Citation Nr: 1307005 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-17 247A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for a mood disorder. 2. Entitlement to a rating higher than 20 percent for degenerative arthritis of the lumbar spine, status post laminectomy. 3. Entitlement to a rating higher than 10 percent for degenerative arthritis of the right knee. 4. Entitlement to an initial rating higher than 10 percent for lateral instability of the right knee. 5. Entitlement to a rating higher than 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1995 to October 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions in September 2006, November 2007, and May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2006 rating decision, the RO denied a rating higher than 20 percent for degenerative arthritis of the lumbar spine, status post laminectomy; denied a rating higher than 10 percent for degenerative arthritis of the right knee; and granted a 10 percent rating for lateral instability of the right knee, effective in July 2006. The Veteran's notice of disagreement with the rating decision was received in October 2006, and the RO issued a statement of the case in May 2007. The Veteran perfected his appeal to the Board with the filing of a substantive appeal in June 2007. In the November 2007 rating decision, the RO granted service connection for a mood disorder and assigned a 30 percent rating, effective in December 2006. The Veteran's notice of disagreement with the rating decision was received in February 2008, and the RO issued a statement of the case in March 2008. The Veteran perfected his appeal to the Board with the filing of a substantive appeal in March 2008. In the May 2009 rating decision, the RO denied a rating higher than 10 percent for a left knee disability. The Veteran's notice of disagreement with the rating decision was received in December 2009, and the RO issued a statement of the case in September 2010. The Veteran perfected his appeal to the Board with the timely filing of a substantive appeal in November 2010, although it appears that the RO did not acknowledge that the receipt of the Veteran's VA Form 9 at that time was in reference to the left knee. It is noted that the Veteran had perfected an appeal to the Board in regard to the claim for a rating higher than 10 percent for a right foot injury with pes planus, which was denied by the RO in the September 2006 rating decision. However, in a statement that was received by the RO in December 2009, prior to the issue being certified to the Board for appellate consideration, the Veteran withdrew his claim. 38 C.F.R. §§ 20.202, 20.204. Therefore, the Board does not have jurisdiction to review that issue. In a January 2012 statement, the Veteran withdrew his request for a personal hearing before a Veterans Law Judge. The issue concerning bilateral pes planus (i.e., a higher rating for right foot pes planus and service connection for left foot pes planus) was raised by the Veteran in a July 2008 statement but has not been adjudicated by the RO. In a September 2012 deferred rating decision, the RO acknowledged that it had "missed" the issue following the Veteran's withdrawal of his right foot claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND Additional VA treatment records were obtained in September 2012 and associated with the Veteran's claims files via the Virtual VA system (i.e., uploaded to the electronic version of his claims files). A review of these records, which are dated from April 1999 to September 2012, discloses that the Veteran received treatment for his knees, lumbar spine, and mood disorder. The RO has not considered this evidence in relation to the Veteran's claims, and the Veteran has not waived his right to have the RO initially consider the evidence, in accordance with 38 C.F.R. § 20.1304. Moreover, the treatment records added to the file suggest that the Veteran's disabilities on appeal have worsened. In fact, in a statement received by the RO in September 2009, the Veteran's representative asserted that the Veteran wished his lumbar spine disability was re-evaluated because it had increased in severity since his last VA examination. The additional treatment records show, in part, that the Veteran was seen on various occasions in 2012 in the mental health clinic, where he was assigned Global Assessment of Functioning scale scores that were less than the score assigned during his last VA examination in October 2007 (when it was 70), which is suggestive of worsening symptoms. Also, in March 2012, the Veteran underwent right knee surgery (lateral meniscectomy), followed by physical therapy for painful range of motion, and in August 2012 he was seen in the emergency room for a sudden onset of worsening low back pain. This evidence suggests worsening of his knee and low back conditions since the last VA orthopedic examination was conducted in May 2008. Given that the evidence suggests a material change in the Veteran's conditions and the VA's duty to assist the Veteran in obtaining evidence adequate to decide the claims, additional examinations are warranted. 38 C.F.R. §§ 3.159(c)(4), 3.327. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to determine the current level of severity of the service-connected mood disorder. The Veteran's claims files must be made available to the examiner for review. The examiner should provide accurate and fully descriptive assessments of all psychiatric symptoms, and should comment upon the frequency or severity of the Veteran's mood disorder symptoms. The examiner should also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning (GAF) scale score. 2. Afford the Veteran a VA orthopedic and neurological examination to determine the current level of severity of the service-connected lumbar spine and right and left knee disabilities. The Veteran's claims files must be made available to the examiner for review. All necessary tests and studies should be accomplished. All clinical findings in regard to evaluating the Veteran's back and bilateral knee disabilities in accordance with applicable rating criteria, should be set forth in the report. Regarding the lumbar spine examination, the examiner is asked to describe: (a). Range of motion in degrees of flexion of the lumbar spine, and any additional functional loss (in degrees) due to pain, painful movement, weakened movement, fatigue, or repetitive movement of the lumbar segments of the spine; (b). Any associated neurologic abnormalities, including any signs and symptoms of radiculopathy in each of the lower extremities (please identify any affected nerve(s) and the degree of impairment of the nerve(s) in terms of whether it is mild, moderate, moderately severe, or severe); and (c). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes. Regarding the right and left knee examination, the examiner is asked to describe: a). Range of flexion and extension in degrees for the knees, and any additional functional loss (in degrees) due to pain, painful movement, weakened movement, fatigue, or repetitive movement. Additional limitation of motion during flare-ups and following repetitive use should also be noted. b). Any recurrent subluxation or lateral instability, including whether it is characterized as slight, moderate, or severe; and c). Any symptoms associated with cartilage impairment that is related to the knee disabilities, including whether there are frequent episodes of "locking," pain, and effusion into the knee joints. 3. Thereafter, readjudicate the claims currently on appeal, to include consideration of the additional evidence added to the claims files (both paper and electronic versions) since the June 2009 supplemental statement of the case and the September 2010 statement of the case. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate time period within which to respond. The case should then be returned to the Board for 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).