Citation Nr: 1331830 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-12 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral knee condition, to include as secondary to service-connected chronic paraspinous muscle strain with low back pain. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to January 1991 and from January 1997 to April 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran failed to report to a February 2011 hearing before a Decision Review Officer. He was subsequently scheduled for a November 2011 Travel Board hearing at the Albuquerque, New Mexico, RO, to which he also failed to report. Of record is a request from the Veteran asking that he be scheduled for another Travel Board hearing during the week of July 16-20, 2012. The VA complied with that request, and the claims file contains letters sent to the Veteran's address of record in June and July 2012, noting the date, place, and time of the hearing. The Veteran failed to report on that date. VA did not receive a request for a postponement or rescheduling of the hearing and thus the Board treats the present case as though the Veteran's request for a hearing was withdrawn. 38 C.F.R. § 20.704(d) (2013). 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 contends that he is entitled to service connection for a bilateral knee condition and is additionally entitled to a TDIU as a result of his service-connected disabilities. He reports that he injured his right knee while undergoing a functional capacity assessment related to his service-connected chronic paraspinous muscle strain with low back pain, and as a result, he then began favoring and subsequently injured his left knee due to the additional use placed upon it. The Veteran additionally contends that his service-connected chronic paraspinous muscle strain with low back pain and associated service-connected radiculopathy of the left and right lower extremities render him unemployable and that he is therefore entitled to a TDIU. The evidence of record shows that the Veteran was last employed as a supervisor at the United States Postal Service (USPS) in February 2006. In a March 2010 letter accompanying his VA Form 9, the Veteran stated that in February 2006, he sustained an injury to his back during the course of his employment, necessitating that he cease his duties, and that he has been receiving workman's compensation for his injury since April 2006. Though claims file includes a November 2008 response from the USPS stating only that the Veteran is "still on rolls," the evidence of record, to include Social Security Administration (SSA) records, private medical treatment records, and credible lay statements all show that the Veteran has not engaged in substantial gainful employment since February 2006. Service connection is in effect for chronic paraspinous muscle strain with low back pain, evaluated as 40 percent disabling, and for radiculopathy of the right and left lower extremity associated with the Veteran's chronic paraspinous muscle strain with low back pain, each evaluated as 10 percent disabling. His combined rating for his service-connected disabilities is 50 percent. See 38 C.F.R. §§ 4.25, 4.26 (2013). The Board finds that additional development efforts are necessary prior to adjudicating the issues on appeal. In this case, it appears that the Veteran has a current bilateral knee disability that may be related to a service-connected disability. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient and competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury, or disease in service, and indicates that the current disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2013); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, as the evidence of record tends to show there may be an association between the Veteran's current bilateral knee disability and his service-connected chronic paraspinous muscle strain with low back pain, a clarifying opinion on the issue of nexus is needed for proper adjudication of the claim. The Veteran also seeks a TDIU. Entitlement requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). The governing regulations provide that, to qualify for a TDIU, if there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. Id. In this case, the Veteran is service-connected for a back disability with separate ratings for associated neurological manifestations; therefore, they are of a common etiology. His current combined rating is 50 percent, less than the schedular requirements for TDIU. However, if the development directed herein results in a rating for a knee disability associated with the back disability, that rating will also be combined, and may reach the requisite 60 percent threshold. As such, the issue of TDIU is inextricably intertwined and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion from a physician to determine the nature and etiology of the Veteran's bilateral knee disability. The claims file, including a copy of this Remand, must be provided to the examiner for review. While review of the entire file is required, attention is invited to the following particular records, of which the medical records are located on compact disc provided by the Social Security Administration: (a) The Veteran's statements describing the onset and symptoms of his bilateral knee condition as included in his September 2008 and November 2008 VA Forms 21-4142, Statement in Support of Claim, and in his March 2010 letter accompanying his VA Form 9; (b) Private medical treatment records dated October 2008 to April 2009 from Dr. M of ABQ Health Partners, LLC describing the Veteran's bilateral knee injuries and medical treatment; (c) Private medical treatment records dated October 2007 to September 2008, describing the Veteran's treatment by Dr. V, including a diagnosis of knee pain and horizontal tear of the posterior horn of the medial meniscus of the right knee; (d) A July 2008 MRI Report of the Veteran's knees assessing a focal diagonal tear in the posterior body of the medial meniscus and small bone cyst in the left knee, and mild degenerative change of the knee joint space in the right knee; (e) Private medical treatment records from the Lovelace Hospital and Health system including an October 2007 progress note, a July 2008 examination record, and September 2008 MRI reports describing impressions of a horizontal tear in the posterior horn of the medial meniscus of the right knee and a focal diagonal tear in the posterior body of the medial meniscus of the left knee; (f) A September 2007 medical record from the Spine and Orthopedic & Rehab Center describing the Veteran's report of injuring his knee in the course of a functional capacity evaluation for his spine; and (g) May 2008, and August 2008, April 2009 progress notes from the ABQ Health Partners treating the Veteran's bilateral knee pain. Following review of the claims file, the VA physician should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's bilateral knee disability is 1) caused, or 2) aggravated by his service-connected chronic paraspinous muscle strain with low back pain and/or his service-connected radiculopathy of the left and right lower extremities. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Then, readjudicate the Veteran's claim for entitlement to service connection for a bilateral knee condition, to include as secondary to his service-connected chronic paraspinous muscle strain with low back pain. 3. Once the above development has been completed, obtain a VA medical opinion from a physician to determine whether the Veteran is unemployable solely due to his service-connected disabilities of chronic paraspinous muscle strain with low back pain, and radiculopathy of the left and right lower extremities. If the Veteran's claim of entitlement to service connection for bilateral knee condition is granted upon readjudication, the VA physician should additionally consider that disability in rendering his or her opinion regarding the Veteran's unemployability due to his service-connected disabilities. The claims file, including a copy of this Remand, must be provided to the examiner for review. While review of the entire file is required, attention is invited to the following particular records, with the identified private medical records located on compact disc provided by the SSA: (a) The Veteran's January 2000 and June 2006 VA examinations of his spine; (b) A November 2011 letter from the U.S. Department of Labor stating that the Veteran's thoracic spine strain, lumbar spine sprain, lumbar disc displacement, and prolonged depressive reaction was sustained as a result of a work injury incurred in February 2006; (c) The Veteran's March 2010 letter accompanying his VA Form 9 stating that he has been out of work since injuring his back in February 2006 and that the SSA found him to be 100% disabled. (d) May 2007 Independent Medical Examination performed by Dr. G of Albuquerque Independent Medical Examiners describing the Veteran's back injury, medical treatment, and evaluation finding that the Veteran has a herniated lumbar disc and a "[h]istory of previous lumbar sprain, possibly preexisting disc herniation," and that "he is not capable of returning to his usual job and, he is not able to do limited duty," though "he could work pending the results of surgery" depending on the results; (e) Private medical records from the Spine Orthopedic & Rehab Center dated May 2006 to February 2009 describing the Veteran's back disability, need for surgery, and inability to work; (f) March 2008 and February 2009 medical impressions of MRIs of the Veteran's lumbar spine; (g) A December 2008 Physical Residual Function Capacity Questionnaire assessing the Veteran's limitations on employment; (h) Private medical records from the Presbyterian Medical Group dated March 2005 to August 2005 describing the Veteran's back and leg pain and MRI results; (i) Private medical records from New Mexico Spine dated April 2005 describing the Veteran's back and leg pain and medical treatment; (j) Private medical records from Dr. M of ABQ Health Partners dated July 2008 to April 2009 describing the Veteran's back disability, leg pain, and treatment; and (k) Private medical treatment records from the Presbyterian Occupational Medicinal Clinic dated May 2007 to July 2007 detailing the Veteran's injuries and medical treatment and directing the Veteran to remain off of work. After reviewing the file, the examiner should render an opinion as to whether the Veteran is precluded by reason of his service-connected disabilities alone from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms and manifestations related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities should not be considered in this determination. 38 C.F.R. § 4.14 (2013). The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After ensuring that the requested actions are completed, readjudicate the claims on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant 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 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). _________________________________________________ BETHANY L. BUCK 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).