Citation Nr: 1807015	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  13-18 848	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased rating for low back pain syndrome evaluated as 20 percent disabling from April 18, 2008 through May 30, 2008.

2. Entitlement to an increased rating for low back pain syndrome evaluated as 20 percent disabling since May 31, 2008.

3.  Entitlement to an increased rating for right knee degenerative arthritis evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016.

4.  Entitlement to an increased rating for right knee degenerative arthritis evaluated as 10 percent disabling since November 3, 2016.

5. Entitlement to an increased rating for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016.

6. Entitlement to an increased rating for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus evaluated as 10 percent disabling since November 3, 2016.

7.  Entitlement to an increased rating for degenerative arthritis of the left knee evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016.

8.  Entitlement to an increased rating for degenerative arthritis of the left knee evaluated as 10 percent disabling since November 3, 2016.

9.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul Bametzreider, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to September 1972. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.
 
The Veteran testified in December 2015 before the undersigned. A transcript of the hearing is associated with the claims file. 

While the Veteran's electronic claims file reflects his March 2015 appointment of the Disabled American Veterans as his representative, the appellant reported at the December 2015 hearing that he had dismissed that organization as his representative, and that he represented himself.

In May 2016 the Board remanded the issues for evidentiary development. The case has now been returned to the Board for further appellate action. 

In May 2016 the Board remanded the issue of whether combined service connected disability evaluation had been correctly calculated. That issue originated from a November 2014 appeal of an October 2014 rating decision. The combined rating at that time was 80 percent, in effect from November 15, 2012. In July 2016, the Veteran was assigned a 100 percent rating for major depressive disorder effective April 18, 2008. As such, the Veteran has been in receipt of a 100 percent combined rating, effective since April 18, 2008. As no combined rating higher than 100 percent may be assigned, the issue of whether the combined service connected disability evaluation was correctly calculated is moot. 

The issue of whether a November 1972 rating decision that denied entitlement to service connection for injury to right hand should be revised on the basis of clear and unmistakable error was raised in a September 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction.  Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

The issues of entitlement to an increased rating for low back pain syndrome since May 31, 2008; and entitlement to increased ratings for degenerative arthritis of the knees, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus since November 3, 2016; as well as the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  Prior to May 31, 2008, the preponderance of the evidence shows that lumbar flexion was greater than 30 degrees, and favorable ankylosis of the entire thoracolumbar spine was not shown.

2.  Prior to November 3, 2016, the preponderance of the evidence shows that right knee flexion was greater than 30 degrees, and extension was full.

3. Prior to November 3, 2016, the preponderance of the evidence shows that right knee recurrent subluxation or lateral instability were no more than slight.

4. Prior to November 3, 2016, the preponderance of the evidence shows that left knee flexion was greater than 30 degrees, extension was full, and neither subluxation nor lateral instability were shown.


CONCLUSIONS OF LAW

1.  Prior to May 31, 2008, the criteria for a rating in excess of 20 percent for low back pain syndrome were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

2.  Prior to November 3, 2016, the criteria for a rating in excess of 10 percent for right knee degenerative arthritis were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263 (2017).

3. Prior to November 3, 2016, the criteria for a rating in excess of 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263.

4. Prior to November 3, 2016, the criteria for a rating in excess of 10 percent for left knee degenerative arthritis were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

The Veteran asserts that his low back pain syndrome, right knee degenerative arthritis, right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus, and left knee degenerative arthritis are more severe than represented by the currently assigned disability ratings. The Veteran claimed entitlement to increased ratings for each of the contested disabilities on April 18, 2008. Those claims were denied and the Veteran appealed.

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1999).  Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal.

Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.


Low back pain syndrome from April 18 to May 30, 2008

Limitation of motion of the lumbosacral spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, and the General Rating Formula for Diseases and Injuries of the Spine (rating formula). Under the rating formula a 20 percent rating is assigned for forward thoracolumbar flexion greater than 30 degrees but not greater than 60 degrees; or, when the combined range of thoracolumbar motion is not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward thoracolumbar flexion is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. 

The Veteran was provided a VA examination concerning his low back disability in May 30, 2008. The Veteran reported daily flare-ups caused by walking. The Veteran demonstrated forward thoracolumbar flexion to 80 degrees, extension to 20, and 25 degrees of motion in all other planes.  There was no additional decreased range of motion on repetitive motion. 

VA treatment records for the period decided herein do not reflect symptoms in excess of those reported by the May 30, 2008 examination. 

During the period prior to May 30, 2008 the evidence of record preponderates against finding that the claimant's low back pain syndrome was manifested by thoracolumbar flexion limited to either 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges that the Veteran has asserted that his low back disability is manifested by pain. The May 2008 examiner expressly considered such complaints of pain, and flare-ups, but did not indicate that such pain or flare-ups were productive of additional functional impairment. In this regard, no evidence of record indicates that low back pain, weakness, or fatigue were so severe as to functionally limit lumbar flexion to 30 degrees or less during the period decided herein. At no time does the medical evidence of record indicate that pain, weakness or fatigue approximated favorable ankylosis of the entire thoracolumbar spine.

The VA examinations of record are adequate to decide the issue at this time. 38 C.F.R. § 3.159 (c). The May 30, 2008 examination substantially complied with the requirements of 38 C.F.R. § 4.59 in range of motion testing and reporting. In particular, the examiner specifically noted reports of pain which was increased with ambulation. There is no evidence to indicate that specific active and passive range of motion testing would reveal such a substantial decrease in functional movement so as to warrant a higher rating during the period considered herein. The Veteran has not specifically argued, and he has not offered any proof that the May 30, 2008 VA examination did not accurately represent the severity of his disorder at that time. To the extent that the May 30, 2008 examination failed to contemplate pain on weight bearing, or active range of motion, any additional examination would not bear on the narrow time period decided herein. Hence, remanding this issue for further examination would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case.  Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the Veteran).

The Board considered the Veteran's statements, to include reports of pain, weakness and fatigability. The Veteran did not specifically argue that pain, weakness or fatigability were productive of a loss of range of motion during the period decided herein. Primarily, the Veteran argued that such symptoms prevented him from performing prolonged physical activity. The Veteran is competent to report such symptoms as he experienced them.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, the criteria needed to support higher ratings for each disability require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  As such, the Veteran's assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support a higher rating than that presently assigned.

Accordingly, the preponderance of the evidence is against the claim, and entitlement to a rating higher than 20 percent for a low back pain syndrome prior to May 31, 2008 is denied. 38 U.S.C. §§ 1155, 5107.

Bilateral knees from April 18, 2008 to November 2, 2016

Limitation of motion of the knees is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is assigned for flexion of the knee limited to 45 degrees; and a 20 percent rating is assigned for flexion limited to 30 degrees. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is assigned for extension of the knee limited to 10 degrees; 20 percent rating is assigned for extension limited to 15 degrees. 

Separate ratings may be awarded under Diagnostic Codes 5260 and 5261 based on limitation of flexion and limitation of extension of the same joint. See VAOPGCPREC 9-2004. 

The normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 

Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability warrants a 10 percent rating, and moderate recurrent subluxation or lateral instability warrants a 20 percent rating. Severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

At the December 2015 Board hearing, the Veteran reported that his knee disabilities were manifested by pain and swelling, and that it was hard for him to walk 50 feet. 

The Veteran was provided a VA examination with regard to his knees in May 2008. The Veteran reported pain, weakness, stiffness and swelling, as well as daily flare-ups precipitated by weather and walking. The examiner measured range of motion as full extension and flexion to 120 degrees. Median and lateral ligaments, anterior and posterior ligaments, and the medial and lateral meniscus appeared intact.  There were no reported episodes of dislocation or subluxation. The examiner noted degenerative tears of both knees, and chronic knee pain. 

At a November 2012 VA examination of the knees, the Veteran exhibited 90 degrees of flexion bilaterally with pain beginning at that point.  There was no limitation of knee extension. After repetitive use testing, range of motion was unchanged bilaterally. The Veteran reported flare-ups of aggravated pain after ambulating for more than half a block and when climbing steps. The examiner noted a right meniscal tear but no frequent episodes of joint locking, pain or effusion related to that injury. There was no evidence or history of recurrent patellar subluxation or dislocation, and stability testing was normal in both knees. The examiner stated that the knee disabilities were productive of pain with ambulation and climbing steps. 

The VA treatment records throughout the appeal period note complaints of pain and swelling in the knees, but do not report symptoms more severe than those observed at the VA examinations discussed above. In August 2015, the Veteran reported left knee instability, stiffness and swelling. However, such instability was reported to be related to a June motor vehicle accident and is not further documented by the treatment records.

During the period prior to November 2, 2016, the evidence of record preponderates against finding that the claimant's degenerative arthritis of the knees was manifested by flexion limited to 30 degrees or less, or extension limited to 10 degrees or more in either knee. The Board acknowledges that the Veteran has complained continuously of bilateral knee pain, weakness, fatigability and swelling. The May 2008 and November 2012 examinations did not, however, indicate that such symptoms were productive of functional limitation which would approximate any further loss of range of motion.

The Board finds that the VA examinations of record are adequate to decide the issue at this time. 38 C.F.R. § 3.159 (c). The November 2012 examination included an evaluation of whether the bilateral knee conditions interfered with weight-bearing, and provided range of motion measurements of the opposite joints. 38 C.F.R. § 4.59, Correia v. McDonald, 28 Vet. App. 158 (2016). While the examinations did not include an evaluation of both active and passive ranges of motion, the VA examinations substantially complied with the requirements of 38 C.F.R. § 4.59 in their range of motion testing and reporting. In particular, the May 2008 and November 2012 VA examinations considered reports of pain, and the November 2012 examination explicitly indicated the range of motion at which objective evidence of painful motion began. There is no evidence to indicate that specific active and passive range of motion testing would reveal such a substantial decrease in functional movement so as to warrant a higher rating during the period considered herein. The Veteran has not specifically argued that either the May 2008 or the November 2012 VA examinations did not accurately represent the severity of his condition at the time. Moreover, even to the extent that the May 2008 and November 2012 VA examinations failed to contemplate active range of motion, any additional examination would not bear on the nature of any limitation of motion for the time period addressed herein. Hence, remanding this issue for further examination would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. Soyini. 

The Board considered the Veteran's statements, to include reports of pain, weakness and fatigability. The Veteran has not specifically argued that pain, weakness or fatigability are productive of loss of knee range of motion. Primarily, the Veteran has argued that such symptoms prevent him from performing prolonged physical activity and taking stairs. The Veteran is competent to report such symptoms as he experienced them.  See, e.g., Layno, 6 Vet. App. at 470.  However, the criteria needed to support higher ratings for each disability require medical findings that are within the province of trained medical professionals.  See Jones, 7 Vet. App. at 137-138.  As such, the Veteran's assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support separate or higher ratings based on limitation of motion than those presently assigned.

Turning to the right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus, the record preponderates against finding that such disability was manifested by moderate recurrent subluxation or lateral instability. Indeed, both the May 2008 and November 2012 VA examinations found no episodes of even mild recurrent subluxation or lateral instability in the right knee.  Further, VA treatment records do not indicate otherwise. As such, the evidence preponderates against a finding that the right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus approximates the criteria for a 20 percent rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a.

While the VA treatment records do indicate a complaint of left knee instability in August 2015, the record preponderates against finding that such condition was "recurrent" during the pertinent period as it is not otherwise reported. As such, no separate rating is warranted for recurrent left knee subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 

While both the May 2008 and November 2012 VA examinations note meniscal tears of the knees, neither examination reports that any dislocation of semilunar cartilage was productive of frequent episodes of locking, pain or effusion into the joint. As such, no higher or separate rating is warranted for dislocation of semi-lunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

The Board has considered whether the Veteran may be entitled to a rating under any other diagnostic code pertaining to disabilities of the knee. In that regard, the Veteran has not asserted, and the record does not demonstrate evidence of ankylosis, removal of semi-lunar cartilage, nonunion of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263. 

Accordingly, the preponderance of the evidence is against the claims, and entitlement to ratings higher than 10 percent for degenerative arthritis of each knee, as well as entitlement to a rating higher than 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus prior to July 12, 2016 is denied. 38 U.S.C. §§ 1155, 5107.



ORDER

Entitlement to an increased rating for low back pain syndrome evaluated as 20 percent disabling from April 18, 2008 through May 30, 2008 is denied.

Entitlement to an increased rating for right knee degenerative arthritis evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016 is denied.

Entitlement to an increased rating for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016 is denied. 

Entitlement to an increased rating for degenerative arthritis of the left knee evaluated as 10 percent disabling from April 18, 2008 through November 2, 2016 is denied. 


REMAND

Low back pain syndrome since May 31, 2008

The November 2012 VA spine examiner reported that the Veteran was unable to perform repetitive use testing due to pain and stiffness. Further the examiner did not note whether repetitive use of the lumbar spine would be productive of additional functional limitation. 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). Remand is warranted in order to obtain a medical opinion to clarify the functional limitation resulting from the Veteran's low back pain syndrome after repetitive motion since May 31, 2008.

Bilateral knees since November 3, 2016

The Veteran was provided a VA examination to assess the current severity bilateral knee and spine conditions on November 3, 2016. The United States Court of Appeals for Veterans Claims has held in Sharp v. Shulkin, 29 Vet. App. 26 (2017) that where a VA examination is not conducted during a flare-up, the examiner is expected to nonetheless offer an opinion as to functional impact of flare-ups based on estimates derived from information procured from relevant sources, including the lay statements of veterans. Additionally, in light of the holding in Correia, 28 Vet. App. 158, VA examinations for musculoskeletal disability must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). 

As the November 3, 2016 VA examination was not in compliance with the above holdings, the Board orders new VA examinations which conforms to these requirements.

Individual unemployability

The Board acknowledges that the appellant has been in receipt of a 100 percent schedular rating for major depressive disorder since April 14, 2008.  Notably, however, a grant of a 100 percent disability does not always render the issue of total disability evaluation based on individual unemployability due to service connected disorders moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation  under 38 U.S.C. § 1114 (2012). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, special monthly compensation may be warranted if the Veteran has a 100 percent combined rating for disorders, and VA finds that individual unemployability is warranted based on another service-connected disability or disabilities that have a combined rating of 100 percent.  Such a combination would satisfy the second requirement for special monthly compensation of an additional disability or disabilities of 60 percent. See generally id. at 294.

The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is inextricably intertwined with the issues remanded above. This issue is therefore remanded, to be addressed after the following development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

1. The Veteran must be contacted and requested to identify any and all medical providers both VA and private who have treated the disorders at issue since May 2017.  Thereafter, the RO must undertake appropriate action to secure all identified records.  If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected low back pain syndrome, degenerative arthritis of the knees, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed.

Perform all necessary tests to determine the current nature and severity of the spine and knee disorders. In evaluating the Veteran, the examiner should report complete range of motion findings. The examiner should indicate whether pain or weakness significantly limits functional ability during flare-ups or when the joints are used repeatedly over a period of time. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination.

The examiner must specifically address any reported history of flare-ups, to include as reported by the November 2016 VA examination. If the Veteran reports flare ups or the record reveals flare-ups of knee or spine symptoms, the examiner must expressly address the severity, frequency and duration; name the precipitating and alleviating factors and estimate "per the veteran" the extent to which they affect functional impairment. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion.

The examiner is to specifically test the range of active, passive, weight-bearing and nonweight-bearing motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not possible in this case, he or she should clearly explain why that is so.

The examiner must specifically provide a retrospective opinion, addressing the nature of any functional limitation due to a low back pain syndrome after repetitive movement since May 31, 2008. In connection with the foregoing, the examiner should consider any relevant reports of the Veteran, as well as the results of the November 2012 examination. The examiner should attempt to estimate the additional limitation of motion after repetitive movement of the lumbar spine. If feasible, such estimate should be expressed in terms of degrees of range of motion loss.

The examiner must specifically describe any and all functional impairment due to a low back pain syndrome, degenerative arthritis of the knees, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus.  The examiner must specifically describe how any functional impairment due to the foregoing disorders impacts the Veteran's ability to obtain or maintain employment.  The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the appellant's low back pain syndrome, degenerative arthritis of the knees, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus alone preclude all forms of substantially gainful employment that are consistent with the Veteran's education and occupational experience.
  
A complete rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

3. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failing to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable.

4. The AOJ must review the aforementioned examination report to ensure that it is in complete compliance with the directives of this remand, and that the examiner has documented their consideration of all records contained in Virtual VA and VBMS, as appropriate. If any report is deficient in any manner, the AOJ must implement corrective procedures.

5. After undertaking any other development deemed appropriate, to include the provision of any appropriate VA examinations to assess the current nature and severity of the Veteran's service-connected disabilities, readjudicate the issues on appeal, to include entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. If any benefit sought is not granted, the Veteran must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

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. §§ 5109B, 7112 (West 2014).




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs