Citation Nr: 1333166 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-26 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of status post left knee arthroscopy. 2. Entitlement to a disability rating in excess of 40 percent for lumbar spine degenerative disc disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to November 1975, and from June 1976 to July 27, 1980, with terminations of honorable discharge. He also had active service from July 28, 1980 to April 7, 1981 with termination under other than honorable conditions. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought. 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 is seeking a disability rating in excess of 10 percent for residuals of status post left knee arthroscopy, and an disability rating in excess of 40 percent for lumbar spine degenerative disc disease. A remand is necessary. The Veteran was last examined for these disabilities more than four years ago, in August 2009. Review of the report of that examination of both disabilities reflects that the examiner reported that medical records were reviewed, but that the claim file was not provided to the examiner. Thus any medical records that would only be found in the claim file were apparently not available for review at the August 2009 VA examination. With respect to the left knee claim, at the time of the August 2009 VA examination, the examiner noted that the Veteran had recently undergone arthroscopic resection of a tear of the posterior horn of the medial meniscus on August 20, 2009, and was just recovering. The diagnosis was status post left knee partial meniscectomy with residual pain. As the knee was just recovering, findings from the August 2009 VA examination likely do not reflect any later stabilized condition of the left knee disability. The most recent treatment records prior to the August 2009 VA examination consist of private treatment records dated in March 2008. The claim file does not include records of the reported surgery of August 20, 2009 or any associated treatment. Therefore, a new examination of the Veteran's left knee disability is necessary, after obtaining any outstanding treatment records. With respect to the service-connected lumbar spine claim, VA treatment records dated in January 2010 reflect that the low back disability had worsened since the last VA examination in August 2009. A January 2010 VA treatment record shows that the Veteran reported an onset of acute, heavy pain one and one-half weeks before. Review of the procedural history shows that the RO previously identified and evaluated the low back condition as herniated lumbar disc with radiculitis. Radiculitis is defined as inflammation of the root of a spinal nerve, especially of that portion of the root which lies between the spinal cord and the intervertebral canal. See Dorland's Illustrated Medical Dictionary 1595 (31st ed. 2007). Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). The report of the August 2009 VA spine examination shows that, in reporting the history of his low back condition, the Veteran's said he had occasional numbness of the left leg that was progressively worse since onset. The examiner noted that the Veteran was service-connected for lower back condition with intervertebral disc syndrome. The medical history section of the examination report noted on review of systems, symptoms of numbness and radiating shooting pain to the left leg, and genitourinary conditions of urinary urgency and erectile dysfunction. After examination, including MRI examination, the impressions included (1) overall mild multilevel multifactorial spondylosis, with the most significant involvement at the level of L3/L4 where there is minimal neural foraminal and mild to moderate central canal stenosis and mild cauda equine compression; (2) nine millimeter sclerotic focus in the body of L4 of unclear etiology. The diagnosis was degenerative disease of the lumbar spine (severe) with intervertebral disc syndrome. The examiner did not address the likelihood of whether the Veteran's competently reported left lower extremity neurological symptoms, urinary urgency, or erectile dysfunction, were associated with the service-connected lumbar spine disability. The reported left lower extremity neurological symptomatology is potentially associated with the lumbar spine disability. An examination is necessary to adequately address the question of the presence and severity of any objective neurologic abnormalities associated with the Veteran's service-connected lumbar spine disability, to specifically include any present neurological manifestations of the left lower extremity, urinary urgency, or erectile dysfunction, as indicated by the Veteran's competent report of symptoms during the August 2009 VA examination. For both the left knee and low back disabilities, it appears that the Veteran has received ongoing VA and private treatment. The most recent treatment records on file, however, are VA treatment records dated in January 2010. Any outstanding records of treatment must be obtained prior to examination of the left knee and low back, including any records associated with the August 2009 left knee surgery. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all outstanding records of VA or private medical treatment pertinent to the Veteran's service-connected lumbar spine disability, including any potentially associated neurologic impairment to include lower extremity radiculopathy, or genitourinary conditions; and his service-connected left knee disability, to specifically include records associated with left knee surgery in August 2009. 2. Then, schedule the Veteran for appropriate VA examinations of the Veteran's service-connected (i) residuals of status post left knee arthroscopy, and (ii) lumbar spine degenerative disc disease. The examinations must: (i) Residuals of Status Post Left Knee Arthroscopy Examine to determine the nature, extent, frequency and severity of any orthopedic impairment related to the Veteran's left knee disability. All indicated tests, including range of motion studies, must be performed. The examiner is to express the findings of range of motion studies in degrees and on both flexion and extension, and fully describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion due to pain of the affected joint, i.e., the extent of the Veteran's pain-free motion on flexion and extension, including during periods of flare-up. The examiner must discuss whether the Veteran has any left knee instability or subluxation. The examiner must opine as to the impact of the Veteran's left knee disability on his ability to work. (ii) Lumbar Spine Degenerative Disc Disease Examine to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or part of the Veteran's lumbar spine disability, to include any radicular neuropathy involving the lower extremities or other neurological abnormalities, associated with the lumbar spine disability. The claims folder must be made available to and be reviewed by the examiner and all necessary tests must be conducted. The examiner is to identify all lumbar spine orthopedic and neurologic pathology found to be present. The examination must include the results of all indicated orthopedic and neurologic tests and studies necessary. Orthopedic testing must include range of motion studies expressed in degrees and in relation to normal range of motion, and must describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner is to express any functional loss in terms of additional degrees of limited motion of the Veteran's lumbar spine/low back, i.e., the extent of the Veteran's pain-free motion. In addition, state whether the lumbar spine disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. If so, describe the frequency and duration of those episodes. The examiner must discuss the nature and severity of any lower extremity radiculopathy or neuropathy found to be present, and opine as to whether any neurologic abnormality found (to include of the lower extremities or any genitourinary or other abnormality) is associated with the Veteran's lumbar spine disability. The examiner must also state whether the Veteran has any other objective neurologic abnormalities associated with his lumbar spine disability, such as any bowel or genitourinary pathology. After all necessary tests are conducted, the examiner must opine as to the impact of the Veteran's overall lumbar spine disability on his ability to work. A complete rationale for any opinion expressed and conclusion reached must be provided. 4. Then readjudicate the appeal. If either of the benefits sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to respond. 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). _________________________________________________ RONALD W. SCHOLZ 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).