Citation Nr: 0529637 Decision Date: 11/04/05 Archive Date: 11/14/05 DOCKET NO. 03-00 422A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for chondromalacia of the right knee, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for chondromalacia of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from November 1970 to November 1972. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in October 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran testified before the undersigned Veterans Law Judge in July 2005. In October 2005, the Board received evidence submitted by the veteran with waiver of review by the Agency of Original Jurisdiction (AOJ). This evidence includes a statement by VA health care providers that the veteran is totally and permanently disabled and unemployable. Claims for Entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service-connected disability (TDIU), and for nonservice connected pension are hereby inferred and referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The Board reviewed the record and finds that additional development is necessary before appellate action may be completed in this case. First, concerning the claim for service connection for PTSD, the Board observes that the RO must be offered the opportunity to obtain additional service personnel records, to properly verify the veteran's averred stressors in accordance with provisions of VA Adjudication Manual M21-1 for cases of PTSD involving personal assault, and to accord the veteran an examination to determine the nature and etiology of his currently diagnosed PTSD. VA inpatient and outpatient records show that the veteran is under treatment for PTSD that has been found to be related to stressors he experienced as a recruit in Marine boot camp. In addition, in evidence submitted received by the Board in October 2005, the veteran submitted a statement proffered by Susan N. Vigeant, A.P.R.N., B.C., of the Columbia, South Carolina VA Medical Center (VAMC) reflecting that the veteran has been diagnosed with PTSD, major recurrent depression, and panic disorder with agoraphobia that has been found to be the result of his experiences as a recruit in boot camp. Yet, the RO has not had the opportunity to develop the veteran's claim as one involving personal assault. Significantly, regarding PTSD cases where the veteran asserts personal assault as the in-service stressor, VA has a heightened duty to assist in gathering evidence corroborating the in-service stressors in accordance with the provisions of VA Adjudication Manual M21-1. Patton v. West, 12 Vet. App. 272 (1999). In such cases, M21-1 provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. See M21-1, part III, 5.14(c). As development of the claim under M21-1 has not been completed, the Board finds that further actions must be undertaken to ensure that the VA's duty to assist the veteran in the development of his claims has been complied with. Second, concerning the veteran's claim for increased evaluations for his bilateral knee disabilities, the Board notes that the most recent VA examination of record was conducted in August 2002. At the July 2005 hearing, the veteran testified that his bilateral knee disability worsened in severity since the last examination. In this regard, VA's General Counsel has indicated that when it is asserted that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Consequently, the Board concludes that a contemporaneous VA examination is needed in order to make an informed decision regarding the veteran's current level of functional impairment and adequately evaluate his current level of disability. In addition, while the RO granted a separate, compensable evaluation for a tender scar to the right knee, which was demonstrated by the medical evidence to be the result of surgery required to treat his service-connected right knee disability, the RO has not yet had an opportunity to evaluate other manifestations of the veteran's right and left knee disabilities in accordance with the holding of the U.S. Court of Veterans Appeals (hereinafter Court) in Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), allowing separate, compensable evaluations for certain manifestations of a knee disability, provided the criteria for doing so is met, i.e., a symptomatic scar. See also VAOPGCPREC 9-98, 63 Fed. Reg. 56,703-04 (Oct. 22, 1998); VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997). Additionally, the VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." VAOPGCPREC 9-2004 (September 17, 2004). In this case, the veteran's bilateral knee disability is evaluated under Diagnostic Code 5257. The medical evidence reveals findings of bilateral knee degenerative joint disease, limitation of motion in both knee joints, suprapateller effusion, bilaterally, and genu varum. These manifestations may be separately evaluated under 5003, 5258, and 5263 (as an analogous rating). The Board finds it is necessary to proffer the veteran further examination to include all appropriate clinical testing, with review of the claims file, in order to determine the nature, extent and etiology of the veteran's manifested psychiatric disability, to include PTSD, and to determine the nature and extent of his service connected bilateral knee disabilities. See 38 C.F.R. § 3.159(c)(4) (2005). Accordingly, and to ensure full compliance with due process requirements, further appellate consideration will be deferred and the case is REMANDED to the AMC/RO for the following development: 1. The AMC/RO should ensure it has copies of any and all records of treatment from the VAMCs in Columbia and Charleston, South Carolina. 2. The AMC/RO should ascertain whether or not the veteran was medically retired or discharged/resigned from the U.S. Postal Service for medical reasons and, if he was, obtain the decision, documents, or examination reports finding him unfit to continue service and any and all medical records used in arriving at that decision. 3. The RO should obtain the veteran's entire service personnel record, including (but not limited to) copies of evaluations, citations, and disciplinary proceedings. 4. If the service personnel records are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the veteran may provide. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the service medical or service personnel records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, chapter 4, paras. 4.28 and 4.29. If necessary, the RO should request that the veteran augment the information that he has already provided. 5. The RO/AMC should offer the veteran the opportunity to obtain statements of individuals with whom he served, who may have observed changes in his behavior and demeanor, statements of friends and or family members he may have confided in about the abuse he suffered in boot camp. The RO/AMC should also offer the veteran an opportunity to have his sister write a letter attesting to the contents of the letter, or producing a copy of the letter, that the veteran testified he sent his grandmother from boot camp, and that his sister read. He testified that he wrote of his experiences to his Grandmother and that he confided his fear that he would be killed. 6. Following completion of the #1-4 above, the AMC/RO should make arrangements for the veteran to be afforded examinations to determine the nature, extent, and etiology of his claimed psychiatric disability, to include PTSD,. All indicated tests and studies should be performed. The claims folder, including all newly obtained evidence and the veteran's service medical records, must be sent to the examiner(s) for review. The examiner(s) should describe the onset and history of any manifested psychiatric disability, to include PTSD; any current symptoms and manifestations attributed to an acquired psychiatric disorder; and provide diagnoses for any and all psychiatric disorders. The examiner is requested to offer an opinion as to the etiology of any diagnosed psychiatric disability, including the following: a) if a psychiatric disability is diagnosed, is it as likely as not that it had its onset during active service or, in the alternative is the result of active service or any incident thereof? b) if PTSD is diagnosed, is it as likely as not that it had its onset during active service or, in the alternative is the result of stressors that are the result of his active service or any incident thereof? 7. Following completion of the #1-4 above, the veteran should be afforded a VA orthopedic examination in order to fully assess the current nature and severity of his service-connected bilateral knee disorders. The claims folder must be made available to the examiner to review in conjunction with the examination. The examiner should note the range of motion of the joint(s) and indicate the normal range of motion for each joint(s). The examiner should also state whether there is any additional limitation of function of these joints, if possible described as additional loss of motion, due to pain, flare-ups of pain, weakened movement, excess fatigability or incoordination on movement. Special attention should be given to the presence or absence of pain, stating at what point in the range of motion pain occurs and at what point pain prohibits further motion, and whether such is supported by objective findings. Any indicated tests should also be accomplished. 8. After undertaking any other development deemed essential in addition to that specified above, the AMC/RO should re-adjudicate the veteran's claims for entitlement to service connection for a psychiatric disorder, to include PTSD, and to increased evaluations for his service-connected right and left knee disabilities, in accordance with M21-1, part III, 5.14(c) and Patton, supra, and with Esteban, supra, VAOPGCPREC 9-98, VAOPGCPREC 23-97, and VAOPGCPREC 9-2004. If any benefit sought on appeal remains denied, the veteran should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board for further review, as appropriate. The appellant need take no action until he is so informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that failure to appear for scheduled VA examination without good cause could result in the denial of his claims. 38 C.F.R. § 3.655 (2005). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. 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 Supp. 2005). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2004).