Citation Nr: 1333930 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-19 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 3. Entitlement to higher ratings for degenerative joint disease of the right knee, currently rated 10 percent for limitation of flexion and 0 percent for limitation of extension. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1967 to May 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). As explained in further detail, below, the evidence includes an April 2008 record from Dr. S. Mehta wherein he opines that the Veteran is unemployable due to his "lower extremities and his back." In light of that statement (and, as explained in more detail, below), the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for disorders of the low back and left knee are REMANDED to the RO. VA will notify the Veteran when action on his part is required. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected right knee disability has been manifested by arthritis with painful motion; instability, limitation of flexion to 30 degrees, and/or limitation of extension to 10 degrees have not been shown. CONCLUSION OF LAW Throughout the rating period on appeal, ratings in excess of 10 percent for limitation of flexion and 0 percent for limitation of extension for degenerative joint disease of the right knee are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, such as the limitation of flexion claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). An April 2007 letter, prior to the November 2007 rating decision on appeal, explained the evidence necessary to substantiate the Veteran's claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of rating and effective date criteria. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. Here, the Veteran is also challenging the initial evaluation assigned following the grant of service connection for limitation of extension of the right knee. In Dingess, it was held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, VA's duty to notify as to the claim for a higher initial rating has been satisfied. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA joints examinations in July 2007 and April 2009, which will be discussed in greater detail below. The Board finds these examinations to be adequate for rating purposes, as the examiner considered the reported history of the Veteran and conducted thorough examinations, noting all findings necessary for consideration of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, the STRs show that the Veteran was treated for right patella dislocation in February 1967. He was granted service connection for right knee strain, degenerative joint diseaes, and patellar dislocations in an October 2004 rating decision. A 10 percent disability rating was assigned under Code 5010 (for arthritis due to trauma (substantiated by X-ray findings), which mandates that the disability be rated as degenerative arthritis). In April 2007, the Veteran submitted a claim for increased rating. On July 2007 VA joints examination, the Veteran reported constant right knee pain and intermittent, frequent use of a cane to aid in walking. His standing was limited to 20 minutes and walking was limited to half a mile. The Veteran reported right knee giving way, instability, pain, stiffness, weakness and single incidents of patellar dislocation and effusion. He also reported severe flareups of joint disease which can result in him having to stop the activity and lie down. He reported no episodes of locking. The Veteran also reported right knee inflammation manifested by warmth, redness, swelling and tenderness. On physical examination, the Veteran walked with a limp but there was no evidence of abnormal weight bearing. On range of motion testing, right knee extension was 90 to 5 degrees on active motion against gravity and 90 to 0 degrees on passive motion (with pain beginning at 5 degrees). Right knee flexion was 90 to 120 derees on active motion against gravity and passive motion (with pain starting at 120 degrees). Pain was worse with repeat movements, range of motion was the same. There was no joint ankylosis. The examiner noted right knee bony joint enlargement, crepitus, edema, tenderness and painful movement. The examiner specifically not that there was no right knee instability and that the ligaments were intact. X-ray examination showed moderate degenerative joint disease of both knees. The diagnosis was right knee strain, degenerative joint disease and status post patellar dislocation. VA treatment records in August 2007 show complaints of continued bilateral knee pain which has been unresponsive to conservative treatment. Right knee range of motion was limited to 90 degrees with no laxity, edema, or deformity. The knee was stable with mild discomfort on range of motion. These records also show the Veteran had received corticosteroid (kenalog with lidocaine) injections since December 2004 and Hyalgan injections starting in October 2007. A November 2007 rating decision granted service connection for limitation of extension, right knee strain, degenerative joint disease and patellar dislocations, rated zero percent from April 2007 (the date of claim for increase) under Codes 5010-5261 (for arthritis with limitation of extension). This rating decision also continued the 10 percent rating for limitation of flexion, right knee strain, degenerative joint disease and patellar dislocations (recharacterized under Codes 5010-5260 for arthritis with limitation of flexion). An April 2008 statement from S. Mehta, M.D., a private physician, notes that the Veteran was seen for a second opinion. Dr. Mehta noted that there was crepitus throughout the right knee range of motion, positive patella grind test, mild effusion and some thickening of the synovial membrane. Range of motion was from 5 to 95 degrees flexion. Dr. Mehta noted that August 2007 VA magnetic resonance imaging of the right knee revealed no evidence of meniscus or ACL tear. VA treatment records include an October 2008 bilateral knee follow-up examination which showed no warmth or effusion, +PF (patellofemoral) crepitation, stable right knee to v/v (varus/valgus) stress and range of motion of 5 to 110 degrees. Subsequent VA treatment records (in 2008 and 2009) show he continued to complain of bilateral knee pain and received corticosteroid and Hyalgan injections. In May 2009, the Veteran began to wear a right knee brace. On April 2009 VA examination, the Veteran complained of right knee giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, burning, repeated effusions, warmth, swelling, and tenderness. His standing was limited to 30 minutes, walking was limited to 100 yards and he complained of difficulty going up steps. Physical examination showed that the Veteran had a mild limp in his gait. The examiner noted right knee bony joint enlargement, crepitus and subpatellar tenderness. Right knee range of motion was 0 to 120 degrees of flexion, extension was limited by 5 degrees, and there was objective evidence of pain with active and following repetitive motion (but no additional limitations of range of motion after three repetitions). There was no ankylosis. The diagnosis was bilateral severe degenerative joint disease of the knees. Legal Criteria and Analysis In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased or initial rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for the knee. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code (Code), any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Indeed consideration and application of 38 C.F.R. § 4.59 is not just limited to cases where there is arthritis, so also in non-arthritis context. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, Code 5260 (limitation of flexion of the leg) and under Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September, 2004). A close review of the record reveals no distinct period during which the criteria for the next higher rating for limitation of flexion or limitation of extension of the right knee were met. See Fenderson and Hart, supra. Throughout the appeal period (since the Veteran's April 2007 claim for increase), his right knee disability has been assigned a rating of 10 percent based on a formulation of 10 percent for arthritis with limitation of flexion under Codes 5010-5260 and a zero percent rating for arthritis with limitation of extension under Codes 5010-5261. The evidence of record for the period of the appeal shows flexion limited, at most, to 90 degrees and extension limited, at most, to 5 degrees. Consequently, a higher rating is not warranted under either Code 5260 or Code 5261. The evidence does not support an increased rating at any time during the appeal based on functional loss due to DeLuca considerations. While the Veteran reported pain and has received corticosteroid and Hyalgan injections, there was no additional limitation of motion following repetitive use during the July 2007 or April 2009 examinations. In addition, the August 2007 examiner noted only mild discomfort on range of motion and no evidence of abnormal weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board has also considered the possibility of separate ratings for limitation of motion and for subluxation/instability which may be awarded where there is both (X-ray evidenced) arthritis and instability of a knee. See VAOPGCPREC 23-97 (1997). However, despite the Veteran's complaints of giving way and instability, VA treatment records and examination reports repeatedly note that the right knee is stable (no right instability - ligaments intact on July 2007 VA examination and stable right knee to varus/valgus stress on October 2008 VA treatment). Subluxation or lateral instability has not been found on any examination or noted in any treatment records. All testing for ligamentous laxity has been negative. For these reasons, the Veteran's accounts of instability are outweighed by the significant probative value of objective stability testing provided numerous times throughout the appeal. Consequently, a separate compensable rating for instability would be inappropriate. In considering the potential applicability of other Diagnostic Codes, the Board finds that Code 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula) and 5263 (genu recurvatum) 5258 (dislocation of semilunar cartilage), and 5259 (removal of semilunar cartilage, symptomatic) are not applicable to the facts of this case, as the medical and lay evidence does not show the Veteran has the type of impairment contemplated by these other Diagnostic Codes. Notably, both July 2007 and April 2009 VA examinations note that there was no ankylosis. The Board notes the lay statements submitted by the Veteran in support of his claim. Those statements detail the types of problems (additional limitations due to pain, weakened movement, excessive fatigability with use) that result from his service-connected right knee disability. The level of functional impairment described by the Veteran is encompassed by the criteria for the schedular ratings assigned; thus the lay statements do not support the assignment of higher schedular ratings. Therefore, based on the foregoing, the Board finds the preponderance of the evidence is against the claim for ratings in excess of 10 percent for limitation of flexion and in excess of 0 percent for limitation of extension for degenerative joint disease of the right knee, there is no reasonable doubt to resolve in his favor, and his claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Extraschedular considerations Lastly, in exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, comparing the Veteran's disability level due to his right knee to the applicable rating criteria, the Board finds that the degree of disability shown is entirely contemplated by the rating schedule. This disability does not present an exceptional disability picture: the right knee symptomatology, including pain and limitation of motion, is addressed in the rating schedule. The schedular rating assigned is, therefore, adequate; referral of the claim for extraschedular consideration is not required. TDIU is for consideration in all appeals involving increased ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The evidence includes the April 2008 record from Dr. Mehta wherein he opines that the Veteran is unemployable due to his "lower extremities and his back." Accordingly, the matter of entitlement to TDIU is discussed in the Remand section, below. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Ratings in excess of 10 percent for limitation of flexion and 0 percent for limitation of extension for degenerative joint disease of the right knee are denied. REMAND The Veteran claims that his low back and left knee disabilities are the result of his altered gait due to his service-connected right knee disability. See April 2007 claim for increase, March 2008 VA treatment report, April 2008 letter from Dr. Mehta, and April 2009 VA joints examination report. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The April 2009 VA joints examination report notes that the Veteran's gait was affected and he had a mild limp. The diagnosis was left knee osteoarthritis and lumbar spine degenerative joint disease. The examiner opined that it is less likely as not (less than 50/50 probability) that the Veteran's lumbar spine and left knee disabilities were caused by or a result of his right knee OA (osteoarthritis) based on a review of the medical literature and the risk factors for OA, including age, genetic factors, weight etc., with advanced age being one of the strongest risk factors. However, the examiner did not offer an opinion regarding whether either claimed disability was aggravated by the service-connected right knee disability. Once VA provides an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board therefore finds the April 2009 VA examination and medical opinion to be inadequate as to whether the left knee and lumbar spine disabilities are aggravated by the Veteran's service-connected right knee disability. Hence, further development for additional medical advisory opinions is necessary. If such opinion indicates that it is at least as likely as not that either the left knee and/or low back was aggravated by the service-connected right knee, the examiner should address whether the Veteran is unemployable due to disabilities related to service, in light of Dr. Mehta's 2008 opinion that the Veteran is unemployable due to his "lower extremities and his back." The Board notes that, although raised by the record, the RO has not adjudicated the matter of the entitlement to a TDIU, to include on an extra-schedular basis. Therefore, after giving the Veteran an opportunity to file a formal claim for a TDIU (and accomplishing other actions, noted below), to avoid any prejudice to the Veteran, the RO should fully adjudicate these matters, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In rendering each determination, the RO should specifically consider and discuss whether the procedures for referral for consideration of a TDIU on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), are invoked. The record suggests that the Veteran receives ongoing treatment for his claimed disabilities. The most recent VA treatment records associated with the record (in the claims file or in Virtual VA) are dated in May 2009. Updated records of any VA and/or private treatment the Veteran may have received are likely to contain pertinent information (and VA records are constructively of record) and must be secured. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. The RO should furnish to the Veteran and his representative a letter that specifically explains what is needed to support the claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. The RO should ask the Veteran to identify all providers of treatment he has received for his claimed disabilities since May 2009, and to provide authorizations for VA to obtain records of any such private treatment. The RO should secure for the record copies of complete clinical records of the identified treatment (i.e., any not already associated with the claims folder). The Veteran should be notified if any records he identified are not received pursuant to the RO's request. The RO should specifically secure complete records of all VA treatment he has received from May 2009 to the present. 4. The RO should arrange for the Veteran to be examined by an orthopedist to secure adequate medical nexus opinions in the matters remaining. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of pertinent medical history and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's lumbar spine disability was aggravated (i.e., chronically worsened) by his service-connected right knee disability?; and (b) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's lumbar spine disability was aggravated (i.e., chronically worsened) by his service-connected right knee disability?; and (c) If it is determined that a lumbar spine and/or left knee disability was aggravated by the Veteran's service-connected right knee, the examiner should specify, to the extent possible, the degree of disability (in terms of pathology and/or impairment) that is due to such aggravation; and (d) If it is determined that a lumbar spine and/or left knee disability was aggravated by the Veteran's service-connected right knee, the examiner should provide an opinion as to whether the Veteran is unemployable as a result of disabilities due to service, to include his service-connected right knee disability and any disability found to be aggravated by the right knee. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The explanation should include comment on the Veteran's allegation that his right knee disability caused an altered gait, which in turn caused him to acquire lumbar spine and left knee pathology. 5. The RO should then review the record and readjudicate the remaining claims, to include consideration of TDIU, including on an extraschedular basis. If any remains denied, the RO should issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). _________________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs