Citation Nr: 1338225 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-23 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for neuropathy of the upper and lower extremities. 2. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability. 3. Entitlement to an increased evaluation for degenerative arthritis of the right knee with right medial collateral ligament subluxation and residual scars, currently rated 10 percent disabling. 4. Entitlement to an increased initial evaluation for right knee degenerative arthritis with limited motion, currently rated 10 percent disabling. 5. Entitlement to an increased initial evaluation for left knee degenerative arthritis with residual scar, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from January 1973 to January 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2008 rating decision of the Winston-Salem Department of Veterans Affairs (VA) Regional Office (RO). In an April 2010 VA Form 9, the Veteran requested a VA Central Office hearing. In January 2013, the Veteran indicated that he did not wish to appear at a hearing. The Board finds the Veteran's hearing request has been withdrawn. The record also reflects that evidence has been submitted directly to the Board, accompanied by a waiver of having this evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. The July 2008 rating decision also denied entitlement to service connection for a heart disability. Although the Veteran perfected an appeal of this issue, in an August 2012 rating decision, the RO granted service connection and assigned a 100 percent rating, effective August 15, 2007. As such, this issue is not before the Board. 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 Regarding the issue of service connection for neuropathy of the upper and lower extremities, service treatment records dated in November 1973 reflect that the Veteran had right thigh pain and numbness for three months. The Veteran underwent a VA examination in June 2008, at which neurological examination of the upper and lower extremities showed that motor and sensory functions were within normal limits. It must be observed, however, that VA treatment records dated in May 2009 reflect that the Veteran had shooting pain in the right knee when sitting down and also had shooting pain in the left shoulder. Moreover, treatment records from Dr. Powell dated in November 2012 reflect that the Veteran was assessed with bilateral lower extremity polyneuropathy and in June 2013 with polyradiculopathy. The Veteran should be afforded an additional VA examination, to account for these entries as to allow a fully informed evaluation of the claim for service connection for neuropathy of the upper and lower extremities. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Regarding the issue of service connection for a low back disability, the service treatment records show that the Veteran was seen for complaint and treatment of low back problems. The Veteran had a VA examination in June 2008. The examiner noted that the only record he could find of the Veteran being evaluated for low back pain was an X-ray in 2001 showing broad disc bulges. The examiner noted that he could not find anything in the record to support that the Veteran has had low back problems for 30 years. The examiner stated that he did not know the baseline manifestations of the low back prior to aggravation. The examiner opined that the low back problem is likely as not due to natural progression of disc bulging due to the Veteran's civilian job involving bending and stooping and is unrelated to his knee condition. The examiner suggested a full orthopedic evaluation by an orthopedist be conducted if this opinion was not found to be satisfactory. The Board notes that service Reports of Medical Histories dated in August 1976 and April 1977 reflect that the Veteran reported recurrent back pain. Moreover, private treatment records from Dr. Liao dated in July 1998 reflect that the Veteran complained of back pain. Additionally, the Veteran underwent an MRI in June 2000 and was diagnosed with mild lateral recess angle stenosis involving L3-L4 through L5-S1 with a small central herniated nucleus pulposus of L4-L5. The examiner apparently did not notice these records related to a back disability. Because of this inaccuracy, it will be necessary to obtain an additional examination. Additionally, the June 2008 VA examiner did not specifically address whether a low back disability was aggravated by a right knee disability. This is significant because in El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013), the United States Court of Appeals for Veterans Claims (Court) vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Thus, such an opinion is necessary before a decision on the merits may be made. As to the Veteran's right knee and left knee disabilities, recently submitted evidence suggests that the disabilities have worsened since the Veteran's most recent VA knee examination was in June 2008, see, e.g., the November 2013 submission of a housebound examination report. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his right and left knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand the right and left knee claims. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service peripheral neuropathy and low back symptomatology, as well as his post-service right and left knee symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain physically or electronically Fayetteville VA Medical Center treatment records dated from September 2010 to the present. Such records must either be printed and associated with the Veteran's paper claims folder, or uploaded into the Veteran's electronic file contained in the Virtual VA system. 3. Arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any neuropathy of the upper and lower extremities found to be present. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. All indicated studies should be performed and all findings should be reported in detail. If neuropathy of the upper and lower extremities is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the neuropathy of the upper and lower extremities is related to or had its onset in service, to include the Veteran's November 1973 complaints of right thigh pain and numbness. The examiner should also address the January 1975 Report of Medical Examination, as well as the April 1977 Report of Medical Examination for separation purposes, which reflect that the upper and lower extremities were clinically evaluated as normal. The rationale for all opinions expressed should be provided in a legible report. 4. Arrange for the Veteran to undergo an appropriate VA examination, by an orthopedist if possible, to determine the nature, extent, onset and etiology of any low back disability found to be present. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. All indicated studies should be performed and all findings should be reported in detail. If a low back disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the low back disability is related to or had its onset in service, to include the Veteran's complaints of recurrent back pain in August 1976 and April 1977. The examiner should also address the April 1977 Report of Medical Examination for separation purposes, which reflects that the spine was clinically evaluated as normal. The examiner is also requested to offer an opinion as to whether it is at least as likely as not that the Veteran's low back disability was caused OR aggravated by the Veteran's right knee disability. If aggravation is found, the examiner must note the baseline level of severity of the low back disability prior to aggravation by the service-connected right knee disability. The rationale for all opinions expressed should be provided in a legible report. 5. Afford the Veteran an appropriate VA examination to determine the current severity of his service-connected right and left knee disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. The examiner should report the following: a). Range of flexion and extension in degrees using a goniometer; and any additional functional loss in flexion or extension due to pain, including during flare-ups, weakness, atrophy, excess fatigability, painful motion, or repetitive use, i.e. the extent of the Veteran's pain-free flexion and extension. b). State whether the Veteran has recurrent subluxation or lateral instability. c). State whether the Veteran has any dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The examiner should provide a complete rationale for all opinions provided. All findings and conclusions should be set forth in a legible report. 7. Then readjudicate the appeal. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ STEVEN D. REISS 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).