Citation Nr: 1321707 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-42 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for bilateral degenerative joint disease of the knees. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a rating in excess of 10 percent for hypothyroidism. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1979 to May 1984, September 1984 to August 1989, August 1992 to October 1993, and from November 2001 to September 2002. He also had periods of service with the U.S. Navy Reserve and the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Nashville, Tennessee RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks increased disability compensation for his service-connected degenerative disc disease of the lumbar spine, degenerative joint disease of the bilateral knees, and hypothyroidism. The VA examinations that were the basis for the current ratings were conducted in May 2008. The Veteran has not been examined by VA to assess the severity of his disabilities since. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); VAOPGCPREC 11-95 (1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In this case, over five years have passed since the last VA examination, in which time the Veteran asserts his service-connected disabilities have worsened. Specifically, VA treatment records show the Veteran was treated in the emergency room for his back disability, knee disability and hypothyroidism in August 2009. In correspondence dated September 2009, the Veteran stated that his disabilities have worsened. In June 2010, he was prescribed braces for his knees and back. Also in June 2010, his thyroid stimulating hormone (TSH) levels were elevated and his medication was increased. In September 2012, a VA physical therapy evaluation showed range of motion of the thoracolumbar spine significantly worse than the range of motion reflected in the 2008 VA examination report. Under the circumstances, the Board finds that another VA examination is appropriate to address the current severity of his service-connected disabilities. Further, VA treatment records from 2010 indicate the Veteran sought treatment with a private provider for his back and knee disabilities. The last private treatment record contained in the claims file is dated October 2007. Additionally, VA treatment records show that an outside MRI was ordered in May 2012 because the Veteran was too large for VA's MRI scanner. Another outside MRI was done in an outside facility in approximately December 2009. Copies of these MRI reports are not associated with the record, but they are apparently available in Radiology PACS system, VISTA imaging, or have been scanned into the chart in Image Display. As such, the RO should undertake to obtain any private treatment records relevant to the Veteran's claims that have not yet been associated with the claims file. 38 C.F.R. § 3.159(c). The record indicates the Veteran receives continuing treatment for his disabilities at the VA medical center in Memphis. As VA medical records are constructively of record and must be obtained, the RO should obtain all updated records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition to the previously detailed reasons for remand, the Board notes that the RO associated with the Virtual VA electronic storage system additional VA clinical records not considered in the last supplemental statement of the case (SSOC) issued in January 2011. These recent VA treatment records are relevant to the claims on appeal, i.e. the September 2012 physical therapy record discussed above. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all providers of treatment and/or evaluation he has received for his service-connected back and knee disabilities since April 2007 and to provide any authorizations necessary for VA to obtain all outstanding records of any private treatment and/or evaluation. Specifically, attempts should be made to associate the following records with the paper claims folders or the Virtual VA eFolder: a. Relevant VA treatment records dated since September 2012; and b. Private records of back and knee treatment dated since 2007 (after obtaining any necessary authorization from the Veteran); and c. A May/June 2012 MRI report and a December 2009 MRI report prepared by an outside provider (these reports may be available in Radiology PACS system, VISTA imaging, or have been scanned into the chart in Image Display but are not currently in a format available to the Board for review) The RO should secure for the record copies of the complete records (not already associated with the claims file) from the sources identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. 2. The RO should then arrange for an examination of the Veteran to assess the current severity of his bilateral knee degenerative joint disease. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner must be provided a copy of the criteria for rating knee disabilities, and the findings reported must be sufficiently detailed to allow for rating under the applicable criteria, i.e., note the presence or absence of each symptom in the criteria for rating knee disabilities (under all applicable Codes), to specifically include ranges of motion (including restrictions due to pain or with use) and whether there is subluxation or instability (and if so the extent of such). The examiner must explain the rationale for all opinions. 3. The Veteran should also be afforded a VA examination to determine the current severity of his lumbar spine disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner must be provided a copy of the criteria for rating spine disabilities, and the findings reported must be sufficiently detailed to allow for rating under those criteria. Any indicated studies should be completed; the studies should specifically include range of motion studies of the lumbar spine (including restrictions due to pain or with use), and any studies indicated to ascertain whether or not the Veteran's lumbar spine disability has compensable neurological manifestations (to specifically include of the lower extremities). All symptoms and functional limitations due to the service-connected lumbar spine disability should be described in detail. The examiner must explain the rationale for all opinions. 4. The RO should then arrange for the Veteran to be afforded an endocrinology examination to determine the current severity of his hypothyroidism. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must explain the rationale for all opinions. 5. The RO should then readjudicate the claims. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ M. C. GRAHAM Acting 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).