Citation Nr: 1801724 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for lumbar degenerative joint disease (DJD). 2. Entitlement to service connection for right knee DJD. 3. Entitlement to a rating in excess of 30 percent for post total arthroplasty left knee disability. 4. Entitlement to a rating in excess of 20 percent for postoperative residuals of a left shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1974 to December 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) RO. The Veteran failed to report for a videoconference hearing before the Board scheduled at his request in November 2014; accordingly, the request is deemed to be withdrawn. From June 17, 2014 to August 1, 2015, the Veteran's left knee disability and from August 5, 2015 to March 1, 2016 his left shoulder disability were rated 100 percent. Therefore, for these periods of time the ratings for the left knee and the left shoulder are not for consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if action is required. REMAND Regarding the low back, the record shows that the Veteran reported on several occasions that he had sustained a back injury at work in December 1993. He stated that he had back surgery in January 1994, and two additional surgeries in 1995. Medical records pertaining to the treatment he received from 1993 to 1995 are not associated with the record. They are pertinent evidence that is outstanding, and must be sought. On September 2013 VA lumbar spine examination, the examiner opined that it was less likely as not that the Veteran's current low back disability was caused or aggravated by his left knee disability. The rationale is stated in speculative terms, "does not necessarily commit the other arthritis such as the back" that can be interpreted as somewhat supportive of the claim, that does not discuss the impact of the intercurrent postservice back injury, and that addressing secondary service connection and noting that the Veteran had back surgeries prior to the TKR fails to acknowledge that left knee disability was service connected prior to the TKR, and the back surgeries. Her rationale fails to address the Veteran's assumed theory of entitlement that an altered gait due to left knee disability may have impacted on the back. An addendum medical opinion is needed. The Veteran also claims that his right knee disability is secondary to his service-connected left knee disability. On August 2013 VA knee examination, the examiner opined that the Veteran's "current right knee condition as likely as not caused or aggravated by service-connected left knee injury", which supports the Veteran's claim. However, the rationale provided seems to support the opposite, and likewise does not directly address the Veteran's suggested theory of entitlement. That opinion likewise requires clarification. Regarding the ratings for the Veteran's left knee and left shoulder disabilities, he has received surgical intervention for each disability since the 2013 VA examinations, and the findings then consequently cannot accurately reflect the current status of the disabilities. Accordingly, contemporaneous examinations to assess the disabilities are necessary. The case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify the providers of all evaluations and treatment he has received for his low back and right knee disabilities since service, and for his left knee and left shoulder disabilities since 2016, and to submit authorizations for VA to secure records of any such private evaluations or treatment, specifically including complete records of the treatment he received for his back in connection with his on-the-job injury and subsequent surgeries from 1993 through 1995. The AOJ should secure for the record all outstanding records of the evaluations and treatment from the providers identified. 2. The AOJ should then arrange for an orthopedic examination of the Veteran to determine the etiology of his back and right knee disabilities and the current severity of his service-connected left knee and left shoulder disabilities. Upon review of the record and examination of the Veteran the examiner should provide opinions that respond to the following: (a) Please identify the likely etiology for the Veteran's current low back and right knee disabilities, to specifically include whether it is at least as likely as not (a 50% or greater probability) that either disability was caused or aggravated (the opinion must address aggravation) by his service-connected left knee disability. The rationale must acknowledge that the left knee disability was service-connected prior to any documentation of a current back or right knee disability (to include the noted postservice intercurrent on-the-job back injury and surgeries), and must address the assumed proposed theory of entitlement that the claimed disabilities were caused or aggravated by a long-standing gait impairment due to the left knee disability. (b) The examiner should also assess the severity of the Veteran's left knee and left shoulder disabilities. All findings and related functional impairment should be described in detail. All indicated studies must be completed (to include range of motion studies, with notation of any additional functional limitations due to factors such as weakness, pain, incoordination, weight-bearing, fatigue, use, etc.). Regarding the left knee the examiner should specifically indicate whether there are chronic postoperative residuals of severe pain or weakness. The examiner should comment on restrictions on all occupational and daily activity functions due to the disabilities. The examiner must include rationale with all opinions. 3. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).