Citation Nr: 1331372 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 08-13 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to an increased disability evaluation for the residuals of a total left knee replacement, to include an evaluation in excess of 30 percent as of March 1, 2007, an evaluation in excess of 30 percent as of May 1, 2011, an evaluation in excess of 60 percent as of May 2, 2011 and an evaluation in excess of 60 percent as of October 1, 2012. 3. Entitlement to a disability evaluation in excess of 20 percent for lumbar spine fusion and laminectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 2002 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. These decisions denied the Veteran's claim of entitlement to service connection for a right knee disability and granted service connection for a lumbar spine disability, rated as 20 percent disabling as of September 15, 2006, and granted service connection for the residuals of a left total knee replacement, rated as 100 percent disabling as of September 15, 2006; 30 percent disabling as of March 1, 2007; 100 percent disabling as of March 17, 2010; 30 percent disabling as of May 1, 2011; 60 percent disabling as of May 2, 2011; 100 percent disabling as of August 17, 2011; and 60 percent disabling since October 1, 2012. The Veteran testified at a hearing before the undersigned in May 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record. 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 Service Connection for a Right Knee Disability Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to service connection for a right knee disability. Specifically, the Veteran has alleged that he underwent an operation during military service where part of his right knee anterior cruciate ligament (ACL) was removed as part of surgery on his left knee. He denied any actual injury to the knee during military service during his May 2013 hearing and felt that his right knee was normal after separation. However, he has now asserted that his right knee disability has arisen as a result of overcompensating for his service-connected left knee total replacement. A review of service treatment records confirms that the Veteran had right knee complaints and surgery during service. According to an October 2003 record, the Veteran had been suffering from right knee pain for the past one week. Another October 2003 record reflects that the Veteran injured his knee playing football. Range of motion was felt to be relatively good at this time and the Veteran was diagnosed with a soft tissue injury. The Veteran was instructed to not run for three weeks. An April 2004 record notes that the Veteran injured himself playing flag football approximately 6 months earlier. Range of motion testing of the right knee was noted to be from 0 degrees to 130 degrees. In June 2004, the Veteran underwent a bilateral ACL reconstruction, while another record notes that the Veteran was post-op revision of a left knee ACL. Therefore, there is certainly evidence of in-service symptomatology involving the right knee. However, it is not entirely clear based on the post-service evidence of record whether the Veteran has in fact been diagnosed with a current disability of the right knee. The Veteran was afforded a general VA examination in February 2007. It was noted that while there was evidence of pain at times, there were no actual residuals of the right knee. During his May 2013 hearing, the Veteran continued to discuss symptomatology involving the right knee. An October 2011 VA treatment record also reflects that the Veteran was continuing to suffer from right knee pain following revision surgery. In light of the evidence of in-service symptomatology, as well as the Veteran's reports of right knee pain, his right knee should be examined to determine what, if any, disability is associated with the right knee. If a diagnosable disability is found, the examiner should opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service. If it is not found to be due to military service, the examiner should opine as to whether it is at least as likely as not that this disability was caused by, or permanently aggravated by, a service-connected left knee disability. Increased Evaluation for a Lumbar Spine Disability and Left Knee Disability The Veteran also contends that he is entitled to a disability evaluation in excess of 20 percent for his service-connected lumbar spine disability and a higher rating for his left knee disability. However, further evidentiary development is necessary on this claim before appellate review may proceed as well. The record reflects that the Veteran was last afforded a VA examination for this condition in February 2007. Since that time, the Veteran has continued to seek treatment for his symptomatology. He also testified in May 2013 that his back pain was now "tremendously" worse than his knee pain and that VA had attempted two nerve block injections. In light of the significant length of time that has elapsed since the Veteran's last examination, and his continued treatment and description of intense symptomatology, he should be afforded the opportunity to appear for a more recent VA examination before appellate review proceeds. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board recognizes that the Veteran was scheduled for a new examination in July 2008 and that he failed to report to this examination. During his hearing, the Veteran testified that he was unaware of the examination having been scheduled. The Board will afford the Veteran another opportunity to appear for an examination. Accordingly, the case is REMANDED for the following action: 1. VA Medical Center records prepared since October 2012 - the date of the most recent record associated with the Veteran's Virtual VA electronic paperless file - should be obtained and associated with the claims file, either physically or electronically. 2. The Veteran should be scheduled for a VA examination before an appropriate examiner regarding his claimed right knee disability. The Veteran's claims file must be provided to the examiner for review and the examination report should reflect review of this item. All indicted tests and studies should be performed. (a) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that a right knee disability is etiologically related to an incident of the Veteran's military service. The Veteran contends that a part of his right knee anterior cruciate ligament (ACL) was removed as part of surgery conducted on his service-connected left knee disability. The Veteran's in-service symptomatology involving the right knee should be considered and discussed when formulating this opinion. (b) If it is determined that it is not at least as likely as not that a right knee disorder is related to the Veteran's service, then the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that a right knee disability is caused by the Veteran's service-connected left knee disability, or, whether it is at least as likely as not (i.e., 50 percent or greater probability) that a right knee disability has been permanently aggravated as a result of this service-connected left knee disability. The Veteran contends that his right knee disability has developed as a result of overcompensating for his service-connected left knee total replacement. The examiner should note that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. A complete rationale must be provided for all opinions offered and the examiner should take into consideration the Veteran's lay statements regarding his history and symptomatology. 3. The Veteran should also be scheduled for a VA examination before an appropriate examiner to determine the current level of severity of his service-connected left knee disability. The Veteran's claims file must be provided to the examiner for review and the examination report should reflect review of this item. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's left knee disability, including limitation of motion. The examiner should note the degree of severity of any instability or subluxation of the knee, determine if the knee locks and if so the frequency of the locking, and note the presence of any effusion into the joints. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. Describe any resultant increased functional loss in range of motion on repetitive use or during flare-ups in terms of degrees. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 4. The Veteran should also be scheduled for a VA examination before an appropriate examiner to determine the current level of severity of his service-connected lumbar spine disability. The Veteran's claims file must be provided to the examiner for review and the examination report should reflect review of this item. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. Describe any resultant increased functional loss in range of motion on repetitive use or during flare-ups in terms of degrees. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. Finally, the examiner should opine as to whether the Veteran suffers from objective manifestations of neurological symptomatology associated with his service-connected lumbar spine disability. This includes, but is not limited to, radiculopathy of the extremities or impairment of the bladder/urinary system. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 5. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH 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).