Citation Nr: 1313831 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 99-04 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder or posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis, to include whether the Board has jurisdiction to consider the claim. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from June 1970 to April 1972. The two issues before the Board of Veterans' Appeals (Board) at this time are presented following a complex procedural history. The claims were initially addressed in rating decisions by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. Most recently, the claims addressed in this Decision and Remand were before the Board in May 2011, following the RO's issuance of a May 2010 supplemental statement of the case (SSOC) which addressed 10 issues. In its May 2011 decision, the Board remanded six (6) claims and denied four (4) claims. The Veteran appealed three (3) issues addressed in the May 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court issued the final Memorandum Decision in this case, following reconsideration of a June 2012 Memorandum Decision. The August 2012 Memorandum Decision directs the Board to modify its May 2011 decision as to one issue, and vacates the May 2011 Board decision as to one issue. The claim for service connection for PTSD has been recharacterized as a claim for service connection for an acquired psychiatric disorder, as noted on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran has not been notified that any issue addressed in the Remand portion of the May 2011 Board decision has been certified for return to the Board. Although a SSOC which addressed three of the six remanded claims was issued in June 2012, it is not clear that all steps necessary for return of those issues to the Board have been completed. Accordingly, the Board will not address any issue Remanded in its 2011 decision in this Decision and Remand. The claim for service connection for an acquired psychiatric disorder, to include dysthymic disorder or PTSD, is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The 10 percent initial evaluation assigned for left knee arthritis in an August 2008 Board decision became final in the absence of appeal to the Court, and the RO's issuance of a January 2009 rating decision implementing the 10 percent evaluation did not serve as a jurisdictional basis for appellate review of the 2008 final determination, nor may the communications from the Veteran after the January 2009 rating decision be interpreted as a new claim for a higher rating. CONCLUSION OF LAW The Board lacks jurisdiction to conduct appellate review of the portion of its final August 21, 2008, decision which assigned a 10 percent initial rating for left knee arthritis. 38 U.S.C.A. § 5108, 7104, 7105 (West 2002 & Supp. 2012). REASONS AND BASES FOR FINDING AND CONCLUSION In a Memorandum Decision of August 23, 2012, the Court determined that the Board lacked jurisdiction to address a claim for an increased rating in excess of 10 percent for left knee arthritis. The Court determined that the portion of a March 9, 2011, Board decision which addressed that claim should be modified. This decision effects that modification. The Court explained that the assignment of a 10 percent rating for right knee arthritis was issued in an August 2008 Board decision following appeal of the initial rating assigned for left knee disability. The Board's August 2008 determination that an initial 10 percent rating for arthritis, left knee, but no higher rating, became final, in the absence of an appeal to the Court. The Court noted that the Veteran did appeal some issues addressed in the August 2008 Board decision to the Court. However, the Veteran's appeal addressed only the ratings assigned for left ankle and left hip, but not the left knee, on the merits. The Court stated that its July 2010 Memorandum Decision makes it clear that the 10 percent rating assigned for arthritis, left knee, was not appealed to the Court. The Court stated that, when the RO issued a January 2009 rating decision which implemented the Board's assignment of a 10 percent evaluation for arthritis, left knee, that was an administrative implementation of a final decision, and did not provide a jurisdictional basis allowing review by the RO of the Board of the final decision as to the assigned rating. In this regard, the Board notes that it is well-settled that "[w]here a case is addressed by an appellate court, remanded, then returned to the appellate court, the 'law of the case' doctrine operates to preclude reconsideration of identical issues." See Johnson v. Brown, 7 Vet. App. 25, 26 (1994). In this case, the Board issued an August 2008 decision which granted a 10 percent evaluation, but no higher evaluation, for left knee arthritis disability, and in the absence of an appeal to the Court, that decision became final. The Court noted that the RO was required to issue a January 2009 rating decision in order to effectuate the Board's August 2008 grant of a 10 percent evaluation for left knee arthritis. However, the RO did not have jurisdiction to review the assigned initial 10 percent evaluation. The Court determined that the Veteran's communications did not raise a new claim for an increased rating, and the Board does not have authority to review that determination. Chisem v. Brown, 8 Vet. App. 374, 375 (1995). Accordingly, the Board finds that no basis has been presented which provides jurisdiction for the Board to review its August 21, 2008, decision which assigned a 10 percent initial rating for left knee arthritis, as that decision is final. 38 U.S.C.A. § 5108, 7104, 7105 (West 2002 & Supp. 2012). The appeal for entitlement to an initial rating in excess of 10 percent left knee arthritis must be dismissed, as the Board lacks jurisdiction to conduct appellate review of its August 2008 decision. ORDER The appeal for review of an initial 10 percent evaluation for left knee arthritis assigned in an August 2008 Board decision is dismissed. REMAND VA must liberally construe a claimant's submission, in conjunction with a review of the record, to determine the issues that are raised on appeal. Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Although the Veteran has characterized his claim as a claim for service connection for PTSD, that claim encompasses a claim for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Development of the claim has been focused on PTSD. Additional development which considers a claim for service connection for any psychiatric disorder reasonably raised by the record must be conducted. The Board notes that several claims for service connection are pending. Therefore, the VA examiner who conducts psychiatric examination should also consider whether the Veteran has a psychiatric disorder which is due to or aggravated by any service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the VA examination directed below should be deferred until pending claims for service connection have been adjudicated. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if he currently receives psychiatric treatment or medications for his depression, and, if so, ask him to identify the medical provider(s) who currently prescribe medication for or treat a psychiatric disorder. Afford the Veteran an opportunity to identify past sources of treatment or medications or submit information about medications. Obtain records from each identified provider. 2. Afford the Veteran an opportunity to submit or identify any other clinical or non-clinical (alternative records) that might assist him to substantiate his claim. 3. Ask the Veteran if he has obtained any VA psychiatric treatment. If so, associate those records with the claims file or virtual (electronic) file. 4. Afford the Veteran VA psychiatric examination. The claims folder and a copy of this Remand should be made available to the examiner for review. The examiner should obtain a complete psychiatric history from the Veteran, and review the relevant portions of the claims file, the service treatment records (induction and separation examinations and records of several treatment visits), and the records of VA examination conducted in November 1995 and May 2006. The examiner should also review the Veteran's lay statements as to his experiences in service and the lay statements of the Veteran about the causes of his current psychiatric disorder(s). Any tests or studies deemed necessary for an accurate assessment should be conducted, and the results should be associated with the claims file and discussed in the examination report. The examiner should summarize the evidence reviewed in the examination report. The report should set forth the diagnosis for each psychiatric disorder present. If the examiner's diagnosis(es) differ from the previous opinions as to the appropriate diagnosis(es), the examiner should explain the differences in the assigned diagnosis(es). The examiner should address the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a current psychiatric disorder which (i) was first manifested during the Veteran's service from June 1970 to April 1972, or (iii) results from the Veteran's active service from June 1970 to April 1972, or (iv) results from some incident of the Veteran's active service from June 1970 to April 1972, or (v) was aggravated during the Veteran's active service from June 1970 to April 1972, or (vi) is due to or aggravated by service-connected disability? The examiner should be provided with a list of the Veteran's service-connected disabilities for reference. (b) If it is less than 50 percent likely that the Veteran's current psychiatric disorder(s) is/are etiologically related to his military service, provide an opinion as to the likely onset and etiology of the disorder(s). The reviewer/ examiner must provide a rationale for the opinions. If an opinion cannot be provided without resort to mere speculation, the examiner should indicate this in the examination report and must provide a rationale for such conclusion. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if appropriate. 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. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs