Citation Nr: 1338803 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-26 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased rating for status post right anterior cruciate ligament reconstruction, patellofemoral pain syndrome with partial medial meniscus tear, currently evaluated 20 percent disabling. 2. Entitlement to an increased rating for a left lateral meniscus tear, post-operative, with patellofemoral pain syndrome, currently evaluated 10 percent disabling. 3. Entitlement to service connection for a back disability, to include as secondary to service-connected left and/or right knee disabilities. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1989 to June 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which increased the Veteran's right knee disability rating from 10 to 20 percent, effective July 28, 2004, continued his 10 percent left knee disability rating, and denied entitlement to service connection for a back disability. The Veteran testified before the Board in September 2009. Due to a subsequent change in position, the Veterans Law Judge who presided over the September 2009 hearing was unavailable to consider the Veteran's appeal. As such, the Board offered, and the Veteran took advantage of the opportunity to testify at another Board hearing in September 2012 before the undersigned. Both hearing transcripts have been associated with the Veteran's claims file. The Veteran's service connection claim for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record reflects that from July 28, 2003 to the present, the Veteran's right knee disability manifested in instability that is severe. 2. The evidence of record reflects that from July 28, 2003 to the present, the Veteran's right knee disability included arthritis manifesting in painful and limited motion. 3. The evidence of record reflects that from July 28, 2004 to the present, the Veteran's left knee disability manifested in instability that is moderate. 4. The evidence of record reflects that from July 28, 2004 to the present, the Veteran's left knee disability included arthritis manifesting in painful and limited motion. 5. The evidence does not show that the Veteran's service-connected right and left knee disabilities are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 30 percent disability rating for status post right anterior cruciate ligament reconstruction, patellofemoral pain syndrome with partial medial meniscus tear, have been met as of July 28, 2003. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. The criteria for the assignment of a separate 10 percent disability rating for right knee arthritis with painful and limited motion are met as of July 28, 2003. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2013); VAOPGCPREC 23-97; VAOPGCPREC 9-98. 3. The criteria for the assignment of a 20 percent disability rating for left lateral meniscus tear, post-operative, with patellofemoral pain syndrome have been met as of July 28, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. The criteria for the assignment of a separate 10 percent disability rating for left knee arthritis with painful and limited motion are met as of July 28, 2004. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2013); VAOPGCPREC 23-97; VAOPGCPREC 9-98. 5. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Concerning VA's duty to notify, the record reflects that VA provided the Veteran with the notice required under the VCAA specific to his increased rating claims by letters mailed in February 2005 and June 2008. Concerning VA's duty to assist, VA has obtained the Veteran's service treatment records, post-service VA and private treatment records, and his and his spouse's own lay statements and testimony. As per a November 2012 Board remand instruction, the AOJ also specifically requested that the Veteran submit release forms authorizing VA to obtain private records from the Emanuel Hospital in Portland, Oregon dating from 2004 and 2005, which the Veteran has stated pertain to treatment for his knees. See the December 3, 2012 letter from the AMC, at 2. The Veteran has not responded to this request, and VA has no authority to obtain these private records without the Veteran's written authorization and consent. There is also substantial compliance with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Introduction above, the Veteran appeared before the undersigned at a second hearing in September 2012, and VA requested authorization from the Veteran to obtain private treatment records on his behalf in December 2012, with no response. In addition, VA administered an adequate orthopedic examination that addressed the current severity of the Veteran's knee disabilities in December 2012. The examination report indicates that the December 2012 examiner completed all necessary testing, examined the Veteran, reviewed his claims file, and provided information adequate to evaluate the claim, and responsive to the Board's prior questions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Finally, with respect to the Veteran's hearing before the undersigned, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board, and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the September 2012 hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim for an increased rating for right and left knee disabilities, and sought to identify any further development that was required to help substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his increased rating claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis - Increased Ratings The Veteran's service connected right and left knee disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (knee impairment with recurrent subluxation or lateral instability). The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate for rating either disability, and the Veteran has not requested that another diagnostic code be used. Significantly, there is no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Additionally, while the Veteran has undergone prior bilateral meniscectomies, no current cartilage dislocation, or post-cartilage removal symptoms exist. See the December 2012 VA examiner's report, at 6. Thus, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 do not apply in this case. A veteran who has instability and degenerative arthritis may receive separate ratings under Diagnostic Codes 5257 and 5003 (arthritis), provided that any separate rating must be based upon additional disability. See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Analysis under Diagnostic Code 5003 specifically contemplates the criteria for limitation of motion of the knees under Diagnostic Codes 5260 and 5261 (limitation of flexion and extension respectively). Where the limitation of motion is noncompensable under 5260 and/or 5261, a rating of 10 percent is for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Significantly, a separate rating for arthritis can also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98. The medical evidence of record demonstrates that the Veteran's right and left knee disabilities manifest predominantly in symptoms of pain, instability and limitation of motion, and x-ray evidence does in fact demonstrate the presence of right and left knee arthritis. The Board will accordingly rate the Veteran's knee disabilities under Diagnostic Code 5257, with specific consideration as to whether separate ratings may be assigned for each knee based on arthritis and limitation of motion under Diagnostic Code 5003. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). VA received the Veteran's increased rating claims on July 28, 2004. At the time of these claims, the Veteran's right and left knee were both rated 10 percent disabling under Diagnostic Code 5257. In its July 2005 rating decision, which is currently on appeal, the RO increased the Veteran's right knee disability rating from 10 to 20 percent effective the date VA received the increased rating claim, July 28, 2004, and continued the left knee 10 percent rating. The key question at issue is whether a different rating or ratings should be assigned for the relevant time period under consideration-namely, July 2003 to the present. See 38 C.F.R. § 4.7 (2013) (where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned). Diagnostic Code 5257 provides a 20 percent schedular rating for recurrent subluxation or lateral instability of the knee that is "moderate" in degree, and a maximum 30 percent schedular rating for recurrent subluxation or lateral instability of the knee that is "severe" in degree. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). After review of the record, and for the reasons discussed below, the Board finds that the Veteran's right knee disability manifested in "severe" instability for the entirety of the period under review, thus warranting an increased rating to 30 percent under Diagnostic Code 5257, effective one year prior to the date of his increased rating claim, July 28, 2003. Significantly, in December 2002, the Veteran sought medical consultation from VA after his right knee gave out. At that consultation, the Veteran indicated that he was supposed to use an anterior cruciate ligament (ACL) brace, but never received it from VA. He complained of locking with the knee in flexion then "giving out." See the Veteran's December 13, 2002 Orthopedics Consult. Notably, in a January 22, 2003 report, a VA physician specified that the Veteran was without significant symptoms of instability and giveway "until this past November when he had a twisting injury . . . . He now has a sense of instability of his right knee which is helped with a hinged knee brace." The VA physician diagnosed the Veteran with a "symptomatic sense of instability/giveway." At a subsequent June 2005 VA examination, the Veteran competently described "near collapsing" of both knees, and in October 2005, he reported to a VA orthopedic surgeon that he had "continued pain and giving out" of the right knee, highlighting right knee instability as his most bothersome symptom. See the June 2005 VA examiner's report, at 1; see also and an October 25, 2005 VA orthopedic surgery consult. At a June 2008 VA examination, the Veteran reported intermittent collapsing of his knee, and a March 2010 VA examiner subsequently identified continued laxity of the anterior cruciate ligament and recommended additional nonoperative treatment. Most recently, at his December 2012 VA examination, the Veteran specifically reported his right knee gives out "at least weekly," and that he must use a cane for support. At hearings before the Board, the Veteran and his wife have competently testified as to the lengthy history of the Veteran's right knee stability problems as they existed during the period under review, and the Board finds such testimony to be highly credible. Based on the lay and medical evidence described above demonstrating a long history of frequent giving way of the right knee (at least weekly) with required use of a brace or cane for added stability, the Board finds that the Veteran's right knee instability has been "severe" in degree for the entire period under review, and that a maximum 30 percent schedular rating under Diagnostic Code 5257 is warranted, effective July 28, 2003. Moving next to the Veteran's left knee disability, the Board finds that a higher 20 percent rating is warranted under Diagnostic Code 5257 for left knee instability of "moderate" severity, effective the date VA received his increased rating claim, July 28, 2004, but no earlier. Indeed, during the one year period before VA received the Veteran's increased rating claim, the medical evidence demonstrated that the Veteran had minimal problems with left knee instability. At a December 13, 2012 VA Orthopedics Consult, a VA physician noted that the Veteran had a left ACL repair done and has "not had any problems with that." In a January 22, 2003 report, another VA physician noted that the Veteran has had "no problems with his left knee following that [ACL] procedure." Significantly, the Veteran did not report worsened problems with his left knee to his physicians or to VA until he filed his claim for increase in July 2004. As such, no rating higher than 10 percent is warranted for the one year period prior to the date of his increased rating claim. After the Veteran filed his claim, VA scheduled him for an orthopedic examination that took place in June 2005. Significantly, at that examination, the Veteran reported stiffness, crepitation, popping, locking and "near collapsing" of both knees. Although the Veteran reported that his right knee pain is "much worse" than the left, the June 2005 VA examiner did identify a trace drawer sign for the left knee. At a June 2008 VA examination, the Veteran again noted collapsing of both knees intermittently, but that symptoms of pain and swelling were greater for the right knee than the left. Significantly, at his September 2012 hearing, the Veteran and his representative again noted that the Veteran's right knee disability was worse than the left, and with respect to instability in particular, the Veteran noted that he falls four to five times a week primarily due to his right knee disability, and about every few weeks due to his left knee disability. See the September 2012 hearing transcript, at 6. In addition, at his December 2012 VA examination, the Veteran reported that although his right knee gives out at least weekly, his left knee had not given out in at least 1.5 years. See the December 2012 VA examiner's report, at 2. As above, the Board finds the Veteran's competent observations as to the severity of his left knee disability, to include his observation that his left knee gives way less frequently than his right, to be highly credible. While the Veteran's left knee disability manifested in slight instability problems during the year prior to his request for increase, the lay and medical evidence of record support a finding that the Veteran's disability worsened in severity at the time he filed his claim. The evidence demonstrates a history of intermittent left knee stability problems since July 2004 resulting in falls as frequently as every few weeks. As noted above, while his right knee gives out weekly, his left knee hasn't given out in over a year. The Board accordingly finds the Veteran's left knee disability manifests in symptoms that most closely approximate the criteria for a 20 percent rating under Diagnostic Code 5257, awarded for instability of "moderate" degree, effective July 28, 2004. The Board has also considered whether a separate disability rating may be awarded for right and left knee arthritis based on limitation of motion under Diagnostic Code 5003. Diagnostic Code 5003 directs that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Pertinent to this case, "[w]hen a knee disorder is already rated under Code 5257, the veteran must also have limitation of motion under Code 5260 or Code 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero-percent rating under either of those Codes, there is no additional disability for which a rating may be assigned." See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In the alternative, a separate rating for arthritis can also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98. Under Diagnostic Code 5260, flexion must be limited to 60 degrees for a zero percent rating, and 45 degrees for a 10 percent rating. Under Diagnostic Code 5261, extension must be limited to 5 degree for a zero percent rating, and 10 degrees for a 10 percent rating. In this case, right knee arthritis was identified on x-ray well before the period under review began. See, e.g., the Veteran's December 29, 2000 VA radiology report (noting degenerative changes of the right knee). Additionally, the Veteran has exhibited painful and limited motion at every examination of record, to include at physical assessments of his right knee dating back to January 2001. See, e.g., the Veteran's January 18, 2001 VA PT Consult (noting the presence of right knee pain and limitation of right knee flexion to 135 degrees). There is no evidence of record suggesting that the Veteran's right knee arthritis or any associated painful or limited motion resolved at any time prior to the Veteran's July 2004 claim for increase. Although the Veteran has not exhibited limitation of right knee motion of such severity as to warrant a compensable disability rating under Diagnostic Code 5260 or 5261 at any time during the entire period under review, based on the medical evidence noted immediately above, the Board finds that a separate 10 percent rating for right knee arthritis is warranted in this case, effective July 28, 2003 (one year prior to the date of his claim for increase) under the provisions of 38 C.F.R. § 4.59. Indeed, 38 C.F.R. § 4.59 indicates that it is the intention of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. With respect to the Veteran's left knee, the evidence of record fails to demonstrate the presence of arthritis and/or painful or limited motion within the year prior to the date VA received his increased rating claim. In fact, as noted above, one VA physician indicated in a January 22, 2003 note that the Veteran has had "no problems" with his left knee following a prior ACL surgery. Significantly, the Veteran did not report worsened problems with his left knee to his physicians or to VA until he filed his claim for increase in July 2004, and degenerative arthritis was not identified on x-ray until he appeared for his first VA examination with respect to this claim in June 2005. See the June 22, 2005 VA radiology report (noting the presence of joint space narrowing of the left knee). Having stated as much, although the Veteran has not exhibited limitation of motion of the left knee that would warrant even a noncompensable evaluation under Diagnostic Codes 5260 or 5261 during the period under review, the lay and medical evidence demonstrates that his left knee has nonetheless been marked by arthritis with painful and limited motion since he filed his claim. As such, a separate 10 percent rating for left knee arthritis is in fact warranted under 38 C.F.R. § 4.59, effective July 28, 2004. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 (2013). With respect to the ratings under Diagnostic Code 5257, the Court has held that where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Such is the case with Diagnostic Code 5257. However, the provisions of 38 C.F.R. § 4.40 and § 4.45 are for consideration in this case with respect to the rating under Diagnostic Code 5003. The Veteran has complained of right and left knee pain with limitation of motion and swelling. Although VA examiners in June 2005 and March 2010 do note that the Veteran exhibited decreased ranges of motion for his knees upon repetitive use, at no point do these decreased ranges correlate with range limitations warranting a disability rating greater than 10 percent under Diagnostic Code 5260 or 5261. The Board accordingly finds that any functional impairment of the right or left knee caused by the Veteran's degenerative arthritis is adequately contemplated by the currently assigned 10 percent rating, which specifically factors in the presence of painful motion. A greater disability rating over and above the 10 percent now assigned is not warranted under Diagnostic Code 5003 at any time during the appeal period. The Board notes that the Veteran has residual knee scars as a result of a prior arthroscopic surgeries on both knees. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The report of the December 2012 VA examination indicated that there were surgical scars on both knees, but no scar was painful and/or unstable, nor is the total area of all related scars greater than 39 square centimeters. Indeed, no prior medical evidence of record reflects that these scars were ever painful, tender, caused instability or interfered with range of motion, and the Veteran does not so contend. Accordingly, separate ratings for these scars are also not warranted. The Board has considered whether referral for an extraschedular rating is appropriate. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected right and left knee disabilities are inadequate. As noted above, the Veteran's right knee disability primarily involves arthritis with pain and limitation of motion, and instability of severe degree. The Veteran's left knee disability primarily involves arthritis with pain and limitation of motion, and instability of moderate degree. Such impairment is specifically contemplated by the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Codes 5257 and 5003, as well as the rating provisions outlined in 38 C.F.R. § 4.59. Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology for his service-connected knee disabilities, the second and third questions posed by Thun become moot. In short, there is nothing in the record to indicate that the Veteran's service-connected knee disabilities caused impairment over and above that which is contemplated in the increased and separate ratings that have been assigned herein. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a 30 percent disability rating for status post right anterior cruciate ligament reconstruction, patellofemoral pain syndrome with partial medial meniscus tear is granted under Diagnostic Code 5257, effective July 28, 2003. A separate 10 percent disability rating for right knee arthritis with limitation of motion is granted under Diagnostic Code 5003, effective July 28, 2003. Entitlement to a 20 percent disability rating for a left lateral meniscus tear, post-operative, with patellofemoral pain syndrome is granted under Diagnostic Code 5257, effective July 28, 2004. A separate 10 percent disability rating for left knee arthritis with limitation of motion is granted under Diagnostic Code 5003, effective July 28, 2004. REMAND The Board regrets having to again remand the remaining issue on appeal. However, remand is necessary to afford the Veteran all consideration due him under the law. In essence, the Veteran asserts that he has a current back disability that was caused or aggravated by his service-connected knee disabilities. As per the Board's November 2012 remand instructions, the Veteran appeared for a VA spine examination in December 2012. After review of the record and upon examination of the Veteran, the December 2012 VA examiner determined that it was less likely as not that the Veteran's current disability (lumbar spine degenerative disc disease with degenerative changes) was caused or aggravated by the Veteran's current knee disabilities. By way of rationale, in part, the examiner noted that if the Veteran's back condition was caused by or aggravated by his knee conditions "then one would expect a history of a relationship of flare ups between his knees and his back." The Board in no way doubts that such might be the case, but notes that the Veteran specifically reported at a prior VA examination that his back pain flare-ups "usually come[] on after a flare-up of knee pain." See the June 2005 VA examiner's report, at 2. The Veteran added that when these flare-ups occur "he experiences additional motion loss in the lumbar spine, which he treats with rest, ice, and heat, and it is better in five or six hours." Id. Although the December 2012 VA examiner stated that he reviewed the record, it is unclear by the rationale highlighted above whether he reviewed the Veteran's prior reported history of seemingly related back and knee flare-ups, or if so, why he provided no explanation as to why such reported history would not constitute a "history of a relationship of flare ups between [the Veteran's] knees and back." Because there is ambiguity as to this crucial issue, additional clarification from the December 2012 examiner is necessary before a decision on the merits can be provided for this issue. Accordingly, the case is REMANDED for the following action: 1. Obtain a clarifying medical opinion from the VA physician who administered the Veteran's December 2012 VA spine examination. The entire claims file, to include a copy of this remand, should be made available to and be reviewed by the physician, and it should be confirmed that such records were available for review. The examiner should specifically review the Veteran's report of history to the June 2005 VA examiner, indicating that his back pain flare-ups "usually come[] on after a flare-up of knee pain." The examiner should create an addendum report specifically addressing to what extent the Veteran's prior report changes his overall conclusions, if at all, as to whether the Veteran's knee disabilities have as likely as not caused or aggravated his lumbar spine disability. Any additional diagnostic testing should be scheduled if deemed necessary. If the December 2012 VA examiner is unavailable to provide an addendum report, the Veteran should be scheduled for another spine examination. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination. After review of the record, and upon examination of the Veteran, the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability is causally related to, or aggravated beyond its normal course by his service-connected right and/or left knee disabilities. A report of examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs