Citation Nr: 1315307 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-42 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. The propriety of the reduction of the evaluation of arthritis of the left knee from 30 percent disabling to 10 percent disabling, effective March 1, 2010. 3. The propriety of the reduction of the evaluation of arthritis of the right knee from 30 percent disabling to 10 percent disabling, effective March 1, 2010. 4. Entitlement to an evaluation in excess of 30 percent for left knee arthritis. 5. Entitlement to an evaluation in excess of 30 percent for right knee arthritis. 6. Entitlement to an evaluation in excess of 20 percent for left knee instability. 7. Entitlement to an evaluation in excess of 20 percent for right knee instability. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from August 20, 1970 to September 30, 1970; February 1973 to February 1976; and from November 1990 to January 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2009, December 2009, and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the service connection issue certified to the Board was for PTSD, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. The December 2009 rating decision in which the evaluations for the knee arthritis were reduced reflects that separate 10 percent evaluations were assigned for right knee and left knee instability. In a September 2010 rating decision, the evaluations for right and left knee instability were increased to 20 percent. VA has a " well-established " duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The 30 percent ratings for right and left knee arthritis are being restored in this decision and, accordingly, the issues of higher ratings for right and left knee instability and right and left knee arthritis are part and parcel of the appeal. | TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The July 2010 VA examination report notes the Veteran is not employed due to his service-connected knee disabilities. As the record raises the issue of entitlement to a TDIU the TDIU claim is part of his pending increased rating claims, as reflected above. The issue of service connection for PTSD, along with the increased rating claims for left and right knee arthritis and instability, to include a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evaluation of arthritis in the left knee was increased to 30 percent on the basis of the presence of severe arthritis. 2. The evaluation of arthritis in the right knee was increased to 30 percent on the basis of the presence of severe arthritis. 3. The evidence at the time of the reduction of the Veteran's evaluation of his right and left knee arthritis continued to show severe arthritis. CONCLUSIONS OF LAW 1. The requirements for restoration of a 30 percent evaluation for the Veteran's left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.344, 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Codes 5010-5262 (2012). 2. The requirements for restoration of a 30 percent evaluation for the Veteran's right knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.344, 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Codes 5010-5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board restores the 30 percent evaluation for the Veteran's left knee arthritis and the 30 percent evaluation for right knee arthritis, effective the date of the reduction, which represents a complete grant of his challenge to the reduction in the evaluation of these disabilities. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 5 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 5 Vet. App. at 420-42. In an April 2001 rating decision, the Veteran was granted a 30 percent disability evaluation for left knee arthritis and a 30 percent evaluation for right knee arthritis. The January 2001 VA examination report showed left knee arthritis and postoperative lateral meniscus surgery with severe degenerative joint disease with joint narrowing and osteophytes with old Osgood-Schlatter's disease and loose body. Severe degenerative joint disease of the right knee with effusion and joint narrowing was reported. Severe crepitus in both knees and a requirement for knee braces was noted. The disabilities were rated as analogous to the malunion of the tibia and fibular with marked knee disability under Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In a September 2009 rating decision, the RO proposed to reduce the Veteran's disability evaluation of 30 percent to 10 percent for arthritis of each knee based primarily on the findings with respect to flexion and extension of the knees reported in an August 2009 VA examination report. The December 2009 rating decision reflects that the 30 percent rating for each knee was reduced to a 10 percent rating for each knee, under Diagnostic Code 5010-5261. The effective date of the reduction was March 1, 2010. The record does not establish that the rating reduction was warranted. The Veteran was granted entitlement to a disability evaluation of 30 percent for arthritis for each knee based upon severe arthritis of the right and left knee. X-ray examination in November 2009 was noted to show severe bilateral osteoarthritis, and 'windswept knees' with loose bodies. Although there may have been improvement, the evidence does not make it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). Rather, the November 2009 VA examiner, in a December 2009 addendum, unequivocally stated that the Veteran's knees had not improved and that his overall disability from his knees had worsened. As the Veteran continued to experience severe knee arthritis at the time of the reduction, the indicated basis for the original grant, the Board finds that improvement in knee arthritis was not shown. Therefore, the reduction was improper and restoration of a 30 percent evaluation for each knee is granted. ORDER Reduction of a 30 percent disability evaluation for arthritis of the left knee was not proper, and restoration of the benefit is granted, effective March 1, 2010. Reduction of a 30 percent disability evaluation for the arthritis of the right knee was not proper, and restoration of the benefit is granted, effective March 1, 2010. REMAND The Veteran asserts entitlement to service connection for PTSD. The evidence is inadequate for a determination. First, with respect to dates of service, the May 2012 VA examination report also notes the Veteran served for 12 months in 1970, and the RO's May 2012 examination request notes the Veteran "serve[d] in Saudi Arabia in 11-90 for 179 days," and "served in a location that would involve 'hostile military or terrorist activity.'" The Veteran's DD Form 214, however, reflects 1 month and 11 days of service from August 20, 1970 to September 30, 1970 and no foreign and/or sea service is indicated. Next, the May 2012 report of examination notes the diagnosis of PTSD in an "8/20/09" private report was made by an "MA-level psychology associate practitioner" and without enough military trauma-related historical information to substantiate the presence of PTSD. A private record dated "8/20/09" reflecting a diagnosis of PTSD is not of record. However, both the August 20, 2008 and May 1, 2009 private reports in which PTSD is diagnosed are co-signed by a PhD. The private records reflect an Axis I diagnosis of PTSD based on exposure to deaths and injuries of comrades during service as a medic. The August 2008 report notes that, after service entrance in 1973, the Veteran worked at a dispensary in Germany and saw many injuries due to tank accidents; felt haunted by the crushed face of a soldier who fell off a 2-story building and who he was unable to revive; and after a stint driving an ambulance, was transferred to a General Hospital where he worked in the emergency room. The examiner determined that the Veteran met the criteria for a diagnosis of PTSD based on his experiences as a medic during service, according to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV). Depressive disorder secondary to his service-connected left knee disability was noted to be manifested by depressed mood, anhedonia, lethargy, mood swings, and irritability. The May 2012 VA examiner determined that, although the Veteran does not meet the criteria for an Axis I diagnosis, including PTSD, he does meet the diagnostic criteria for schizotypal personality disorder. It was noted that the diagnosis is consistent with his symptoms and history, to include having been discharged from service in 1970 for a defective attitude, and more than likely to have existed prior to service entrance. Although congenital or developmental defects such as personality disorders are not "diseases" or "injuries" within the meaning of applicable legislation, disability resulting from a mental disorder that is superimposed upon a personality disorder during service may be service-connected. 38 C.F.R. § 4.127. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). With the respect to the knees, the Veteran asserts that the degree of impairment due to his service-connected knee disabilities is worse. Based on the Veteran's assertion that his knee arthritis is worse than when last examined in May 2012 and the evidence of record, the Veteran must be afforded an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his bilateral knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The pending claims on appeal are inextricably intertwined with the issue of entitlement to a TDIU. As such, these issues must be considered together, and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. 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); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: 1. Determine the actual dates of the period of service beginning in August 1970, including whether the Veteran had foreign service and, if so, where and for what period. 2. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder, to include PTSD, had its onset during any period of active service or within the initial year of separation from any period of active service, or is otherwise related to related to service or service-connected knee disabilities. If answered in the negative, the examiner is to provide an opinion as to whether there is disability resulting from a mental disorder superimposed upon a personality disorder. If the Veteran is diagnosed with any psychiatric disorder, the examiner is to provide an opinion as to whether such adversely impacts on his ability to secure or follow a substantially gainful occupation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA knee examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to describe the current severity and extent of all manifestations of the Veteran's service-connected right and left knee arthritis and right and left knee instability. All required testing must be performed, including range of motion measurements; repetition of range of motion with commentary regarding any functional loss due to pain, weakness, or other symptoms; and stability testing. The examiner must opine as to whether it is at least as likely as not that the right or left knee disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected knee disabilities do not render him unemployable, the examiner must identify the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim for service connection for a psychiatric disorder. Then, adjudicate the remainder of the claims on appeal, to include TDIU. If any of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs