Citation Nr: 1542101	
Decision Date: 09/29/15    Archive Date: 10/05/15

DOCKET NO.  13-09 586A 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been received to reopen the claim for service connection for left knee injury.

2.  Entitlement to service connection for left knee disability.

3.  Entitlement to service connection for right knee disability.

4.  Entitlement to service connection for back disability.

5.  Entitlement to service connection for left inguinal hernia.

6.  Entitlement to a rating in excess of 10 percent for right herniorrhaphy scar.

7.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).



REPRESENTATION

Appellant represented by:	Michael V. Quatrini, Attorney at Law


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to September 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  Jurisdiction was subsequently transferred to the RO in Pittsburgh, Pennsylvania.  

The Board notes that the Veteran submitted a notice of disagreement with respect to the issues of entitlement service connection for bilateral hearing loss, service
connection for tinnitus, service connection for posttraumatic stress disorder (PTSD), service connection for adjustment disorder with depressed mood, service connection for atrophy of both testicles and sterility associated with herniorrhaphy scar, service connection for treatment purposes only under 38 U.S.C. chapter 17 for PTSD and adjustment disorder with depressed mood and entitlement to special monthly compensation based on loss of use denied in an August 2012 rating decision.  The Board's review of the claims file reveals that the AOJ is still taking action on these issues.  As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order.


This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issues of entitlement to service connection for left knee disability, on the merits, back disability, and left inguinal hernia, as well as the issues of entitlement to a rating in excess of 10 percent for right herniorrhaphy and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The RO denied service connection for left knee injury in an unappealed July 1969 rating decision.

2.  The evidence received since the July 1969 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for left knee disability.

3.  A right knee disability did not manifest in service and is not attributable to service; arthritis of the right knee did not manifest to a compensable degree within one year of discharge from service


CONCLUSIONS OF LAW

1. The July 1969 rating decision denying service connection for left knee injury is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).
 
2. As new and material evidence has been received, the claim for service connection for left knee disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).

3.  A right knee disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(b), 103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act

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 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Given the favorable disposition of the application to reopen the claim for service connection for left knee injury the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished.

With respect to the remaining claim herein decided, 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, 18 Vet. App. 112, 120-21 (2004); 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 June 2009 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for service connection.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the June 2009 letter.

The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA and private treatment records.

The Veteran acknowledges has not been afforded a VA examination with respect to his claim for service connection for right knee disability on appeal.  

For the reasons explained in greater detail herein below, no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with active service. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id.

The Board finds that referral of the claim for an examination to obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis for this claim. 

There is no competent evidence of an event, injury, or disease occurred in service or that otherwise indicates possible relationships to service. Since "no reasonable possibility exists that such assistance would aid in substantiating the claims," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2).
 
For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims herein decided on appeal are thus ready to be considered on the merits.

II.  Application to Reopen

The RO denied service connection for left knee injury in a July 1969 rating decision.  At that time, the evidence of record consisted of the Veteran's service treatment records and a May 1969 VA examination report.

In denying the claim, the RO noted that the Veteran's enlistment examination showed a history of left knee injury, with a November pre-service report documenting treatment for fracture of the semilunar cartilage.  While he was seen for complaint of left knee pain in service, an x-ray was negative.  Post-service examination of the left knee revealed no abnormalities with x-ray within normal limits.

The Veteran was notified of the July 1969 rating decision and of his appellate rights in a letter that same month letter. The Veteran did not appeal the decision or submit additional pertinent evidence within one year of the decision.  That decision thus became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

The Veteran requested that VA reopen the previously denied claim of service connection in April 2009. In order to reopen a claim which has been denied by a final decision, there must be new and material evidence. 38 U.S.C.A. § 5108.

New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996).

The added evidence includes various private treatment records, VA treatment records the report of an August 2014 VA examination report, and various written statements from the Veteran.

VA treatment records and the August 2014 VA examination report reflect a diagnosis of degenerative joint disease of the knee.  A February 2012 VA MRI report revealed chronic diffuse tear in the body of the medial meniscus likely
degenerative, small to moderate left knee joint effusion, mild to moderate tricompartmental degenerative changes in the left knee, and a small Baker's cyst.  Private records reflect that he underwent left knee arthroplasty in October 2014.  These treatment records reflect the Veteran's report of initial injury in service with continued, progressively worsening symptoms since service.

The additional evidence received since the July 1969 rating decision relates to a diagnosis of chronic left knee disability, an unestablished fact necessary to substantiate the claim. The Board finds that the evidence is new and material.  It is not duplicative or cumulative of evidence previously of record, as the previous evidence did not demonstrate chronic left knee disability.

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection a left knee injury are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, for reasons discussed below in the remand, the Board finds that further development is necessary before the merits of the claim can be addressed. 

III.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  38 U.S.C.A. § 1101. With respect to the current appeal, that list includes arthritis. See 38 C.F.R. § 3.309(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307.

The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat.

The Veteran's service treatment records reflect no complaint, finding, or diagnosis with respect to the right knee.  While he was seen for left knee strain in service, no complaints regarding the right knee were noted.  On discharge examination in September 1968, the lower extremities were noted to be normal, though he did endorse trick or locked knee on report of medical history at discharge.

Following service, in April 1969, the Veteran filed claim for service connection for left knee disability, but not for the right knee.  He was seen for VA examination in June 1969, during which only the left knee was discussed.

A December 2001 report from the Michalski Orthopedic Center reflects that the Veteran presented with complaint of right knee pain after stepping into a hole while putting in a gas line at his mother's house.  He reported a history of left knee injury 30 years ago, but no reported history regarding the right knee was noted.  He was assessed with a right medial meniscus tear.  A report from the East Ohio Regional Hospital indicates that the Veteran underwent partial medial meniscectomy surgery of right knee in January 2002.  Post-surgical follow-up reflects diagnosis of right knee degenerative joint disease.

VA treatment records document assessment of bilateral knee osteoarthritis in 2011.

In various written statements, the Veteran reported that he injured his right knee during his duties as a crash rescue specialist at Fort Rucker.  In his claim, he reported that he injured his knee when he fell from a fire truck-though he did not specify the knee.  In his notice of disagreement, the Veteran reported that he injured the right knee service while moving and pulling out fire hoses or in overcompensating with his right knee due to left knee problems in service.  He conflictingly noted that though his right knee injury did not occur while in service, his right knee injury was caused as a result of an injury he received while serving in the Army.

In this case, while the record reflects current diagnosis of right knee disability, the Board finds that service connection for the disability is not warranted.

The record does not document any right knee complaints until 2001, and right knee degenerative changes were not identified until 2002. The Board notes that the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, right knee disability, to include arthritis, was not noted during service.  In addition, characteristic manifestations sufficient to identify the disease entity were not noted during service or within one year of separation. 38 C.F.R. § 3.303.  Rather, whenever examined the right lower extremity was normal and he denied pertinent pathology related to the right knee, notwithstanding the endorsement of trick or locked knee at discharge for an unspecified knee.

Moreover, none of the VA or private treatment records report indicates a relationship between the Veteran's current right knee disability and service.  Rather, post-service records document right knee injury in 2001 with no indication of prior injury or complaints.

The Board has also considered Veteran's report that he has experienced right knee symptoms related to injury incurred in service.  The Board acknowledges Veteran is competent to report symptoms present and past.  See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this case, the Board finds that the Veteran's assertions of right knee-related symptoms in and since service are not credible.

Right knee complaints or a right knee disability were not "noted" in the Veteran's service treatment records.  Nothing suggested that there were sufficient manifestations sufficient to identify a chronic disease entity.  Furthermore, the separation examination revealed normal findings.  He did not endorse right knee disability when filing a claim for compensation shortly after discharge or on examination in 1969.

Moreover, when the Veteran presented for treatment in 2001 related to the right knee, he related only a history of recent injury and did not indicate prior injury related to service, though he did endorse a history related to the left knee dating back 30 years.
 
With respect to the diagnosed arthritis, there is no indication that the disability first manifest in service or within one year of any service.  Arthritis was not "noted" during service and the normal service records establish that he did not have characteristic manifestations of the disease process during service or within one year. Rather, the record reflects that degenerative arthritis was manifest in 2002.  Thus, we conclude that arthritis was first manifest years post service and that there is no nexus to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

To the extent that the Veteran advances his own interpretation of his medical condition indicating that his right knee disability is related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In any event, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the evidence of record indicating no relationship between his current disability and service.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a right knee disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

The application to reopen the claim for service connection for left knee injury is granted.

Entitlement to service connection for a right knee disability is denied.


REMAND

Upon review of the claims file, the Board believes that additional development on the remaining claims is warranted.

VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. 

In addition, 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).

In regard to the claim for service connection for back disability, the Veteran alleges that this disability was incurred as a result of initial in-service injury and had worsened since the initial injury.  The Board notes that the Veteran's service treatment records reflect that he was seen for complaints of back pain in September 1966 and was treated with a bed board.  While subluxation in the vertebrae was initially noted, an x-ray was negative with no subluxation.  He was assessed with back strain.

A May 1969 VA examination after the Veteran's discharge from service includes a medical history noting back trouble in service.  The Veteran reported that he was told that he had subluxation of the vertebrae.  His back was x-rayed and he was advised use of a bed board.  The Veteran denied back trouble since using the bed board.  On x-ray, there was a questionable defect in the pars interarticularis at L5.  Additional studies were recommended.   A physical examination was normal.  The examiner diagnosed congenital anomaly of the lumbar spine.

Other post-service treatment records reflect that the Veteran underwent a L3-5 laminectomy and L3-4 microdiscectomy in February 2008 for treatment of lumbar stenosis and disc herniation.  

On VA examination in August 2009, the Veteran indicated that he injured his back in 1966 when pulling a fire hose, and was diagnosed with back strain.  He was on light duty for a few weeks and returned to active duty with a deployment to Vietnam in 1968 with no further trauma, injury or strain.  He reported that he worked as a safety manager and also ran his own personal farm with horses and cows.  He indicated that he had pain throughout the years and was administered anti-inflammatory shots.  

After physical examination and x-ray, the examiner diagnosed lumbar stenosis and disc herniation L3-L4, L4-L5 with lumbar laminectomy and right L3-L4 microdiscectomy with residual surgical scar, degenerative disc disease, and dextro-scoliosis-per x-ray.

On VA TDIU examination in September 2009, the examiner noted the findings of the August 2009 examiner, and stated that it would not seem that a back strain would develop into the pathology revealed on MRI requiring surgery for herniation 42 years later.  

The Board finds that the medical evidence of record is insufficient to decide the claim. While the September 2009 VA examiner appears to provide a negative nexus opinion, there was no rationale for the opinion expressed and the opinion was not expressed in terms of whether it is at least as likely as not that the disability is related to service.  

With respect to the claim for service connection for left inguinal hernia, the Veteran has expressed that this disability was incurred in service as a result of the same processes for which he developed the service-connected right inguinal hernia, or, in the alternative, that the disability is secondary to service-connected right herniorrhaphy.  In a July 2009 written statement, the Veteran reported that an additional hernia developed at the weak points in the abdomen caused by the previous surgery.

The Veteran's service treatment records confirm that he was diagnosed with right inguinal hernia and underwent herniorrhaphy during service, but there is no indication of diagnosis or treatment of a left hernia.  

However, a July 1978 certificate of attending physician notes that the Veteran had suffered from bilateral hernia with bilateral groin pain.  In an October 1978 statement, the Veteran reported that he suffered from bilateral hernia and crushed both vas deferens while serving in Vietnam.  

In addition, while the September 2011 examiner addressed only direct service connection without noting the 1978 assessments of bilateral hernia, and without addressing the claim for secondary service connection.

Given the foregoing, the Board finds that additional examination medical opinions-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claims for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In regard to the reopened claim for service connection for left knee disability, the RO denied reopening of the claim of service connection for left knee disability and did not consider the underlying merits of the claim. As the Board has granted the application to reopen, it cannot consider the merits of the claim unless it finds that the Veteran would not be prejudiced thereby.  Bernard v. Brown, 4 Vet. App. 384, 393 (1993); Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (citing 38 U.S.C.A. § 7104(a) ); see also id. at 403 (when the Board reopens a claim after the RO has denied reopening, the Board generally should remand the claim to the RO to consider the evidence and render a new decision).  The record reflects that not only did the RO deny reopening the claim, it also failed to readjudicate the claim after affording the Veteran a VA examination in August 2014 to determine the etiology of the claimed condition.

In addition, the VA examination report reflects the examiner's opinion that the Veteran's left knee disability preexisted service and was not aggravated therein.  However, the report also indicates that the examiner was instructed that the disability preexisted service.

The Veteran's service treatment records include a March 1966 letter from a physician noting that the Veteran was treated for a "fracture of the semilunar cartilage" in November 1964, prior to service.  He was immobilized in a cast and subsequently treated with injection and ultrasound therapy.  On report of medical history at enlistment in December 1965, the Veteran endorsed trick or locked knee.  In the physician's summary, it was noted that the Veteran had "no trouble" since the prior injury.  On December 1965 entrance examination, the lower extremities were found normal and there is no indication of left knee disability.

Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition.  Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000).  The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).

In this case, the evidence establishes that a left knee disability was not noted at entry.  The enlistment examination was normal, and it was indicated that the prior injury had resolved without complaint at the time of entrance. Therefore, the presumption of soundness is applicable.

However, the VA examiner merely stated that the left knee disability clearly and unmistakably preexisted service without making such a determination.

For the foregoing reasons, the Board finds that this opinion is likewise inadequate and that the Veteran should be afforded another examination to determine the nature and etiology of the claimed disability.

With respect to the claim for increased rating for right herniorrhaphy scar, the record reflects that the Veteran underwent VA examination in September 2009.  The Board observes that the examiner also noted that the Veteran had a scar from a left herniorrhaphy done in March 2009 and indicated that the Veteran reported that the scar had been stable since surgery.  The examiner then went on to discuss findings related to the scar; however, it is unclear from the report as to whether the examiner was discussing the service-connected right herniorrhaphy scar or scarring related to left hernia surgical repair, for which the Veteran is not service-connected, or if findings related to the left herniorrhaphy are indistinguishable from the right.

Given the foregoing, the Board believes that the examination is inadequate and that the Veteran should be afforded an examination to determine the current disability level stemming from the service-connected right herniorrhaphy scar.

Finally, as regards the claim for a TDIU, as any decision with respect to the claims for increased rating and service connection may affect the Veteran's claim for a TDIU, the claim for a TDIU is inextricably intertwined with the claims being remanded.  See Parker v. Brown, 7 Vet. App. 116   (1994); 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 are adjudicated).  It follows that any Board action on the claims for a TDIU would be premature. Hence, a remand of this matter is warranted as well.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection for left knee, left inguinal hernia, and back disabilities, the claim for increased rating for scarring, and the claim for a TDIU. If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain a copy of those records. If the AOJ is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence.

2.  The AOJ should also obtain any outstanding VA treatment records.

3.  After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the claimed left knee disability, back disability and left hernia disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 

Left Knee- The examiner should identify all left knee disability(ies).  The examiner should provide an opinion as to whether the Veteran's left knee disability clearly and unmistakably preexisted service.  If the examiner determines that a left knee disability preexisted service, he or she should state whether there was an increase in the disability during service. 

If the evidence reflects such an increase, the examiner should specifically find whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology.

For any left knee disability determined to be not preexisting, he or she should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left knee disability was incurred in service or is otherwise medically related to service, to include the assessment of left knee strain therein.

In providing the requested opinions, the examiner is asked to specifically consider and address the Veteran's service treatment records documenting fracture of the semilunar cartilage prior to service, the service entrance and discharge examinations, and the report of treatment of strain therein, as well as all post service medical evidence.

Back- The examiner should identify all back disability(ies). Then, he or she should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current back disability was incurred in service or is otherwise medically related to service, to include the assessment of strain therein.

Left Hernia- The examiner should identify all left hernia disability(ies). Then, he or she should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left hernia disability 1) was incurred in service or is otherwise medically related to service; or 2) is proximately due to, caused by, or aggravated (permanently increased in severity beyond the natural progress of the condition) by his service-connected disabilities, to specifically include right hernia scar.

The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

4.  The Veteran then should be scheduled for a VA examination to evaluate the current severity the service-connected right herniorrhaphy scar.  Any indicated studies and tests deemed necessary by the examiner should be performed.  The examiner is advised that any findings related to left herniorrhaphy scarring should be distinguished from the right herniorrhaphy scar.  If the scarring and/or symptoms are unable to be distinguished, such should be indicated by the examiner.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

5. The AOJ should undertake any additional development deemed warranted.
 
 6. Then, AOJ should readjudicate the remaining claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or 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 2014).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs