Citation Nr: 1419126 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 12-29 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for a service-connected left knee condition, currently evaluated as 20 percent disabling for instability. 2. Entitlement to an increased rating for service-connected left knee arthritis, currently evaluated as 10 percent disabling. 3. Entitlement to an initial rating in excess of 10 percent for a service-connected low back condition (diagnosed as lumbar herniation). 4. Entitlement to an initial rating in excess of 10 percent for service-connected left lower extremity radiculopathy secondary to lumbar herniation. 5. Entitlement to an initial compensable rating for service-connected right lower extremity radiculopathy secondary to lumbar herniation. 6. Entitlement to service connection for a neck condition, claimed as secondary to lumbar herniation. 7. Entitlement to service connection for a right arm condition, claimed as secondary to lumbar herniation. 8. Entitlement to service connection for a right wrist condition, claimed as secondary to lumbar herniation. 9. Entitlement to service connection for a right hand condition, claimed as secondary to lumbar herniation. 10. Entitlement to service connection for a left arm condition, claimed as secondary to lumbar herniation. 11. Entitlement service connection for a left hand condition, claimed as secondary to lumbar herniation. 12. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active military service from July 1985 to August 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2010, February 2013, and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Although only the right knee issues are formally certified on appeal, the record reflects that in February 2013, the Veteran was granted service connection and assigned an initial 10 percent rating for lumbar herniation, as well as separate 10 percent and noncompensable ratings for radiculopathy of the left and right lower extremities, respectively. Less than one year later, in December 2013, he submitted a written statement in which he essentially alleged that additional compensation was warranted for his service-connected back condition and associated bilateral lower-extremity radiculopathy. The Board considers the Veteran's December 2013 statement tantamount to a timely notice of disagreement (NOD) with the initial ratings assigned for those service-connected disabilities. See 38 C.F.R. § 20.201; see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating an NOD need not contain any magic words or phrases). It follows that those initial increased-rating claims all fall within the Board's jurisdiction for the limited purpose of remanding for a Statement of the Case (SOC). See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); (holding that, where a NOD has been filed and a SOC has not been issued, appropriate Board action is to remand for issuance of a SOC). Similarly, the Board wields jurisdiction over the above-captioned service connection claims, which were denied in a January 2014 rating decision that the Veteran has since disputed in a February 2014 NOD, but which have yet to be addressed in a SOC. Id. Moreover, the Veteran has argued that the individual service-connected disabilities implicated in this appeal are productive of such severe occupational impairment that he is "almost to the point where [he] ha[s] to consider retiring." See December 2013 Statement in Support of Claims. As such, the Board finds that the issue of TDIU entitlement also falls within its appellate purview in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that every claim for a higher evaluation includes a claim for a claim for TDIU where the appellant contends that his or her service-connected disabilities prevent employment). Finally, the Board recognizes that the Veteran has also requested higher disability ratings for his right knee, which is currently evaluated as 10 percent based upon instability and as 10 percent disabling based upon arthritis with limitation of motion. While a VA compensation examination appears to have been scheduled with respect to this issue, no report is yet of record. See March 28, 2014, VA Examination Request. Moreover, this issue, in contrast with the claims listed on the title page, has not yet been adjudicated in the first instance and, thus, must be referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the AO). VA will notify the appellant if further action is required. REMAND Although the Veteran's left knee was the focus of a recent (December 2013) VA compensation examination, he has since submitted evidence of private orthopedic treatment for a bone spur involving the affected joint. See February 2014 Correspondence from J. Rao, M.D. (referencing ongoing treatment for a "knee spur caused by arthritis); see also March 2014 Veteran Statement (clarifying that bone spur involves the left knee). Such pathology, which was not addressed during the Veteran's December 2013 examination, signals a potential worsening of his left knee disability, which, as noted in the Introduction, has been assigned compensable ratings based upon both instability and arthritis with limitation of motion. Therefore, the Board has no discretion but to remand for a new VA compensation examination to assess the current degree of severity of that service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, as the most recent treatment records from the above-named private orthopedic clinician (Dr. Rao) are dated in January 2012, and she has since attested to treating the Veteran's left knee on an ongoing basis, efforts to elicit additional records from her and other pertinent private medical providers should be undertaken on remand. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Also, for the reasons noted in the Introduction, the Veteran should be furnished with SOCs that address both the issues of higher initial ratings for his service-connected lumbar herniation and associated bilateral lower extremity radiculopathy, and the issues of service connection for neck, right arm, right wrist, right hand, left arm, and left hand conditions, all claimed as secondary to lumbar herniation. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. at 240-41. Finally, insofar as the Veteran's pending individual disability claims may affect the outcome of his claim for TDIU entitlement, a final decision on this issue would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Therefore, the issue of TDIU must be deferred pending the adjudication of the Veteran's other pending claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, this case is REMANDED for the following actions: 1. Provide the Veteran and his representative with a statement of the case (SOC) addressing the issues of entitlement to higher initial ratings for service-connected lumbar herniation and associated bilateral lower extremity radiculopathy, and entitlement to service connection for neck, right arm, right wrist, right hand, left arm, and left hand conditions, all claimed as secondary to lumbar herniation. The SOC should inform the Veteran and his representative of the requirements to perfect an appeal with respect to those new issues. Thereafter, if the Veteran perfects an appeal with respect to any of those issues, ensure that all indicated development is completed before the appeal is forwarded to the Board. 2. Provide the Veteran with VCAA notice with respect to the claim for a TDIU. 3. Send a letter to the Veteran asking him to authorize the release of all treatment records from his private orthopedic physician (Dr. J. Rao) dated since January 2012, as well any other private medical providers from which he has received treatment for his service-connected left knee disability. Also ask that he submit any relevant records in his own possession. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the electronic claims file. If any records sought are not obtained, notify the Veteran and his representative, explaining the efforts undertaken to obtain such records and describing any further action that is warranted. 4. After completing the above development to the extent possible, schedule the Veteran for one or more appropriate VA compensation examinations to determine the severity of his left knee disability and its impact, alone and in tandem with his other service-connected disabilities, on his occupational and social functioning. The entire claims file (i.e., all medical records and other pertinent documentation contained in the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) efolders) should be made available to and be reviewed by the examining clinician(s), and it should be confirmed that such records were available for review. The examiner(s) should identify and describe in detail all residuals attributable to the Veteran's service-connected left knee disability, to expressly include all manifestations associated with his left knee arthritis, such as the bone spur referenced in the February 2014 correspondence from his private orthopedic treating provider, Dr. Rao, and in the Veteran's own March 2014 statement. The examiner(s) should also report the range of motion of the left knee, in degrees, and note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should likewise describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Additionally, the examiner(s) should state whether there is any evidence of recurrent subluxation or lateral instability of the left knee, and if so, to what extent. Any other appropriate tests and studies should be also conducted, as warranted. In addition to complying with the foregoing examination requests, the VA examiner(s) should expressly comment on the degree of occupational and social impairment attributable to the Veteran's left knee disability, both alone and in tandem with his other service-connected disabilities (right knee instability and arthritis; lumbar herniation; bilateral lower-extremity radiculopathy; and depressive disorder), including what types of employment and other activities would be limited because of those service-connected disabilities and whether any such limitation is likely to be permanent. In making these determinations, the examiner should take into account the Veteran's own lay assertions, including his complaint of being "almost to the point where [he] ha[s] to consider retiring" because of his service-connected occupational impairment. See December 2013 Statement in Support of Claim. All opinions expressed should be supported by complete rationales that are set forth in clear and legible report(s). 5. Then, after undertaking any additional development necessary to comply with the terms of this remand, readjudicate the issues remaining on appeal, including entitlement to TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, 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). These claims 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). _________________________________________________ M. N. HYLAND Acting 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).