Citation Nr: 1323097 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-34 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to a disability rating greater than 10 percent for service-connected lumbar spine right paracentral disc protrusion of L4-L4 prior to August 29, 2011, and greater than 40 percent since then. 3. Entitlement to a compensable disability rating for service-connected left knee patellofemoral pain syndrome prior to August 29, 2011, and greater than 10 percent since then. 4. Entitlement to a compensable disability rating for service-connected external hemorrhoids prior to August 29, 2011, and greater than 10 percent since then. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1989 to December 1989, February 2003 to June 2004, and August 2010 to August 2011. He also had additional service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico. In April 2013, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of the hearing has been associated with the claims file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased disability rating claim when such claim is raised by the record. Here, during the April 2013 hearing, the Veteran indicated that he was working as a physical education teacher at an elementary school. While he indicated that he had missed some time from work due to his service-connected disabilities, there is no indication in the record that such disabilities are sufficiently incapacitating as to prevent him from engaging in substantially gainful employment. Thus, the Board finds that the issue of entitlement to TDIU has not been raised. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The Board has reviewed the documents contained in such file in adjudicating the issues on appeal. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). During his April 2013 hearing, the Veteran indicated that he had been receiving ongoing treatment for the disabilities on appeal from his private physician, Dr. Pedro Velez Gonzalez. While the Veteran presented medical certificates from Dr. Velez Gonzalez during the hearing which appear to suggest that he was in need of convalescence, medical treatment records from Dr. Velez Gonzalez have not been associated with the claims file. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). As such, this matter must be remanded so as to obtain all medical treatment records of the Veteran from Dr. Velez Gonzalez. During the April 2013 hearing, the Veteran also indicated that he was receiving ongoing VA medical treatment at the Mayaguez Outpatient Clinic, dating back to 2008. A review of the Veteran's paper claims file reveals that treatment records through June 2011 have been obtained. The Veteran's Virtual VA claims file shows outpatient treatment records from the Mayaguez Outpatient Clinic dated through August 2012. As the Veteran has asserted that he is receiving ongoing regular VA treatment, on remand, treatment records of the Veteran from the Mayaguez Outpatient Clinic that have not yet been associated with the claims file must be obtained. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive, if not actual, notice of the existence of these additional VA treatment records). During the April 2013 hearing, the Veteran indicated that his service-connected disabilities on appeal had increased in severity since his most recent VA examinations in April 2011. In light of the Veteran's contentions of increased symptomatology and a review of the medical evidence of record, the Board finds that a contemporaneous examination of his service-connected low back, left knee, and hemorrhoids disabilities should be conducted. When a claimant alleges that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, the claims file includes evidence written in Spanish with no accompanying certified English translation. As this matter is being remanded for the reasons set forth above, the Board finds that all evidence written in Spanish with no accompanying certified English translation be translated into English in order to facilitate review of the record by the Board. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall ask the Veteran to complete a release authorizing VA to obtain records of his treatment from Dr. Pedro Velez Gonzalez. If he does not provide necessary releases, tell him that he can obtain and submit the records himself. If any requested records cannot be obtained, advise the Veteran of this fact, of the efforts made to obtain the records, and of any further actions that will be undertaken. 2. The RO/AMC shall obtain all records of the Veteran's treatment at Mayaguez Outpatient Clinic dating from 2008 to the present. All records obtained must be associated with the Veteran's paper claims file. 3. The RO/AMC shall have all pertinent evidence in the claims file that is written in Spanish translated to English. The translated documents must be associated with the paper claims file. 4. The RO/AMC shall arrange for the Veteran to undergo VA orthopedic and neurological examinations for the purpose of ascertaining the current severity of his service-connected low back disorder. The claims file, to include a copy of this Remand, must be made available to the examiner for review. The examiner must annotate the report to reflect review of the claims file was undertaken. The examiner is requested to address the following: (a) Provide the range of motion of the lumbar spine (extension, forward flexion, left and right lateral flexion and left and right rotation), expressed in degrees. (b) Determine whether there is weakened movement, excess fatigability, incoordination, pain or flare-ups attributable to the service connected back disability. These determinations shall be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. (c) Identify any associated neurological deformities associated with the service-connected low back disorder. The severity of each neurological sign and symptom must be reported. Identify which extremity, if any, is affected by neurological manifestations, and an assess whether the neurological symptomatology equates to "mild," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis of the associated nerve. All affected nerves must be specifically identified. (d) State whether the Veteran has intervertebral disc syndrome. If so, state whether the intervertebral disc syndrome results in incapacitating episodes, and if so, the duration of such episodes over the preceding 12 months. It is noted that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner shall comment on the impact of the back disability on employment and activities of daily life. A complete rationale for all opinions must be provided. 5. The RO/AMC shall arrange for the Veteran to undergo VA orthopedic examination for the purpose of ascertaining the current severity of his service-connected left knee disability. The claims file, to include a copy of this Remand, must be made available to the examiner for review. The examiner must annotate the report to reflect review of the claims file was undertaken. The examiner must conduct all necessary testing of the knee, including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the knee is used repeatedly over a period of time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner must specify whether the Veteran has any instability in the knee and, if so, the severity thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. The examiner must identify all current manifestations of any residual scars of the knee. If, in addition to scarring, any muscle and/or neurological impairment is identified, the examiner shall indicate whether each such impairment constitutes a distinct disability capable of being separately rated. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's left knee disability, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 6. The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the precise nature and severity of his service-connected external hemorrhoids. The claims file and a copy of this Remand shall be made available to and reviewed by the examiner. All studies deemed appropriate by the examiner shall be performed, and all findings reported in detail. The examiner must describe in detail all current symptoms of the Veteran's hemorrhoids. The examiner must state whether the Veteran's hemorrhoids more nearly approximate a disability characterized by mild or moderate severity; or large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or with persistent bleeding and with secondary anemia, or with fissures. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's hemorrhoids, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 7. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 8. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).