Citation Nr: 0813243 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 04-15 308 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral ankle disorder. 3. Entitlement to service connection for major depressive disorder, including as secondary to a bilateral knee disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from May 1983 to August 1983. The issues of service connection for a bilateral knee disorder and a bilateral ankle disorder come before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issues of service connection for bilateral knee and ankle conditions were denied by the Board in March 2005. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2007 Memorandum Decision, the Court vacated the Board's March 2005 decision, and remanded the case to the Board for readjudication consistent with the Court's decision. The issue of service connection for major depressive disorder comes before the Board on appeal from a May 2004 rating decision of the RO. In November 2006, the Board remanded this issue to the RO in order to obtain all treatment information and Social Security Administration (SSA) records, as well as to ensure proper notification of the Veterans Claims Assistance Act of 2000 for the issue of direct service connection. Updated notice was provided, SSA records were obtained, and the veteran submitted authorization for several medical records requests. The Board further notes that these two cases have been merged, under the original docket number assigned to the veteran's claims for service connection for bilateral knee and ankle conditions, and that the issues herein shall be decided simultaneously. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran filed claims for service connection for a bilateral knee condition and a bilateral ankle condition in July 2002. The RO denied the veteran's claims in an October 2002 rating decision. Although the veteran had complaints of knee and pain during his period of active service, the RO noted that the veteran failed to provide evidence of treatment or diagnosis for either a bilateral knee condition or a bilateral ankle condition. The veteran was afforded a VA examination in February 2004. The examiner diagnosed the veteran with stress syndrome, bilateral, lower extremities, resolved. In the examiner's opinion, abnormal bone scans in 1983 led to a diagnosis of stress syndrome. Since that time, all x-rays have been read as normal. Therefore, according to the examiner, the veteran had stress reaction in his lower extremities, brought upon by basic training, which has largely resolved with no permanent disability. The examiner also noted that the veteran did not seek treatment for pain in his lower extremities for 12 years prior to the examination. The veteran's denials were affirmed in a March 2004 statement of the case (SOC), and the veteran's claims were denied in a March 2005 Board decision. While the Board reviewed the veteran's complaints of pain during service, the decision noted that the record was silent as to objective evidence of a current bilateral knee or ankle disability. Therefore, the Board denied the veteran's claims for service connection. The veteran appealed the Board's decision. In July 2007, the Court, in vacating the Board's decision, noted that while the February 2004 VA orthopedic examiner provided a diagnosis of the veteran's symptoms as "[s]tress syndrome, bilateral, lower extremities, resolved", the March 2004 mental disorders examiner provided an Axis III diagnosis of "chronic pain in knees and ankles." The Court found that the Board, in finding no evidence of current bilateral knee and ankle disabilities, failed to provide any discussion with respect to the March 2004 VA examination that appeared favorable to the appellant's claim. Thus, the Court remanded the matter for readjudication supported by adequate statement of reasons and bases. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410 (2006). In order to comply with the Court's order the Board finds that the veteran should be afforded another VA examination that considers the March 2004 diagnosis of "chronic pain in knees and ankles." As to the issue of service connection for major depressive disorder, the Board notes that in the November 2006 remand, the Board requested that additional records be obtained including SSA records. When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990). The RO has obtained medical records from SSA which includes some of the records identified in the November 2006 remand such as those from Regional Baptist Medical Center, and Trinity Lutheran North. However, the veteran in October 2007, requested that VA obtain treatment records from additional medical providers and submitted VA Forms 21-4142 in order for VA to obtain such records. On remand, the RO should ensure that all available records requested in the Board's remand have been obtained as well as records from those health care providers identified in the most recent VA Forms 21-4142. If these records have already been requested, then they must be associated with the claims file or, if any of these records do not exist or are otherwise unavailable, that should be noted and associated with the veteran's claims file. The Board notes further, that with respect to the veteran's claim for service connection for a major depressive disorder, claimed as secondary to a bilateral knee condition, the veteran was afforded a VA psychiatric examination in March 2004. Because the veteran's February 2004 orthopedic examination failed to provide a diagnosis of a current, bilateral knee disability, the March 2004 examiner did not opine as to whether the veteran's major depressive disorder was related to his period of active service, either directly or secondary to a bilateral knee disorder. Following completion of the VA examination regarding the veteran's claimed orthopedic disabilities (knees and ankles), the case should be returned to the March 2007 VA mental disorders examiner for a supplemental opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to obtain any available records from the four private medical providers as identified by the veteran in the October 2007 VA Forms 21-4142 of record. In addition, the RO should review the record and ensure that all records as requested in the Board's November 2006 remand have been obtained. If any records are unavailable, that information should be noted and associated with the veteran's claims file. 2. After receiving the above medical records, to the extent available, obtain a VA orthopedic examination to determine the nature and etiology of any current bilateral knee and ankle disorders. The examiner should ensure that all appropriate diagnostic testing has been accomplished in order to determine whether the veteran's complaints of chronic knee and ankle pain are the result of specific underlying pathology. After an examination and a review of the claims folder, the examiner(s) should address the following: a) Identify all current bilateral knee and ankle disorders; b) As to each diagnosed knee and ankle disorder, indicate whether it is at least as likely as not that any current disorder(s) is/are etiologically related to the veteran's periods of active service. In responding to this question, the examiner should indicate whether the veteran has current pathology of the knees and/or ankles that would account for the Axis III diagnosis in the March 2004 mental disorders examination of "chronic pain in knees and ankles." The claims file must be made available to the examiner and the examiner should indicate in his/his report whether or not the claims file was reviewed. A rationale for any opinion expressed should be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After the veteran has received a VA orthopedic examination, and after the results of that examination are associated with his claims file, refer the case to the March 2004 VA mental disorders examiner, or if unavailable, to another suitably qualified examiner. The examiner should address the following: a) Identify all current psychiatric disorders; b) As to each diagnosed disorder, indicate whether it is at least as likely as not that any current psychiatric disorder(s) is/are etiologically related to the veteran's period of active honorable service, OR whether it is at least as likely as not due to, the result of, or permanently aggravated by a current, bilateral knee or ankle condition. The claims file must be made available to the examiner and the examiner should indicate in his/his report whether or not the claims file was reviewed. A rationale for any opinion expressed should be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. The RO/AMC should then review the record, including any additional evidence obtained pursuant to this remand, then readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the veteran should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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 Supp. 2007). ______________________________________________ S. L. Kennedy 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) (2007).