Citation Nr: 1338412 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-43 140 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a disability of the right lower extremity manifested by swelling, numbness, and tingling. 3. Entitlement to service connection for a disability of the left lower extremity manifested by swelling, numbness, and tingling. 4. Entitlement to a compensable rating for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1964 to July 1968 and from April 1970 to December 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2009 (which denied service connection for right knee disability and disabilities of the right and left lower extremities) and August 2010 (which granted service connection for sinusitis, rated 0 percent) by the Roanoke, Virginia RO. In August 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the matters on appeal. See 38 C.F.R. § 3.159 (2013). Regarding the claims of service connection for a right knee disability and disabilities of the both lower extremities, the Veteran and his representative have argued a secondary service connection theory of entitlement; it is alleged that such disabilities developed due to his service-connected lumbar spine disability, left knee disability, and/or service-connected right hip disability. 38 C.F.R. § 3.310(b). The Veteran has not received adequate notice of what is needed to substantiate the secondary service connection theory of entitlement (or of his/VA's respective responsibilities in evidentiary development of this theory of entitlement), and the RO has not addressed this theory of entitlement in the first instance. The October 2009 rating decision on appeal denied service connection for the claims on appeal on a direct basis only, with no consideration of secondary service connection. The July 2011 statement of the case also did not consider the secondary service connection theory of entitlement. In pertinent part, the Veteran's service connected disabilities include: status post total left knee arthroplasty with scar, right hip replacement; and degenerative disc disease of the lumbar spine. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (although there may be multiple theories of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). Medical opinions may be needed to properly address the secondary service connection theory of entitlement. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the rating for sinusitis, the Veteran testified at the August 2011 hearing that he receives treatment for such disability from Dr. Knight. A review of the claims file found that the RO has not sought the records of this private treatment. Private treatment records outstanding are pertinent evidence that must be secured (with the Veteran's assistance). Additionally, the Board notes that the Veteran's most recent VA examination for sinusitis was in July 2009, more than four years ago. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran has alleged in statements and testimony that the current rating does not reflect the current state of his sinusitis disability. The Veteran's statements advance an implicit claim that his sinusitis has worsened in the interim. Because he is competent to observe a worsening of symptoms, a contemporaneous examination to assess the current severity of his sinusitis is necessary. Finally, records of all VA treatment the Veteran may have received for the disabilities at issue are pertinent evidence, are constructively of record, and must be secured. The Veteran is advised that a governing regulation provides that where evidence requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned (See 38 C.F.R. § 3.158(a)). Accordingly, the case is REMANDED for the following action: 1. Regarding the matters of service connection for right knee disability, and disabilities of both lower extremities, the RO should provide the Veteran with 38 C.F.R. § 3.159(b) notice for a claim of secondary service connection for such disability (specifically as secondary to the Veteran's service-connected lumbar spine, left knee, and/or right hip disabilities). He should have adequate opportunity to respond. The RO should arrange for any further development suggested. 2. The RO should secure for the record copies of the complete clinical records (any not already associated with the claims file) of any VA treatment the Veteran received for the disabilities on appeal. The RO should also ask the Veteran to identify all sources of private evaluation and/or treatment he has received for his sinusitis, and to provide authorizations for VA to secure the complete updated clinical records of all such treatment and evaluations, specifically including all records of his treatment by Dr. Knight. The RO should secure for association with the claims file the complete clinical records outstanding from all sources identified. 3. The RO should then arrange for an otolaryngologic examination of the Veteran to determine the current severity of his service connected sinusitis. The examiner must review the record (including this remand) in conjunction with the examination. The examiner must be provided a copy of the applicable criteria for rating sinusitis, and the clinical findings reported must be sufficiently detailed to allow for rating under those criteria. The examiner must explain the rationale for all opinions. 4. The RO should also arrange for an orthopedic examination of the Veteran to ascertain the etiology of any right knee disability, and any disability(ies) of the lower extremities manifested by swelling, numbness, and tingling. The Veteran's record must be reviewed by the examiner in conjunction with the examination. Based on review of the record, history elicited from the Veteran, and examination of the Veteran the examiner should provide opinions that respond to the following: (a) Please identify by medical diagnosis each disability found of the right knee and right and left lower extremities. (b) As to each right knee and left and right lower extremity disability entity diagnosed please opine whether it is at least as likely as not (a 50% or greater probability) that such is related directly to the Veteran's service/disease or injury therein? (c) As to each right knee and left or right lower extremity disability entity diagnosed please opine whether or not it is at least as likely as not (a 50% or greater probability) that such was caused or aggravated (the response must address aggravation) by the Veteran's service-connected lumbar spine, left knee disability, and/or right hip disabilities? Please explain the rationale for all opinions stated. 5. After completion of the above (and any additional development deemed necessary), the RO should review the record and readjudicate the claims (specifically encompassing a secondary service connection theory of entitlement for the service connection claims). If any remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative 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). These claims 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. _________________________________________________ George R. Senyk 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).