restoration issue in the "ISSUES PRESENTED FOR REVIEW" section of the August 5, 2009 Appellant's Post-Remand Brief. However, the Board does not find that the brief constitutes a substantive appeal regarding this issue. The representative simply lists the issue on the cover page but does not provide any specific argument relating to the restoration issue. 38 C.F.R. § 20.202 (The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed.). Indeed, the representative does not make any reference to the regulations pertaining to rating reductions (i.e., 38 C.F.R. § 3.105 and 3.344). Insofar as the representative contends that the Veteran right knee disability deserves a higher rating, see last paragraph on page 3, such argument will be addressed by the increased rating issue being remanded below.

Also before the Board in January 2010 was a claim for service connection for tinnitus.  At that time, the Board determined that service connection was warranted for tinnitus.  The RO subsequently effectuated the grant of service connection.  The issue of entitlement to service connection for tinnitus is no longer on appeal.

In August 2012, the Board remanded the claims on appeal to the RO as the Veterans Law Judge who conducted the May 2005 hearing was no longer available to consider the Veteran's appeal as an individual Veterans Law Judge (VLJ), and the Veteran desired an in-person hearing before another VLJ.  In September 2012, the Veteran testified at a hearing before the undersigned VLJ at the RO.  A transcript of that hearing has been associated with the claims file.

The Board notes that the Veteran was awarded a temporary 100 percent disability rating effective from December 15, 2010, to March 31, 2011 for the left knee and from April 7, 2005, to May 31, 2005 for the right knee under 38 C.F.R. § 4.30 based on surgical treatment necessitating convalescence.  Also, a total 100 percent schedular rating was assigned for the right knee from March 3, 2010, to March 31, 2011, following prosthetic replacement of the knee joint.

The increased rating claims on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC.  

FINDINGS OF FACT

1.  Resolving doubt in the Veteran's favor, the evidence demonstrates that the Veteran's hemorrhoids were caused or aggravated by medications taken for his service-connected orthopedic disorders.

2.  At no time during the current appeal period has the Veteran been found to have a disability manifested by an enlarged liver or abnormal liver function tests.
3.  Resolving doubt in the Veteran's favor, the evidence demonstrates that his PTSD and major depressive disorder were caused or aggravated by his service-connected orthopedic disorders.

CONCLUSIONS OF LAW

1.  Hemorrhoids are proximately due to, or aggravated by, medications taken for service-connected orthopedic disorders.  38 U.S.C.A. §§ 1110, 5107 (West 2009); 38 C.F.R. § 3.303, 3.310 (2012).

2.  An enlarged liver or abnormal liver function tests because of disease or injury incurred in, or aggravated by, his military service or as proximately due to or aggravated by medications taken for service-connected disorders.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

3.  PTSD and major depressive disorder are proximately due to, or aggravated by, medications taken for service-connected orthopedic disorders.  38 U.S.C.A. §§ 1110, 5107 (West 2009); 38 C.F.R. § 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duty to Notify and the Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

With respect to the hemorrhoid and psychiatric disorder (PTSD and major depressive disorder) claims, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist as regards those claims, such error was harmless and will not be further discussed.  

With respect to the liver disorder claim, the RO evidently provided notice to the Veteran in a January 2010 letter.  A copy of this letter is not present in the paper claims folder or eFolder.  However, the April 2010 rating decision and the November 2011 statement of the case (SOC) are of record and lists among the evidence in the case the VCAA letter sent to the Veteran in January 2010, prior to the rating decision on appeal.

Application of the presumption of regularity requires that, in the absence of clear evidence to the contrary, it must be assumed that VA accurately discharged its duties and that the letter referred to in the rating decision and SOC properly notified the Veteran of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006).  See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998) regarding VA discharge of official duties.  

Regardless, the Veteran has demonstrated his actual knowledge of the requirements for service connection by submitting evidence, including hearing testimony, in support of this assertion, and an explanation was provided as to why that evidence was not sufficient to establish his claim.  At numerous times throughout the appeal, the appellant and his representative were invited to submit additional arguments or evidence.  Any deficiencies constitute no more than harmless error.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In the current appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained service treatment records, VA treatment records, and private treatment records.  The Veteran was also afforded a hearing before the undersigned VLJ with respect to the liver disorder claim in September 2012.  

Furthermore, with respect to the claimed liver disorder, there is simply no competent evidence, medical or lay, indicating that the Veteran suffers from a liver disability.  In fact, the Veteran expressly stated that his liver diagnosis was "elevated liver function tests, active" during the 2012 hearing.  See September 2012 hearing testimony at 12.  With regard to the claimed liver disorder, the only evidence of record is enlarged liver and elevated liver function tests at one point during the appeal.  More recent liver function tests in 2009 were noted to be normal.  Regardless, as discussed below, elevated or abnormal liver function tests are not sufficient to indicate a chronic liver disability.  On these facts, a VA examination is not required with respect to the liver disorder claim.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004).  
II.  Service Connection Claims

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Caluza v. Brown, 1 Vet. App. 498 (1995).  

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a), which includes psychoses.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). 

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).

Service connection may be granted for disability which is proximately due to or the result of service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation.  Given what appear to be substantive changes, and because a portion of the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the claimant.

Lay evidence is competent to establish observable symptomatology; however, VA may make determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence.  The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so.  See Owens v. Brown, 1 Vet. App. 429 (1995).

A. Hemorrhoids

The Veteran contends that his hemorrhoids are related to medications taken for his service-connected knee disabilities and, as such, should be service-connected on a secondary basis.

The Board notes that the Veteran is currently diagnosed with hemorrhoids as noted in the December 2008, November 2010, and January 2012 VA examinations.  As such, the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303.  

As noted above, the Veteran was afforded a VA examination in December 2008, at which time the examiner opined that the Veteran had "mild to moderate hemorrhoidal symptoms, which are probably exacerbated by medications that he takes for his joint disease."  In February 2009 the claims folders were reviewed, and the examiner found that such a review resulted in no change in her assessment.

However, the Veteran was then afforded another VA examination in January 2012, at which time the examiner opined that hemorrhoids were less likely than not due to or the result of a service-connected condition because the Veteran "was on opioids for a considerable length of time with no constipation and straining complaints."  The examiner noted that the Veteran's contention was that the hemorrhoids were due to opiods; however, the Veteran testified in September 2012 that he believed his hemorrhoids were due to non-steroidal anti-inflammatory drugs (NSAIDS).  See September 2012 transcript at 9.  The Board notes that the Veteran is service-connected for gastritis, including blood in his stool, due to NSAIDs taken for his service-connected knee disorders.  The examiner also concluded that the Veteran's hemorrhoids were less likely than not due to service because there was no mention in the service treatment records (STRs) of any complaints of hemorrhoids or evidence of examination in service or within the first post-service year.  
As such, the evidence is at least in equipoise with regard to whether the Veteran's hemorrhoids were caused or aggravated by medication for his service-connected knees.  Accordingly, the Board finds that the Veteran's claim for service connection for hemorrhoids must be granted.

In light of the December 2008 VA examiner's statement that the Veteran's hemorrhoids were caused by medication for his service-connected orthopedic disorders (bilateral knees and right elbow), there exists an approximate balance of evidence for and against the claim.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes service connection for hemorrhoids must be granted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

B. Liver Disorder

The Veteran is also seeking service connection for a liver disorder.  He testified that he has an enlarged liver and abnormal liver function testing due to medications he takes for his service-connected disabilities.  However, the record contains no medical evidence that at any time during the current appeal he has had a liver disorder manifested by an enlarged liver and/or abnormal liver function testing.  Therefore, this claim also must be denied for lack of a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also McClain v. Nicholson, 21 Vet. App. 319 (2007).  

STRs are also negative for complaints, findings, or treatment suggestive of a liver disorder, to include an enlarged liver or abnormal laboratory findings.  Post-service records include an October 2001 abdominal ultrasound which noted a heterogeneous liver and found no significant or minor abnormality.  A June 2007 VA abdominal echogram noted a history of "elevated left's" and the echogram revealed a heterogeneous enlarged fatty liver.  A May 2010 VA examination report noted that November 2009 laboratory data showed "liver function test normal."  

Elevated liver function test results and enlarged liver on echogram amount to no than mere clinical findings and not an actual underlying disability, as required for a successful service connection claim.  In this regard, the Court has defined "disability" as an impairment of earning capacity resulting from a disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  "Injury has been defined as 'damage inflicted on the body by an external force.'"  See Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing Dorland's Illustrated Medical Dictionary 901 (29th ed. 2000)).  "Disease has been defined as 'any deviation from or interruption of the normal structure or function of a part, organ, or system of the body.'" Id. at 1384 (citing Dorland's at 511).  Thus, an enlarged liver and/or temporarily elevating liver function test results would not constitute a disability for VA purposes.  Cf. 61 Fed. Reg. 20440, 20445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities.  As a result, they are not appropriate entities for the rating schedule.).

Thus, the only evidence of record supporting the Veteran's claim is his own lay opinion.  While there is some indication in the record that the Veteran is a licensed mental health care worker (see April 2010 rating decision), there is no evidence that the Veteran has any specialized training or expertise with respect to disorders of the liver.  Accordingly, the Board finds that the Veteran is a lay person for purposes of his liver disorder claim.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board has considered the Veteran's statements regarding the existence of a liver disorder.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a liver disorder falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The Veteran is competent to testify about symptoms of liver disability he has observed; however, the diagnosis of a liver disorder cannot be established by lay observation, it is a complex medical question that requires medical expertise on the significance of symptoms noted, whether they form the constellation of symptoms needed to support a liver disorder diagnosis, and whether they can be attributed to service or a service-connected disability.  This is particularly true here, where the Veteran has acknowledged a history of alcohol abuse and where VA treatment records link elevated liver function tests to alcohol consumption.  See August 1997 VA treatment record.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating liver conditions.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Thus, the Veteran's self-diagnosis of a liver disorder has no probative value. 

The preponderance of the evidence is against a finding that the Veteran has a current disability manifested by an enlarged liver or elevated liver function tests.  Accordingly, the appeal is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

C. Psychiatric Disorder 

The Veteran contends that his psychiatric disorder is related to his service-connected knee disabilities and, as such, should be service-connected on a secondary basis.  In this regard, the Board notes that the Veteran is currently diagnosed with PTSD and major depressive disorder as noted in the September 2012 PTSD Disability Benefits Questionnaire (DBQ) and VA treatment records.  Thus, the Veteran has a current disability as required by 38 C.F.R. § 3.303.  

The September 2012 clinical psychologist, Dr. M. J. Fosse, opined that the Veteran has PTSD and major depressive disorder "secondary to his service-connected disabilities and clearly connected to his military service."  Dr. Fosse reviewed and endorsed VA treatment records indicating that the Veteran's physical "pain [due to his service-connected orthopedic disabilities] as a major ongoing stressor."  She also reviewed and endorsed the Veteran's wife's written statement that "[p]ain became part of our daily lives as his knees deteriorated, severely limiting activities and causing the depression to worsen."

The Board is cognizant of the fact that the RO noted VA treatment records reflecting a lifelong history of intermittent depression related to a traumatic childhood, including severe physical abuse from his father.  Thus, the evidence is at least in equipoise as to whether the Veteran's PTSD and major depressive disorder were caused or aggravated by his service-connected knees and/or service.  Accordingly, the Board finds that the Veteran's claim for service connection for PTSD and major depressive disorder must be granted.

In light of the September 2012 DBQ concluding that the Veteran's PTSD and major depression were caused by pain due to his service-connected orthopedic disorders (bilateral knees and right elbow), there exists an approximate balance of evidence for and against the claim.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes service connection for rectal bleeding must be granted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Service connection for hemorrhoids is granted.

Service connection for a disorder manifested by enlargement of the liver or abnormal liver function test results is denied.

Service connection for PTSD and major depressive disorder is granted.


REMAND

At the September 2012 hearing, the Veteran testified that his knee and right elbow symptoms have continued to worsen in the past few years and have worsened since his last VA examinations (which were performed in June 2010).  See September 2012 Hearing Transcript, (T.) pp. 16, 18.  The Veteran also testified that since then his knee instability has increased and that he has experienced increased pain, decreased range of motion, and loss of function in the right elbow.  
The Board notes that, with respect to the left knee, since the last VA examination in June 2010, the Veteran has undergone a unicompartmental knee replacement in December 2010.  Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], in order to ensure that the record reflects the current severity of these conditions, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to evaluate properly the service-connected disabilities under consideration.  Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses level of impairment since previous examination); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995) (VA examination required in increased rating claim where Veteran asserts condition worsened since most recent VA examination).

The RO's development of the claims also suggests that a temporary claims folder has been created and located at the RO.  See January 5, 2012 e-mail included in Volume 7 of the paper claims folder.  In accordance with any applicable policies, the temporary folder must be consolidated with the Veteran's claim folder.

The Board also notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Attempts should be made to obtain the Veteran's updated VA treatment records, which pertain to treatment he may have received for his bilateral knee and right elbow conditions, that are not already included in the paper or electronic file.

Accordingly, the case is REMANDED for the following action:

1. In accordance with any applicable policies, any temporary claims folder must be consolidated with the Veteran's main claim folder.
2. After obtaining any necessary authorization from the Veteran, request copies of relevant records pertaining to treatment he has received for his knees and right elbow from private facilities that have not yet been associated with the paper claims files or eFolder.

3. Request relevant records of knee and right elbow treatment the Veteran has received at VA facilities, including the Boston Health Care System from 2007 to the present (excepting any such records in the temporary claims folder to be associated with the paper claims folders or eFolder).  All such available documents should be associated with the paper claims file or the eFolder, and all efforts to obtain the evidence must be noted it the claims file.

4. Then, schedule the Veteran for an appropriate VA examination to determine the nature and extent of his service-connected right knee, left knee, and right elbow disabilities.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Any testing deemed necessary, including X-rays, should be performed.  All pertinent pathology associated with the service-connected bilateral knee and right elbow disorders should be noted in the examination report-including any limitation of motion, instability, or any ankylosis associated with each of these disorders.

Also, the examiner should discuss whether each knee and the right elbow exhibit weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorder.  If feasible, this 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 each knee and the right elbow repeatedly over a period of time.

The examiner should specifically comment on the impact of these service-connected knee disabilities and the service-connected right elbow disability on the Veteran's industrial activities, including his ability to obtain and to maintain employment.

5. Thereafter, re-adjudicate the issues of entitlement to higher ratings for the service-connected left knee, right knee, and right elbow disorders.  If any decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case and an appropriate period of time should be allowed for response.

No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655 (2012).  He has the right to submit additional evidence and argument on the matters that 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 remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs