Citation Nr: 1337933 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-20 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left elbow disability secondary to service-connected left knee disability. 2. Entitlement to an increased rating for compound fracture of the left femur status-post left total knee replacement, rated as 30 percent disabling from September 1, 2008, and as 40 percent disabling from January 16, 2013. 3. Entitlement to an increased rating in excess of 10 percent for right knee disability. 4. Entitlement to a higher initial rating in excess of 10 percent for left hip disability. 5. Entitlement to an increased rating in excess of 10 percent for right hip disability. 6. Entitlement to a higher initial rating in excess of 10 percent for left ankle disability. 7. Entitlement to a higher initial rating in excess of 10 percent for right ankle disability. 8. Entitlement to an increased rating in excess of 10 percent for lumbar spine disability. 9. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from June 1968 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 and June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. By the February 2008 decision, a temporary total rating was assigned for compound fracture of the left femur status-post left total knee replacement (hereinafter left knee disability) effective July 2, 2007, and a 30 percent rating was assigned effective October 1, 2007. A May 2010 rating decision extended the temporary total rating through August 2008, assigned a 40 percent disability rating, effective September 1, 2008, and assigned a 30 percent rating, effective September 10, 2009. A February 2013 rating decision decreased the rating to 30 percent, effective September 1, 2008, and a second rating decision that month granted an increased rating of 40 percent effective January 16, 2013. Therefore, the ratings currently assigned for the left knee disability during the claim period are as follows: a temporary total rating, from July 2, 2007, through August 31, 2008, a 30 percent disability rating from September 1, 2008, through January 15, 2013, and a 40 percent rating beginning January 16, 2013. The June 2010 rating decision granted service connection for a left hip disability, with a 10 percent rating assigned, service connection for a left ankle disability, with a noncompensable rating assigned, and service connection for a right ankle disability, with a noncompensable rating assigned. Each rating was assigned effective July 10, 2009. The decision also denied entitlement to an increased rating in excess of 10 percent for right knee, right hip, and lumbar spine disabilities, denied service connection for left elbow disability, and denied entitlement to TDIU. A February 2013 rating decision adjusted the effective date for assigned for the left hip, left ankle, and right ankle ratings to August 14, 2009, and found an increased rating of 10 percent warranted for the left and right ankle disabilities. In an August 2010 report of contact, it was noted that the Veteran clarified that he wanted a hearing before a Decision Review Officer (DRO) at the RO rather than a hearing before the Board. He and his spouse provided testimony during a DRO hearing at the RO in March 2011. A transcript is of record. The claim of service connection for a left elbow disability is addressed in the decision below. The remaining issues are addressed in the remand that follows the decision. FINDING OF FACT A left elbow disability is not related to service-connected left knee disability. CONCLUSION OF LAW The Veteran does not have a left elbow disability secondary to service-connected left knee disability. 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a letter issued in January 2010, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the January 2010 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. The Veteran identified a private hospital for the treatment of his left elbow disability following an injury in December 1978. However, the private hospital responded in December 2009 that there were no records available. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed. The Veteran was provided a VA examination in October 2009 to assess the etiology of a left arm disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the October 2009 VA medical opinion obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on the records reviewed. In fact, the examiner specifically discussed other possible factors to which his current disorder is attributable. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the left elbow issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Analysis Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). The Veteran contends that he incurred a left elbow disability due to or as a result of his left knee disability. In an October 2009 statement and during the DRO hearing, he explained that in February 1978, he slipped and fell on icy steps, injuring his left arm, while he was carrying items out to the car. He reported that he continued to drive himself to his destination and, after he began to feel significant left arm pain that night, he went to an emergency room at a private hospital. A hairline fracture of the elbow was found on X-ray. He contends that he was unable to catch himself due to his left knee disability, specifically the inability to extend the knee, and that, therefore, the injury incurred when he fell on his left elbow is proximately related to his left knee disability. During the DRO hearing and in an October 2009 VA examination, he reported that he used cold packs as treatment for the left elbow as needed and that he has not been able to straighten his arm fully ever since. Upon examination, the left elbow was found to lack 15 degrees of extension. The examiner diagnosed traumatic changes with limited range of motion of the elbow, consistent with a past traumatic event. However, the examiner stated that falls on ice and resulting injuries like a slight fracture of the bony structures or the elbow were a common occurrence. Therefore, given that the reported injury occurred when he slipped on ice, it was less likely as not related to the fusion of the left knee. The Board agrees with the examiner's findings. A review of the evidence reveals no competent and credible evidence of a connection between the service-connected left knee disability and the fall on ice that led to the left elbow disability. There is no evidence, nor does the Veteran contend, that he began to fall as a result of his left knee disability. While he has hypothesized that he may have been able to catch himself and stop the fall if he could have extended his left knee as he began to slip, there is no evidence to support this. The Veteran, himself, did not say for certain at the DRO hearing that he would have been able to stop the fall if he had not had a left knee disability and, in any case, the Board doubts whether such an assertion could be reliably made. It would be mere conjecture for the Veteran to say that he could have stopped his fall had his knee been normal. There is no evidence of complaints or treatment of the left elbow contemporary with the reported injury or during the more than 30 years between the injury and his claim. The Veteran submitted multiple claims and statements regarding the left knee and other disabilities since the 1978 injury without mention of a connection between the left knee injury and his left elbow disability. He submitted a letter from his mother in 2009, where she recalled that the Veteran complained of having his hands full and having a "bum leg" following the accident. However, this does not demonstrate that the left knee disability is at least as likely as not proximately related to the left elbow disability. As the examiner said, falls on ice and the incurrence of this type of disability as result, are common. Given the lack of evidence in support of the claim, the evidence is against a finding that the Veteran's current left elbow disability is related to the left knee disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a left elbow disability is denied. REMAND Regarding the claim for higher ratings for the knees, hips, ankles, and lumbar spine, the Veteran underwent a VA examination most recently in January 2013. In evaluating each disability, the VA examiner noted functional loss or impairment in various forms, including less movement than normal, weakened movement, excess fatigability, incoordination, deformity, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, and pain on movement, but did not note the point, if any, at which such factors caused functional impairment. The examiner also noted the Veteran's complaints of flare-ups of symptoms involving the back and knees but did not discuss the resulting functional impairment, if any. The Court has required that VA obtain examinations in which the examiner determines whether a joint disability is manifested by such symptoms as weakened movement, excess fatigability, incoordination, pain, or flare-ups. These determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any such factors. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (Vet. App. 2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013). Given these rating requirements, the Board finds that a new VA examination is necessary to determine the current severity of the disabilities at issue, to include the functional impact of such factors as less movement than normal, weakened movement, excess fatigability, incoordination, deformity, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, and pain on movement. Regarding the issue of TDIU, the Board notes that the January 2013 VA examiner did not provide an opinion as to whether the service-connected disabilities prevent the Veteran from obtaining and maintaining gainful employment for which he would otherwise be qualified given his experience and education. Moreover, to the extent that he stated whether a disability impacted the Veteran's ability to work, an explanation was not provided. The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2013). In addition, the Veteran requested in April 2013 that the combined impact of his disabilities be considered in evaluating the claim for TDIU. The Board notes that while an opinion regarding the combined impact of service-connected disabilities on employability is not required, such an opinion has been requested here and is considered to be appropriate given the number of service-connected disabilities. See Geib v. Shinseki, No.2012-7164, 2013 WL 5788671, at 3-4 (Fed. Cir. Oct. 29, 2013) (In a TDIU determination, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities."); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Therefore, upon examination, an opinion regarding whether the combination of service-connected disabilities renders the Veteran unable to obtain and maintain gainful employment is required. The Board requests that records of ongoing VA treatment be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records since January 2013 and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above-requested development is completed, provide the Veteran with a VA examination to determine the current severity of his left knee, right knee, left hip, right hip, left ankle, right ankle, and lumbar spine disabilities and whether the combination of those and his other service-connected disabilities renders him unable to obtain and maintain gainful employment. The examiner should review the claims folder, a copy of this remand, and the evidence in Virtual VA. All indicated testing should be conducted. The examiner should report the range of motion of the knees, hips, and ankles as well as the lumbar spine, in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with any joint disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner must inquire as to periods of flare-up and note the frequency and duration of any such flare-ups for each joint affected by flare-ups. The examiner must equate all functional losses due to factors such as pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits should be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion is not shown on the examination. (This requires a certain degree of conjecture on the examiner's part, but is required for rating these disabilities.) The examiner should report all neurologic impairment resulting from the service-connected back disability and indicate which nerve is involved. The examiner should also opine as to the severity of that impairment, in terms of mild, moderate, or severe. If there is neurologic impairment of the lower extremities that is not related to the service-connected disability, the examiner should so report. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation for which his education and experience would otherwise qualify him. The examiner should set forth all examination findings, along with a complete rationale for any opinions and conclusions expressed. (The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.) 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and explanations requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. After they are afforded an opportunity to respond, the case should 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2002 & Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs