Citation Nr: 1615695 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 10-16 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine. 2. Entitlement to a rating in excess of 10 percent for left ankle injury with prior evidence of degenerative changes. 3. Entitlement to a rating in excess of 10 percent for residuals status post arthroscopy for torn patella ligament left knee. 4. Entitlement to a compensable rating for patellofemoral syndrome of the right knee prior to May 28, 2010 and since November 1, 2010. 5. Entitlement to a compensable rating for left knee scars. ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1996 to January 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the appeal was subsequently transferred to the Roanoke, Virginia RO. In his April 2010 substantive appeal, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities on appeal. In April 2011, the RO denied entitlement to a TDIU. The Veteran did not appeal that decision. Such adjudication reflects the permissive bifurcation of the increased rating claim from the TDIU claim. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU). Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review, and it is not before the Board. In September 2010, the RO assigned a temporary 100 percent disability rating from May 28, 2010, to September 1, 2010, based on surgical treatment necessitating convalescence for the Veteran's service-connected right knee patellofemoral syndrome. In April 2011, the RO extended the temporary 100 percent disability rating to November 1, 2010. As these increases did not satisfy the appeal in full, the issue of entitlement to an increased rating for the service-connected right knee disability remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, the evidence indicates that there may be outstanding records of private treatment for the service-connected orthopedic conditions on appeal. Specifically, a September 2010 record from C. Vitug, PA-C, who had been treating the Veteran's service-connected knee disabilities, indicates that a follow-up appointment was to be scheduled in six weeks. Additionally, VA treatment records show that the Veteran also received private treatment from several other providers, to include a spine specialist (Dr. Arora), a primary care physician (Dr. Fox), a sports medicine specialist, a physical therapist, and a chiropractor. As these records are potentially relevant to the issues on appeal, remand is necessary. Second, the evidence suggests that the Veteran's service-connected knee, back, and left ankle disabilities may have worsened since his last VA examination in January 2011. As to the knees, the January 2011 VA examination report shows that x-rays were within normal limits and that there was no crepitus; however, a January 17, 2012, VA treatment note shows bilateral degenerative joint disease of the knees with mild crepitus. As to the back, the January 2011 VA examination report shows that there was no evidence of intervertebral disc syndrome, incapacitating episodes, or neurological deficits. The VA examiner concluded that the Veteran's back disability was asymptomatic. However, a March 1, 2012, VA treatment record is suggestive of bladder incontinence: noting "active bilateral [lower extremity] pain and sensory changes" and that the Veteran "feels like he is wetting on himself down [his left] leg and will take pants down and check on occasion." VA treatment notes directing the Veteran not to return to work for several days due to back pain in December 2013 and January 2014 are suggestive of incapacitating episodes requiring physician-prescribed bedrest. Additionally, on June 26, 2014, a VA physician diagnosed active radiculopathy. And in March 2014 and April 2015, the Veteran reported that his back disability had worsened in recent months. As to left ankle, the January 2011 VA examination report shows that the Veteran denied any overall functional impairment; however, a January 2012 VA orthopedic consult record notes that the Veteran's chronic ankle problems are aggravated with his current job. As the evidence suggests a material change in the disabilities, reexamination is warranted under 38 C.F.R. § 3.327 (2015). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal, to specifically include any outstanding records from C. Vitug, PA-C, who treated the Veteran's service-connected knee disabilities, as well as any outside spine specialist, including Dr. Arora; primary care physician(s), including Dr. Fox; physical therapist, sports medicine specialist, and/or chiropractor. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from May 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by an appropriate medical professional to identify the current severity of the Veteran's service-connected knee, back, and left ankle disabilities. All indicated tests and studies should be performed, and all findings reported in detail. As to the service-connected back disability, the examiner is to address whether the Veteran suffers any neurological abnormalities. The examiner is to address the identified records listed above, which suggest bladder incontinence and incapacitating episodes, as well as the June 26, 2014, diagnosis of radiculopathy. 3. Then, after taking any additional development deemed warranted, readjudicate the issues on appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran 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 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). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).