Citation Nr: 1324774 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-03 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability to include as secondary to the service-connected disability of the lumbosacral spine. 2. Entitlement to service connection for a bilateral knee disability to include as secondary to the service-connected disability of the lumbosacral spine. 3. Entitlement to service connection for radiculopathy of the left lower extremity. 4. Entitlement to a rating higher than 20 percent rating for a herniated disc, L5-S1, of the lumbosacral spine. 5. Entitlement to a rating higher than 10 percent rating for radiculopathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1967 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND On the claims of service connection for a bilateral shoulder disability and for a bilateral knee disability to include as secondary to a service-connected disability of the lumbosacral spine, the Veteran was afforded a VA orthopedic examination in September 2008. As the VA examiner did not specifically address aggravation, the examination is inadequate to decide the claims under the applicable theories of service connection and further development under the duty to assist is needed. On the claim of service connection for radiculopathy of the left lower extremity, a VA examination for current findings under the duty to assist is needed. On the claims for increase for residuals of a herniated disc of the lumbosacral spine and for radiculopathy of the right lower extremity, in July 2011 at his hearing, the Veteran testified that his service-connected disability of the lumbosacral spine was worse and that he had increased pain in lower back in the lower extremities. As the evidence suggests a material change in the disabilities, a reexamination to determine the current severity of the disabilities is needed. As the evidence of record is insufficient to decide the claims, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain the records pertaining to the total knee replacements in November 2007 at the Baylor University Medical Center in Dallas, Texas. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that: a). The bilateral shoulder sprain and X-ray findings as shown of VA examination in September 2008 were caused by or aggravated by the service-connected residuals of a herniated disc, L5-S1, of the lumbosacral spine; and b). The tricompartmental degenerative joint disease of the knees by X-ray in February 2006, resulting in total knee replacements in November 2007, was caused by or aggravated by residuals of a herniated disc, L5-S1, of the lumbosacral spine? In formulating the opinion, the VA examiner is asked to consider that the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of the disabilities of the shoulders or knees or both beyond the natural clinical course of the disabilities as contrasted to a temporary worsening of symptom. The Veteran's file must be made available to the VA examiner for review. 3. Afford the Veteran a VA examination, including electromyography and nerve conduction studies, to determine the current severity of the residuals of a herniated disc, L5-S1, of the lumbosacral spine, including radiculopathy of the right lower extremity or radiculopathy of the left lower extremity. The VA examiner is asked to specifically address the following: a). Range of forward flexion of the thoracolumbar spine in degrees, including additional limitation of flexion due to functional loss, such as weakness, atrophy, excess fatigability, instability of station, disturbance of locomotion, interference with sitting and standing and weight-bearing, and repetitive motion. b). Any objective neurological abnormality in the right and left lower extremities, that is, any motor or sensory loss, and, c). Any incapacitating episodes (a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician). The Veteran's file must be provided to the VA examiner for review. 4. After the above development is completed adjudicate the claims. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). The claims 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). _________________________________________________ George E. Guido Jr. 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).