Citation Nr: 1647622	
Decision Date: 12/21/16    Archive Date: 12/30/16

DOCKET NO.  09-46 741A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1. Entitlement to an initial compensable rating for hyperparathyroidism.

2. Entitlement to an initial rating higher than 20 percent for gout.

3. Entitlement to an initial rating higher than 10 percent prior to Aril 9, 2013, and higher than 20 percent as of that date for a right knee disability.

4. Entitlement to an initial compensable rating prior to March 22, 2012, in excess of 10 percent prior to May 25, 2012, and in excess of 40 percent as of that date, for lumbar spine disability, to include a separate compensable rating for left lower extremity radiculopathy.

5. Entitlement to an initial rating compensable rating prior to May 25, 2012, and in excess of 10 percent as of that date for right lower extremity radiculopathy associated with lumbar spine disability.

6. Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from October 1983 to July 1992.

This matter comes before the Board of Veterans' Appeals (Board) from April 2008, November 2008, November 2009, December 2009, March 2010, and November 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that respectively granted service connection for a right knee disability, awarding a 10 percent rating and a noncompensable rating for hyperparathyroidism, each effective October 25, 2001; denied service connection for a low back disability; denied entitlement to a TDIU; and granted service connection for gout, awarding a 20 percent rating effective February 20, 2009.

The Veteran provided testimony before the undersigned at Board hearing in august 2011. In February 2012, the Board remanded the claim for additional development. In November 2012, the RO awarded service connection for the Veteran's claimed back disability. He was assigned an initial noncompensable rating and a 10 percent rating beginning March 22, 2012. In a January 2013 communication received by VA, the Veteran indicated his disagreement with the ratings assigned and effective dates of his service-connected back disability. The Board construed the statement as a valid notice of disagreement. 

In October 2014, the Board most recently remanded the matters of increased ratings for gout, right knee disability and hyperparathyroidism to the RO for development, while reaching a decision in other matters that are no longer on appeal. It also remanded the issue of the evaluation of the low back disability to the RO for issuance of a statement of the case (SOC) consistent with Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC was issued and the Veteran perfected an appeal with the issue of the evaluation of the low back, which includes the evaluation of the separate rating for right lower extremity radiculopathy and a separate rating for left lower extremity radiculopathy. During the course of the appeal, the rating for the low back was increased as reflected on the title page. Additionally, a separate 10 percent rating was assigned for the right lower extremity effective from May 25, 2012. Also, the evaluation for the right knee was increased to 20 percent effective from April 9, 2013. Although these awards were partial grants of the benefits sought, the Board notes that the Veteran has indicated continued disagreement with the ratings assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claims are still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of evaluations for the lumbar spine, right knee and right lower extremity radiculopathy, as well as a separate rating for left lower extremity radiculopathy and 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. Throughout the appeal period, hyperparathyroidism has been manifested by only subjective symptoms and reported taking of vitamins; there is no need for continuous medication for control, nor is there gastrointestinal symptoms and weakness. 

2. Throughout the appeal period, gout has been manifested by not more than one to two exacerbations per year in a well-established diagnosis; symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year have not been shown or approximated.


CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for hyperparathyroidism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.31, 4.119, Diagnostic Code (DC) 7904 (2016).

2. The criteria for a rating in excess of 20 percent for gout have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, DCs 5002, 5017 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Notice and Assistance

VA's duty to notify was satisfied by a letter dated in November 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). To the extent that full notice was not provided prior to initial adjudication, the claims were readjudicated in subsequent supplemental statements of the case (SSOC). There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 

The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a) (2016).

The Veteran was provided appropriate VA examination, most recently in June and October 2015. The VA examination reports are thorough and supported by the other treatment evidence of record. The examiners reviewed the record and discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examinations, and the fact there is no rule as to how current an examination must be, the Board concludes the 2015 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Higher Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

	A. Hyperparathyroidism

Service connection, and a noncompensable rating is effective for hyperparathyroidism dating from October 2001. Service connection for hyperparathyroidism was granted in an April 2008 based on a March 2008 Board decision granting the benefit. The Veteran disagreed with the noncompensable rating. The Veteran's hyperparathyroidism is currently rated under Diagnostic Code 7904. 38 C.F.R. § 4.119, Diagnostic Code 7904. Under Diagnostic Code 71904, a 10 percent rating is warranted when the condition requires continuous medication for control. A 60 percent rating is warranted when there is gastrointestinal symptoms and weakness. A 100 percent rating is warranted when there is generalized decalcification of bones, kidney stones, gastrointestinal symptoms (nausea, vomiting, anorexia, constipation, weight loss, or peptic ulcer), and weakness. A Note after the rating criteria provides that, following treatment or surgery, the disorder is rated on the basis of digestive, skeletal, renal, or cardiovascular residuals, or as endocrine dysfunction. DC 7904 does not explicitly provide for a 0 percent, or noncompensable, rating. However, under 38 C.F.R. § 4.31, a noncompensable rating is authorized where, as here, the applicable criteria do not provide such a rating and the requirements for a compensable rating are not met. 

For the following reasons, a uniform noncompensable rating is warranted for the Veteran's thyroid disability in this case.

An August 2002 VA examination reflects thyroid size to be normal. There was no evidence of gross parathyroid nodule. There were no obvious abnormalities. There was no tremor. There was no residual thyroid disease or parathyroid disease or treatment noted at the time of examination. The record reflects that the Veteran underwent removal of parathyroid glands in May 2003 at VA.

A report of VA examination in August 2009 reflects a normal thyroid. There were no signs of anemia, no gastrointestinal abnormalities, and no eye abnormalities. Skin and hair findings were normal. Neurologic and psychiatric findings were normal. Muscle strength was normal. The examiner indicated that there were no signs of thyroid disease. Test results were normal. Assessment was hyperparathyroidism. The status of the disease was listed as cured. There was no evidence of any effect on decalcification of the bone. There was no indication of osteopenia on x-ray reports. It was noted that the Veteran had normal calcium levels and no residual symptoms. No need for continuous medication was noted.

The Veteran was afforded an additional VA thyroid examination in March 2012 by an examiner who reviewed the record. An addendum report dated in June 2012 reflects the examiner's note of history of hyperparathyroidism with onset in approximately 1994, then treated surgically in May 2003. The examiner noted that the Veteran took Vitamin D supplements, but had not received any other type of treatment for a thyroid/parathyroid condition, to include treatment with radioactive iodine. The examiner indicated that the Veteran's hyperparathyroidism is not currently active, as it was resolved by surgery in May 2003. The examiner also noted no current digestive, skeletal, renal or cardiovascular residuals of hyperparathyroidism. 

Additional VA treatment reports have been negative for any complaints or treatment of hyperparathyroidism.

The Veteran was afforded a VA thyroid examination in October 2015 to assess the current manifestations of the condition. There had been no radioactive iodine treatment for a thyroid condition, and that he did not have any residual endocrine dysfunction following the surgery for the thyroid condition. It was noted that the Veteran had no current findings, signs, or symptoms attributable to a hyper/hypo thyroid or hyper/hypo parathyroid. The physical examination was noted to be normal and current lab work showed thyroid levels to be completely normal.

During the period on appeal, the Veteran has testified and generally alleged that his hyperparathyroidism warrants a compensable rating because he must take vitamins to include D and B12 to maintain bone health due to the surgery in 2003. 

Here, however, the Board finds the examination reports, and particularly the comprehensive October 2015 report, to be the most persuasive evidence as to the current disability presented by hyperparathyroidism. The reports consistently show that the Veteran is not on continuous medication and in fact there are no current manifestations of hyperparathyroidism. The 2015 report is thorough and was based on a review of the entire record, including the Veteran's statements. It is accorded controlling probative weight. While the Veteran has asserted that he takes vitamins, these are not continuous medication.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign a compensable rating for the Veteran's hyperparathyroidism. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Again, VA examiners have found that the disease is considered to have no current manifestations. Additionally, staged ratings were considered but are not warranted, as the Veteran has had a stable level of symptomatology throughout the period on appeal as evidenced by the consistently negative examination reports. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 

The Board has considered whether extraschedular consideration is warranted in this case. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. 

Neither the first nor second Thun element is satisfied here. The Veteran's service-connected hyperparathyroidism is not manifested by the need for continuous medication, and there are no identifiable symptoms. The reported signs and symptoms, or lack thereof, and any resulting impairment, are contemplated by the rating schedule as part of the Schedule of Ratings for the Endocrine System. See 38 C.F.R. § 4.119, Diagnostic Code 7904. With respect to hyperparathyroidism, the Rating Schedule contemplates the need for continuous medication as a criteria for a 10 percent rating. Id. In summary, the schedular criteria for endocrine disabilities contemplate a wide variety of manifestations, but the Veteran does not manifest any symptoms at present.

Given the variety of ways in which the rating schedule contemplates impairment due to endocrine disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. There is nothing exceptional or unusual about the Veteran's thyroid condition because the rating criteria reasonably describe his alleged disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration of the Veteran's hyperparathyroidism is not warranted in this case.

Turning to the second element, the Veteran has not alleged, and the medical evidence does not show, that the service-connected hyperparathyroidism results in frequent hospitalizations or marked interference with employment. As such, even if the disability picture were exceptional or unusual, referral would not be warranted.

Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service-connected for multiple disabilities and is receiving combined 100 percent rating; however, he has not alleged that his service-connected disabilities combine to result in additional disability or symptomatology with respect to the disabilities being decided herein. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

In sum, the evidence demonstrates that the Veteran is not entitled to a disability compensable rating hyperparathyroidism. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


      B. Gout

Service connection and a 20 percent rating for gout was granted in a March 2010 rating decision. 

The Veteran's gout is currently rated under DC 5017. Under DC 5017, gout is rated under the criteria for rheumatoid arthritis at DC 5002. Pursuant to the provisions of DC 5002, a 100 percent rating is assigned when there is evidence of an active process with constitutional manifestations associated with active joint involvement that is totally incapacitating. A 60 percent disability evaluation is warranted when there is less symptomatology than the criteria for a 100 percent evaluation but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 40 percent disability evaluation is warranted when there are symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 20 percent disability evaluation is warranted for one or two exacerbations a year in a well-established diagnosis. See 38 C.F.R. § 4.71a, DCs 5017, 5002.

Here, as was noted by the RO, the Veteran is already service connected for and being compensated for his bilateral feet and right ankle. Any exacerbations of the gout process that would occur and affect these areas is already being fully compensated for under the current scheduler ratings for these disabilities. For the following reasons, the preponderance of the evidence is against a rating in excess of 20 percent for gout.

VA treatment records between March 2009 and February 2011 do not reflect evidence of actual incapacitating episodes but do indicate that the Veteran had two episodes of gout, one involving, the right ankle and one involving the left big toe. In November 2010 he reported that he had experienced four events of acute gout in his left big toe and each time he received relief with the medication Colchicine. There was no indication that the symptom combinations were productive of impaired health or that they were actual incapacitating episodes.

The Veteran was afforded a VA examination in March 2012 by an examiner who reviewed the claims folder. In an addendum reported dated in June 2012, the Veteran reported flare-ups of gout approximately three to four times per year, mostly in his feet and ankles, and that he is prescribed daily allopurinol for gout. The examiner noted gout symptoms occurred, when the condition was active, in the bilateral great and second toes, but that the Veteran also experienced foot pain due to bilateral bunions (a separate service-connected condition not at issue here). The examiner also observed no evidence that gout had caused weight loss, impairment of general health, or anemia, or that body systems other than the joints (e.g. ophthalmological, pulmonary, renal systems, etc.) were affected by this gout. The Veteran reported to the examiner that he experienced four or more non-incapacitating exacerbations of gout per year, the most recent two to three months prior to this examination, and that during these non-incapacitating episodes he would stay home, walk very little and with the use of a cane. The Veteran also reported experiencing approximately three incapacitating episodes of gout each year in which he has to stay in bed and have meals brought to his bedside, the last occurring approximately three to four months prior. He indicated that these periods of total incapacitation had a total duration of less than one week over the last 12 months.

VA outpatient clinic treatment records from November 2011 show complaints of acute pain, treated with an injection of Xylocaine and Marcaine (anesthetics) to the right great toe. He reported in February 2012 that this injection provided him with an approximate 60 percent pain relief and allowed him to resume daily activities. A followup injection was administered in May 2012.

The Veteran was afforded VA examination in June 2015 by an examiner who reviewed the claims folder. It showed he continues to be prescribed Allopurinol and was also taking Indocin. He reported a history of three to four attacks per year, mostly in his feet and ankles. The examination indicates no weight loss or anemia due to the gout condition.

The examiner also noted that he reported three non-incapacitating exacerbations per year with the most recent being May 2015 and he also stated the recent attack lasted three to four days. However, the examiner pointed out that the Veteran had not had exacerbations which were incapacitating. The examiner further noted that although the Veteran reported these episodes were incapacitating and occur three to four times a year, a review of the Veteran's VA medical records from 2012 to present does not support this as the Veteran's uric acid levels were normal and his condition is stable on allopurinol. 

Based on the aforementioned evidence, the Board concludes that the criteria for a rating in excess of 20 percent are not met or approximated because the Veteran's gout does not manifest or approximate symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. See DC 5002. Rather, the most recent VA examination report, which the Board considers the most comprehensive, relevant and thus the most probative evidence, shows that the Veteran does not demonstrate definite impairment of health due to his gout nor are there incapacitating exacerbations occurring three or more times a year. The 2015 VA examiner definitively answered the question of how many incapacitating exacerbations occurred when he reviewed the record and found no support for the reported three to four exacerbations. Moreover, his notation that there were no current symptoms reported and uric acid report was normal persuades the Board that there is no symptom combination productive of definite impairment. 

The overall disability picture for gout does not more closely approximate the criteria for an increased rating under the pertinent diagnostic code. 38 C.F.R. § 4.7 (2016). The preponderance of the evidence is against the claims so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Veteran's symptoms from this disability have not met the criteria for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a higher rating for gout. See Schafrath v. Derwinski, 1 Vet. App. at 594.

Also, there is no evidence of exceptional or unusual circumstances to warrant referring the claim for extraschedular consideration. 38 C.F.R. § 3.321 (b)(1) (2016). 

The manifestations of the Veteran's gout are one or two exacerbations per year in a well-established diagnosis. These symptoms are contemplated by the schedular criteria for gout and rheumatoid arthritis, active process. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected gout, such that he is adequately compensated for "considerable loss of working time ...proportionate to the severity of the several grades of disability." See 38 C.F.R. § 4.1 (2016). See 38 C.F.R. § 4.1 (2016). Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order.

Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service-connected for multiple disabilities and is receiving combined 100 percent rating; however, he has not alleged that his service-connected disabilities combine to result in additional disability or symptomatology with respect to the disabilities being decided herein. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. 

In sum, the evidence demonstrates that the Veteran is not entitled to a disability rating in excess of 20 percent for gout. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

An initial compensable rating for hyperparathyroidism is denied.

An initial rating higher than 20 percent for gout is denied.


REMAND

As to these claims for increased and separate ratings, the examination record is inadequate.

I. Right Knee

The Veteran was afforded VA examination of the right knee in June 2015, which was the basis for the award of a 20 percent rating effective from April 2013. The report, as well as earlier examinations in this claim, is inadequate as it does not indicate that range of motion testing of the service-connected right knee was performed in active motion, passive motion, weight-bearing, and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2016). Accordingly, on remand, the AOJ should obtain an additional VA examination to determine the current severity of his right knee disability, to include full range of motion studies performed in active motion, passive motion, weight-bearing, and nonweight-bearing. 

II. Lumbar spine, to include separate rating for left lower extremity radiculopathy; and Right Lower extremity radiculopathy

The Veteran essentially contends that his symptoms of low back disability, as well as right and left lower radiculopathies, have increased in severity since his most recent VA examination in May 2012. Additionally, he reported some concerns regarding the adequacies of the VA examination provided. Moreover, he argues in essence that the examination in 2012 did not fully consider or articulate the effects of his lower extremity radiculopathy. He asserts that these lower extremity radiculopathies each warrant separate 20 percent ratings based on manifestations that he has experienced throughout the entire appeal period.

Where a veteran asserts that a disability has worsened since his/her last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that clearly the most recent VA examination in 2012 is too remote and does not thoroughly address the Veteran's arguments as to current manifestations, and also does not fully contemplate the manifestations of the lower extremity radiculopathies throughout the appeal period as the Veteran's assertions have not been addressed; a new examination is warranted as to these disabilities.

III. TDIU

The Veteran's claim for a TDIU is inextricably intertwined with the remanded claims; consideration of this matter must be deferred pending resolution of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Schedule the Veteran for an appropriate VA examination to ascertain the severity of the right knee disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. 

In assessing the severity of the right knee disability, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing. Any further testing deemed necessary should also be conducted and the results recorded in detail.

If the Veteran describes flare-ups of pain, as he has done in the past, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. An estimate of additional degrees of limitation of motion during the flare-ups should be provided.

The examiner must also provide an opinion as to the functional impairments caused by the service-connected disability.

The underlying reasons for any opinions expressed must be included in the report. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

2. Schedule the Veteran an appropriate VA examination in order to determine the current nature and severity of his service-connected lumbar spine disability, to include the evaluation of right and or left lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner in conjunction with the examination. The Veteran is considered a reliable historian.

All indicated evaluations, studies, and tests deemed to be necessary should be accomplished. 

The examiner must also provide an opinion as to the functional impairments caused by the service-connected disability.

The AOJ should ensure that the examiner provides all information required for rating purposes. 

The rationale for all opinions expressed must also be provided.

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims for increased ratings for right knee, lumbar spine, to include consideration of a separate rating for the left lower extremity radiculopathy, right lower extremity radiculopathy, and a TDIU, should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.

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).




______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs