Citation Nr: 1313532 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 07-19 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral ankle disorder, to include residuals of a fracture of the right tibia. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for bilateral leg weakness as secondary to a back disorder. 5. Entitlement to service connection for a cervical spine disorder. 6. Entitlement to service connection for a testicular disorder, to include sterility and testicular atrophy. 7. Entitlement to service connection for an acquired psychiatric disorder, to include a disorder manifested by memory loss, depression, and adjustment disorder with depressed mood. REPRESENTATION Appellant represented by: James L. Stanton, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to May 1980, and from May 1984 to December 1989, in addition to many years of service in the Iowa National Guard from February 1980 to March 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Des Moines, Iowa. In May 2006, the Veteran testified at a hearing held at the RO before a Decision Review Officer, a transcript of which has been associated with his claims file. In July 2011, the Board remanded the claims to the Appeals Management Center for further development. In addition to the claimed memory loss due to in-service head injuries, the Veteran submitted a March 1998 private treatment record in which he attributed his depression to head injuries. The medical evidence shows an August 2006 diagnosis of depression by a private doctor and a diagnosis of an adjustment disorder with depressed mood by an August 2011 VA examiner. In a March 2008 statement, the appellant noted that his mind raced in all directions and that he takes medication for anxiety issues though the prescription said the medication is for depression. The United States Court of Appeals for Veterans Claims (the Court) has held that VA must consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Veteran's claim is considered a claim of entitlement to service connection for an acquired psychiatric disorder, to include a disorder manifested by memory loss, depression, and adjustment disorder with depressed mood. Likewise, a February 2002 private X-ray finding shows an old well-healed fracture in the distal shaft of the right tibia. Pursuant to Clemons, the Veteran's claim as to a bilateral ankle disorder includes residuals of a fracture of the right tibia. Similarly, the November 2011 VA examination report shows a diagnosis of apparent testicular atrophy. Pursuant to Clemons, the Veteran's claim as to sterility is restated as entitlement to service connection for a testicular disorder, to include sterility and testicular atrophy. In light of the above, the issues are as stated on the title page. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The August 2011 VA non-psychological VA examiner rendered negative medical nexus opinions in part based on no service treatment records showing a falling accident in 1991. Thus, it is unclear if the VA examiner presumed the credibility of the Veteran's report as to the falling accident. This is significant as the Board, found the Veteran's reporting of the falling accident in 1991 credible. Therefore, an addendum to the examination report addressing the relationship between that injury any orthopedic claim for which there is competent medical evidence of a current disorder is necessary, to include whether there is right ankle arthritis in light of Dr. Salocker's reporting of X-ray findings of it in a September 2005 statement and a February 2002 private X-ray finding showing an old well-healed fracture in the distal shaft of the right tibia. The August 2011 VA non-psychological VA examiner diagnosed apparent infertility with apparent testicular atrophy. Physical examination revealed that the testes were atrophic. A July 1990 physical examination report for enlistment in the Army Reserves, which was performed less than a year after separation from the Veteran's last period of active duty, shows an atrophied left testis. An August 1991 private treatment record shows atrophied testes. An addendum to the examination report is necessary to determine whether the infertility is related to the testicular atrophy and if so whether the infertility is related to active service both before and after July 1990, and whether the testicular atrophy is a testicular disorder separate from infertility and if so whether that separate testicular disorder is related to active service both before and after July 1990. Moreover, an addendum to the August 2011 VA mental disorders examination is necessary to explicitly address whether an acquired psychiatric disorder other than a disorder manifested by memory loss is explicitly related to the in-service fever and head injuries. The August 2011 VA mental disorders examiner indicated that he reviewed VA treatment records dated up to January 2011. Similarly, an August 2011 VA non-psychological VA examiner indicated that he reviewed VA treatment records and selectively referred to VA treatment records dated in 2010 and 2011. The RO last obtained complete VA treatment records in November 2009 from the Fort Dodge community-based outpatient clinic. The RO should obtain all VA treatment records from the Fort Dodge community-based outpatient clinic from November 2009 to the present. A May 1997 private treatment record shows that the Veteran reported that two previous semen analyses were done at an Army Hospital many years ago. The service treatment records in the claims file do not contain any semen analyses. The RO should ask the Veteran to identify where these tests were done and if he can identify the hospital, the RO should attempt to obtain copies of these tests. A July 2009 VA treatment record shows that the Veteran's spouse reported that she has documentation showing that in 1988 (during a period of active duty) the appellant was diagnosed as being infertile. The RO should ask the Veteran to provide medical evidence or documentation showing that he was diagnosed as being infertile in 1988. At the May 2006 hearing, the Veteran testified that he underwent fertility testing at the Webster City Medical Center and Iowa City University Hospital. Transcript, pages 4-5. The RO should attempt to obtain records from those facilities. The Veteran has received treatment from Dr. Salocker, D.P.M. The August 2011 VA non-psychological VA examination report reflects that the examiner reviewed a private magnetic resonating imaging (MRI) scan of the lumbar spine done at the Stewart Memorial Community Hospital. The RO should attempt to obtain records from these private medical providers as well as affording the Veteran another opportunity to authorize the release of records from Dr. Sahail. At the May 2006 hearing, the Veteran testified that a surgeon told him that his in-service 1991 fall could have caused all his orthopedic disorders. Transcript, page 7. Pursuant to 38 C.F.R. § 3.103 (2012), the RO should afford the Veteran the opportunity to submit medical evidence showing that he has a bilateral knee disorder and a left ankle disorder, or other orthopedic disorders are related to active service. Finally, the RO last asked the Veteran to identify treatment for the disorders on appeal in October 2007. The RO should ask the appellant to identify all treatment for the disorders on appeal. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran that he may submit competent medical evidence of bilateral knee disorder, a left ankle disorder, and a current disorder manifested by memory loss, and competent medical evidence from a medical professional, such as a surgeon, relating his infertility, any current psychiatric disorder, any current bilateral knee disorder, any current left ankle disorder, his right ankle disorder to include residuals of a fracture of the right tibia and any arthritis, his back disorder, and his cervical spine disorder to active service, to include the 1991 injury from a fall. 2. Ask the Veteran to identify all treatment for his infertility, any current psychiatric disorder, any current bilateral knee disorder, any current left ankle disorder, his right ankle disorder to include residuals of a fracture of the right tibia and any arthritis, his back disorder, and his cervical spine disorder. Obtain all identified records. Obtain all records from Dr. Salocker, D.P.M.; the Stewart Memorial Community Hospital; and Dr. Sahail; and all fertility tests and related treatment records from the Webster City Medical Center and Iowa City University Hospital. Regardless of the Veteran's response, obtain all records from the from the Fort Dodge community-based outpatient clinic from November 2009 to the present. 3. Ask the Veteran to provide medical evidence or other documentation that showing that he was diagnosed as being infertile in 1988. 4. Ask the Veteran to identify the Army hospital where his semen analyses were done and if he can identify the hospital, the RO should contact the service department and attempt to obtain copies of these tests. 5. Afterwards, arrange for the Veteran's claims file to be reviewed by the August 2011 VA non-psychological examiner for preparation of an addendum to the examination report. If that examiner is unavailable, arrange for the claims file to be reviewed by another medical professional. Accepting the Veteran's reported history of falling 14 feet in 1991 as credible, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that any current cervical spine or any back disorder and associated lower extremity disorder were caused or aggravated by his service. Accepting the Veteran's reported history of falling 14 feet in 1991 as credible, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that the residuals of a fracture of the right tibia were caused or aggravated by his service. After a review of the claims file to include any additional medical evidence, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that the Veteran has arthritis of the right ankle and if so, accepting the Veteran's reported history of falling 14 feet in 1991 as credible, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that the right ankle arthritis was caused or aggravated by his service. If the additional medical evidence shows a current disorder in either knee, a left ankle disorder or a right ankle disorder other than residuals of a fracture of the right tibia and arthritis, accepting the Veteran's reported history of falling 14 feet in 1991 as credible, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that any such knee or ankle disorder was caused or aggravated by his service. The August 2011 VA examiner should render an opinion on whether it is at least as likely as not that the left atrophied testis noted on the July 1990 physical examination is related to the current infertility, and if so it is at least as likely as not that the infertility was caused or aggravated by the Veteran's service prior to July 1990 and it is at least as likely as not that the infertility was aggravated by the Veteran's service after July 1990. If the examiner finds that the left atrophied testis noted on the July 1990 physical examination is not related to the current infertility, the examiner should render an opinion on whether the Veteran has a testicular disability separate from infertility that is manifested by atrophic testes, and if so this non-infertility testicular disorder was caused or aggravated by the Veteran's service prior to July 1990 and it is at least as likely as not that the this non-infertility testicular disorder was aggravated by the Veteran's service after July 1990. The VA examiner should provide a comprehensive addendum including a complete rationale for all opinions and conclusions. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. 6. Arrange for the Veteran's claims file to be reviewed by the August 2011 VA psychological examiner for preparation of an addendum to the examination report. If that examiner is unavailable, arrange for the claims file to be reviewed by another medical professional. After a review of the claims file to include any additional medical evidence, the August 2011 examiner should render an opinion as to whether it is at least as likely as not that any depressive disorder that the Veteran has had since August 2003, the adjustment disorder diagnosed at the August 2011 VA examination, and any other current acquired psychiatric disorder are related to the Veteran's service, including his reported history of a high fever with oral lesions around November 1985 or 1986 (as reported as 1989 apparently in error). Also, please address the relationship, if any, between any depressive disorder that the Veteran has had since August 2003, the adjustment disorder diagnosed at the August 2011 VA examination, and any other current acquired psychiatric disorder and the Veteran's history of head trauma in service in March 1981 and April 1989. In particular, please render an opinion as to whether it is at least as likely as not that any depressive disorder that the Veteran has had since August 2003, the adjustment disorder diagnosed at the August 2011 VA examination, and any other current acquired psychiatric disorder were caused or aggravated by any incident of service. If the August 2011 VA examiner or other medical professional thinks another examination is necessary to address these matters, then schedule the Veteran for another examination. If the additional medical evidence shows competent medical evidence of a memory loss disability, the examiner should render an opinion as to whether it is at least as likely as not that any memory loss disability is related to the Veteran's service, including his reported history of a high fever with oral lesions around November 1985 or 1986 (as reported as 1989 apparently in error). Also, please address the relationship, if any, between any memory loss disability and the Veteran's history of head trauma in service in March 1981 and April 1989. In particular, please render an opinion as to whether it is at least as likely as not that any memory loss disability was caused or aggravated by any incident of service. The VA examiner should provide a comprehensive addendum including a complete rationale for all opinions and conclusions. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. 7. Review the addendums to the examination reports and if applicable the mental disorders examination report. If any addendum or report is deficient in any manner, implement corrective procedures at once. 8. Then, readjudicate the Veteran's claims. If any of the claims remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his counsel have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant 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 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. 2012). _________________________________________________ MICHAEL LANE 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) (2012).