Citation Nr: 1331144 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-38 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating higher than 10 percent for genu recurvatum with chondromalacia of the right knee. 2. Entitlement to an increased rating higher than 10 percent for genu recurvatum with chondromalacia of the left knee. 3. Entitlement to service connection for a bilateral hip disability, secondary to the service-connected bilateral knee, back, and or left femoral nerve impingement disabilities. 4. Entitlement to service connection for a right leg disability, secondary to the service-connected bilateral knee, back, and or left femoral nerve impingement disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from December 1981 to November 1983. This matter comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, denied an increased rating for the bilateral knees and denied service connection for a bilateral hip and right leg disability. In August 2012, the Veteran and his wife testified before the undersigned Veterans Law Judge at a Board hearing at the RO. 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 The Veteran and his representative testified at the hearing that the Veteran was receiving ongoing private treatment for all of the disabilities on appeal. The undersigned Veterans Law Judge provided the Veteran a period of 60 days to submit the evidence but the Veteran has not done so. As there is relevant medical evidence pertaining to the disabilities on appeal, VA should make reasonable efforts to obtain the private treatment records. This should be accomplished on remand. The Veteran's representative also alluded to VA examinations that had not been associated with the claims file over which the Veteran was not waiving consideration by the Agency of Original Jurisdiction. The record shows that VA examinations in May 2012 addressing the knee and legs were added to the file. As this evidence has not been considered by the RO and AOJ jurisdiction has not been waived, the Board cannot review the evidence in the first instance. It must be reviewed on remand. It does not appear that these examinations adequately address the current severity of the bilateral knee disabilities; thus, new examinations must be scheduled on remand. Finally, with respect to the bilateral hip and right leg disabilities, the Veteran should be afforded an examination to address the etiology of these disabilities. An opinion provided pertaining to the hips only addressed direct causation to service and did not address whether the bilateral hips were caused or aggravated by the bilateral knee disabilities. Also, given that the Veteran is now presently service-connected for his back and impingement syndrome of the left femoral nerve, the opinion should also address whether the bilateral hip disabilities were caused or aggravated by these disabilities, as well. Regarding the right leg disability, there is no VA examination of record specifically addressing this claim. This should be remedied on remand, as well. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter addressing entitlement to service connection for his bilateral hip and right leg disabilities, to include as secondary to his service-connected knee, back, and left femoral nerve disabilities. 2. Ask the Veteran to identify any ongoing treatment he has been receiving for his knees, hips, and right leg disability, including the private physical therapy records he identified at his August 2012 Board hearing. If the Veteran complies with the RO's request, make arrangements to the obtain treatment records. If any efforts to obtain these records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning his claim. 2. Thereafter, schedule the Veteran for a VA orthopedic examination to address the etiology of the bilateral hip and right leg disabilities. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should perform a thorough orthopedic evaluation and determine what disabilities the Veteran presently has in his bilateral hips and right leg, if any. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current right or left hip disorder, or right leg disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current right or left hip disorder, or right leg disorder was caused by his bilateral knee disabilities, back disability, and/ or left femoral nerve impingement syndrome. (c) Whether it is at least as likely as not (50 percent or greater probability) that any current right or left hip disorder, or right leg disorder was aggravated (meaning chronically worsened) by his bilateral knee disabilities, back disability, and/ or left femoral nerve impingement syndrome. If so, please state, to the extent possible, the baseline level of severity of the bilateral hip or right leg disability before the onset of aggravation. In providing this opinion, the examiner should consider any chronic complaints regarding the hips and right leg since service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Schedule the Veteran for a VA orthopedic examination to address the present severity of his bilateral knee disabilities. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner must conduct a detailed orthopedic examination including addressing any limitation in range of motion, instability, subluxation, or ankylosis of the right and left knee joints. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected genu recurvatum with chondromalacia, i.e., whether there is weakness and/or severe painful motion in the right or left extremity. In conducting range of motion testing of the knees, the examiner should specifically note whether - upon repetitive motion of the Veteran's knees - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the knees are used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner also should discuss the impact the Veteran's bilateral knee disability has on his ability to seek and maintain gainful employment, and indicate whether such disabilities, either alone or in combination with the Veteran's remaining service-connected disabilities, render him unemployable. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the requested examination(s) has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal with consideration of all relevant evidence added to the record since the last February 2012 Supplemental Statement of the Case. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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. 2013). _________________________________________________ K. PARAKKAL 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) (2013).