Citation Nr: 1605216 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 08-36 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected arthrosis of the right knee. 2. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected arthrosis of the right knee and a service-connected right femur disorder. 3. Entitlement to an evaluation in excess of 10 percent for arthrosis of the right knee. 4. Entitlement to an initial evaluation in excess of 30 percent for right knee instability, prior to May 16, 2013, and a compensable evaluation thereafter. 5. Entitlement to an effective date earlier than July 7, 2011, for the award of service connection for right knee instability. 6. Entitlement to an initial evaluation in excess of 10 percent for a right femur (hip) disorder associated with arthrosis of the right knee. 7. Entitlement to an effective date earlier than March 30, 2010, for the award of service connection for a right femur (hip) disorder associated with arthrosis of the right knee. 8. Entitlement to an evaluation in excess of 30 percent for residuals of a left hand flexor pollicus brevis laceration with scar and arthritis. 9. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right hand, status post thumb injury. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran originally appealed the issue of entitlement to service connection for a right hip disorder, to include as secondary to service-connected arthrosis of the right knee. A July 2013 rating decision granted service connection for a right femur (hip) disorder, effective March 30, 2010. That represents a total grant of the benefits sought on appeal for the issue of entitlement to service connection for a right hip disorder, and therefore, that issue is no longer before the Board. REMAND Review of the electronic claims file reveals that VA has a further duty to assist the Veteran in developing evidence pertinent to his claims herein. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A. Manlincon Remand In a July 2013 rating decision, the RO granted entitlement to service connection for right knee instability and assigned an initial 30 percent disability rating, effective July 7, 2011. The RO also granted entitlement to service connection for a right femur disorder and assigned an initial 10 percent disability rating, effective March 30, 2010. Subsequently, the Veteran filed a timely notice of disagreement in September 2013, contesting the initial disability ratings assigned and requesting an earlier effective date for the award of service connection for both claims. Similarly, in an October 2014 rating decision, the RO denied entitlement to service connection for a left hip disorder. The RO also granted entitlement to service connection for degenerative joint disease of the right hand, status post thumb injury, and assigned an initial 10 percent disability rating, effective July 20, 2013. In response, the Veteran filed a timely notice of disagreement contesting the RO's decision denying entitlement to service connection for a left hip disorder and challenging the initial disability rating assigned to his degenerative joint disease of the right hand, status post thumb injury. As the RO has not yet provided the Veteran with a statement of the case addressing these claims, the Board must remand the issues of (1) entitlement to service connection for a left hip disorder, to include as secondary to service-connected arthrosis of the right knee and a service-connected right femur (hip) disorder; (2) entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right hand, status post thumb injury; (3) entitlement to an initial evaluation in excess of 10 percent for a right femur (hip) disorder associated with arthrosis of the right knee; (4) entitlement to an effective date earlier than March 30, 2010, for the award of service connection for a right femur (hip) disorder associated with arthrosis of the right knee; and (5) entitlement to an effective date earlier than July 7, 2011, for the award of service connection for right knee instability. Thereafter, the RO must send the Veteran a statement of the case and allow the Veteran the opportunity to perfect an appeal of each issue. Manlincon v. West, 12 Vet. App. 238 (1999). B. Hearing Requested The Veteran is seeking entitlement to an evaluation in excess of 30 percent for residuals of a left hand flexor pollicus brevis laceration with scar and arthritis. On his July 2013 substantive appeal to the Board (VA Form 9), the Veteran requested a videoconference hearing before the Board to provide testimony regarding the severity of his left hand disorder. This hearing has not been scheduled and a withdrawal of this request is not found in the record. Accordingly, the RO must schedule the Veteran for a videoconference hearing before the Board, according to the date of his original request for such a hearing. C. New VA Examinations Low Back Strain In March 2013, the Board remanded the Veteran's claim seeking entitlement to service connection for a back disorder, to include as secondary to service-connected arthrosis of the right knee. In its remand directives, the Board instructed the RO to schedule the Veteran for an appropriate examination to determine nature and etiology of the Veteran's claimed back disorder. Specifically, the Board requested that the examiner provide a medical opinion addressing whether the Veteran has a low back disorder related to his military service, to include the documented fall that he sustained in service. The examiner was also asked to address "whether any diagnosed back . . . disability is due to or aggravated by any service-connected disorder, to include arthrosis of the right knee." In May 2013, the Veteran was afforded a VA thoracolumbar spine examination. The VA examiner diagnosed the Veteran as having a low back strain since 2005 and opined that the claimed condition was "less likely than not" incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that Veteran's service treatment records showed that he had low back pain on June 12, 1977 but that this pain was not documented when he left the military. The examiner also indicated that there was no evidence that the Veteran sought medical attention for his back until 2005 when he went to the emergency room and then was evaluated by a chiropractor. The examiner did not provide any additional rationale. Moreover, the examiner did not address whether the Veteran's low back strain was caused or aggravated by his other service-connected disorders, including his arthrosis of the right knee. Under these circumstances, the Board finds that its March 2013 remand directives have not been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand confers on a claimant, as a matter of law, the right to compliance with the remand order). Therefore, the RO must schedule the Veteran for another thoracolumbar spine examination to ascertain whether the Veteran's current low back strain is related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Right Knee Arthrosis and Instability The Veteran is seeking entitlement to an evaluation in excess of 10 percent for arthrosis of the right knee and entitlement to an initial evaluation in excess of 30 percent for right knee instability, prior to May 16, 2013, and a compensable evaluation thereafter. Arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); see also VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (indicating that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). Therefore, as an initial matter, the Board finds that the Veteran's right knee arthrosis and instability claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that 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). In May 2013, the Veteran underwent a VA knee examination to determine the current severity of his service-connected arthrosis of the right knee. Based on the examination findings, the RO issued a July 2013 rating decision that granted entitlement to service connection for right knee instability and assigned an initial 30 percent disability rating, effective July 7, 2011, followed by a noncompensable disability rating beginning May 16, 2013. In a contemporaneous supplemental statement of the case, the RO continued the 10 percent disability rating previously assigned to the Veteran's service-connected arthrosis of the right knee. Subsequently, in August 2015, the Veteran submitted another claim seeking an increased disability rating for his right knee instability. Given that approximately three years have passed since the May 2013 VA knee examination, and because the Veteran asserts a worsening of his right knee symptoms, the Board finds that a new examination is needed to fully and fairly evaluate his right knee disorder. See 38 C.F.R. § 3.159(c)(4)(i) (2015); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is remanded for the following actions: 1. Regarding the Veteran's claim seeking entitlement to an evaluation in excess of 30 percent for residuals of a left hand flexor pollicus brevis laceration with scar and arthritis, the RO must schedule the Veteran for a videoconference hearing before the Board, according to the date of his original request for such a hearing. 2. The Veteran must be afforded an appropriate examination to determine whether his low back strain is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The electronic claims file and all pertinent records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether the Veteran's low back strain is related to his active duty service, to include the documented fall he sustained in service and the complaints of low back pain on June 12, 1977. The examiner must also state whether any diagnosed back and right hip disability is due to or aggravated by any service-connected disorder, to include arthrosis of the right knee. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must also be afforded an appropriate examination to determine the current severity of his service-connected arthrosis and instability of the right knee. The electronic claims file and all pertinent records must be made available to the examiner, and the examiner must specify in the examination report that the records have been reviewed. All relevant findings regarding the Veteran's right knee must be reported. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected arthrosis of the right knee. The examiner must record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. The examiner must also indicate whether the Veteran currently experiences any lateral instability or recurrent subluxation; and if so, whether the lateral instability or recurrent subluxation is considered slight, moderate, or severe. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected arthrosis of the right knee. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's electronic claims file. 5. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the Veteran's claims on appeal. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 7. Thereafter, the RO must issue a statement of the case and notification of the Veteran's appellate rights on the issues of: (1) entitlement to service connection for a left hip disorder, to include as secondary to service-connected arthrosis of the right knee and a service-connected right femur (hip) disorder; (2) entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right hand, status post thumb injury; (3) entitlement to an initial evaluation in excess of 10 percent for a right femur (hip) disorder associated with arthrosis of the right knee; (4) entitlement to an effective date earlier than March 30, 2010, for the award of service connection for a right femur (hip) disorder associated with arthrosis of the right knee; and (5) entitlement to an effective date earlier than July 7, 2011, for the award of service connection for right knee instability. See 38 C.F.R. §§ 19.29, 19.30 (2015). The Veteran is reminded that to vest jurisdiction over these issues with the Board, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2015). If the Veteran perfects an appeal of any of these issues, they must be certified to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).