Citation Nr: 1108550 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 07-34 592A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of a left knee injury and fracture of the left fibula. 2. Entitlement to a disability rating in excess of 10 percent prior to March 27, 2008, and in excess of 20 percent thereafter for residuals of a left ankle and foreleg injury. 3. Entitlement to service connection for a back condition to include as secondary to a left leg injury. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression to include as secondary to left knee injury and fracture of the left fibula. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. dR. Dale INTRODUCTION The Veteran served on active duty from November 1979 to November 1982 and from September 1989 to August 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2008, the RO increased the rating for residuals of a left ankle and foreleg injury from 10 percent to 20 percent disabling, effective March 27, 2008. 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 This matter was previously before the Board in March 2009, at which time the case was remanded for additional development. Specifically, the Board determined that VA examinations were required prior to adjudication of the Veteran's claims. In correspondence dated in April 2009, the Board resent the Board's remand as the previous order was returned by the post office as undeliverable. The Veteran was scheduled for VA examinations to be conducted in October and November 2009. However, the Veteran failed to appear for the examinations as scheduled. A note dated in November 2009 indicated that letters were mailed to two of the Veteran's listed addresses and that an attempt to call the Veteran was made with no response. The record also indicates that the Veteran had not received a Supplemental Statement of the Case regarding the issues captioned above as his address had not been updated. See Report of General Information dated in December 2010. Re-examinations will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.327(a) (2010). Under 38 C.F.R. § 3.655(b), if a Veteran does not appear at a scheduled VA examination that is required in order to adjudicate a claim, VA may proceed with the adjudication of the claim. This regulation states, "[w]hen a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied." Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). The March 2009 Board remand determined that additional development was required. In holding with the past determination of the Board, the Veteran should be afforded another VA examination to assess the nature of his service-connected disabilities of the left knee and left ankle and the nature of his nonservice-connected back condition. An additional mental health examination is necessary to determine the Veteran's current psychiatric diagnosis and whether the Veteran's service-connected leg disorders caused or aggravated any psychiatric disorder. 38 C.F.R. § 3.159 (2010). The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include denial of his claims, for failing to so report. See 38 C.F.R. § 3.655 (2010). The Board notes that "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Since an October 2009 report of contact with the VA Mountain Home Medical Center showed that there were different addresses of record for the Veteran in different databases and since the Veteran indicated in December 2010 that his address had not been updated, he should be provided with another opportunity to report for the requested examination. Moreover, the evidence shows that the Veteran has been diagnosed with multiple psychiatric disabilities, including depression. In Clemons the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include depression. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. A review of the record indicates that the Veteran sought treatment at Johnson City Vet Center. An August 2009 contact form showed that a release form was not provided and thus requested records would not be released. Since the claims file is being returned it should be updated to include VA treatment records dating from October 6, 2010, and records from the Johnson City Vet Center. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, the Board notes that in a VA general medical examination report of March 2008 conducted in conjunction with a nonservice-connected pension claim, the examiner opined that the Veteran's service-connected disabilities precluded him from any employment which required standing for more than 10 minutes or walking more than about 100 yards at any time. Accordingly the issue of TDIU has been raised in conjunction with his claims for increased ratings for his service-connected disabilities. However, the issue of TDIU cannot be decided until the issues of entitlement to increased ratings for a left knee injury and left ankle injury are resolved. The Board thus finds the issue of TDIU to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Send to the Veteran's current address (see the December 2010 report of contact) a copy of the November 2010 a Supplemental Statement of the Case for the issues regarding his service-connected residuals of a left knee injury and fracture of the left fibula, service-connected residuals of a left ankle and foreleg injury, entitlement to service connection for a back disorder, and entitlement to service connection for an acquired psychiatric disorder. 2. Associate with the claims file VA medical records dating from October 6, 2010. If no further treatment records exist, the claims file should be documented accordingly. 3. Request records from the Johnson City Vet Center, if the Veteran provides the necessary authorization form. If the records are not ultimately obtained after authorization has been provided, the RO should inform the Veteran in writing pursuant to 38 C.F.R. § 3.159(e). 4. Reschedule the Veteran for the appropriate examination for knee and ankle disorders. Provide the VHA with the Veteran's most recent address of record. See Report of General Information dated December 2010. The report of examination should include a detailed account of all manifestations of the service-connected left knee disability, to include range of motion studies. To the extent that there is any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995), this should be expressed, if possible, in terms of the additional range of motion loss. The examiner should also identify the point at which pain begins. The examiner should also indicate whether there is lateral instability or recurrent subluxation and if so whether it is slight, moderate or severe. The report of examination should include a detailed account of all manifestations of the service-connected left ankle disability. Request that the examiner provide an evaluation of the Veteran's leg length difference. Request that the examiner provide an opinion whether a leg length difference is a residual of the left knee or ankle injuries. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (left knee and left ankle), would prevent him from obtaining and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide a complete rationale for all conclusions reached. 5. Reschedule the Veteran for an appropriate examination regarding his claim for service connection for a back condition. Provide the VHA with the Veteran's most recent address of record. See Report of General Information dated December 2010. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner should provide an opinion as to whether any back disability at least as likely as not (50 percent probability or greater) originated in or is related to active military service. The examiner is additionally requested to opine as to whether it is more likely than not (greater than a 50 percent probability), less likely than not (less than a 50 percent probability), or at least as likely as not (50 percent probability or greater), that the Veteran's back condition is proximately due to, or the result of, his service-connected left knee or left ankle disabilities. If the response is in the negative, is the Veteran's back condition aggravated (i.e., permanently worsened) beyond its natural progression by his service-connected left knee or left ankle disabilities. 6. Reschedule the Veteran for a VA psychiatric examination. Provide the VHA with the Veteran's most recent address of record. See Report of General Information dated December 2010. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner should provide an opinion as to whether any psychiatric disorders at least as likely as not (50 percent probability or greater) originated in service or are related to active military service. The examiner is additionally requested to opine as to whether it is more likely than not (greater than a 50 percent probability), less likely than not (less than a 50 percent probability), or at least as likely as not (50 percent probability or greater), that the Veteran's psychiatric disorders are proximately due to, or the result of, his service-connected left knee or left ankle disabilities. If the response is in the negative, are the Veteran's psychiatric disorders aggravated (i.e., permanently worsened) beyond their natural progression by his service-connected left knee or left ankle disabilities. A complete rationale must be provided for each opinion. 7. The RO should ensure that the above development has been completed in accordance with the above directives and that any other development deemed warranted has been completed. If any examination report is insufficient, it must be returned to the examiner for clarification. Thereafter, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, which includes consideration of § 4.16(b), and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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. 2010). _________________________________________________ S. S. TOTH 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) (2010).