Citation Nr: 1315902 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-15 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back strain, to include degenerative joint disease. 2. Entitlement to an initial rating in excess of 30 percent for major depressive disorder. 3. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected low back strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1985 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claims file was subsequently transferred to the RO in Winston-Salem, North Carolina. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeals with the exception of VA treatment records dated through October 2012. In this regard, while there are reports from November 2011 VA genitourinary examinations contained in Virtual VA, they are relevant only to the Veteran's service-connected erectile dysfunction and his claimed abdominal pain, which are not presently before the Board. Moreover, as the Veteran's claims are being remanded, the agency of original jurisdiction (AOJ) will have an opportunity to review the newly associated documents upon readjudication of the Veteran's claims. In an April 2013 Informal Hearing Presentation, the Veteran's representative raised claims for service connection for hypertension, heart disease, gastritis, gastroesophageal reflex disease (GERD), liver disease and encephalopathy. The Board notes that a February 2013 rating decision denied service connection for severe abdominal pain due to bowel condition and determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for idiopathic dilated cardiomyopathy with congestive heart failure. The Veteran is advised that, if he wishes to file a notice of disagreement with such decision, he should so inform the RO in writing. The issues of entitlement to service connection for hypertension, heart disease, gastritis, gastroesophageal reflex disease (GERD), liver disease and encephalopathy have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND With respect to the issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed right knee disorder. The Veteran has alleged that his service-connected low back strain caused his right knee disorder. A June 2007 VA examiner opined that the Veteran's right knee condition was not caused by or the result of his low back condition; however, the examiner did not address aggravation. The Board also notes that the RO considered the Veteran's claim on both a direct and a secondary basis in the January 2008 rating decision and the February 2009 statement of the case. Moreover, the Veteran submitted a treatment record from the Naval Hospital in Portsmouth, Virginia, dated in November 1990 that reflects complaints of intermittent cramping in the right posterior thigh. As such, he should be scheduled for a VA examination to determine the nature and etiology of his claimed right knee disorder, to include consideration of direct service connection and secondary service connection on the basis of aggravation. Regarding the claims for a higher rating for his low back strain and depression, the Board notes that the Veteran was lasted afforded a VA psychiatric examination in June 2007 and a VA spine examination in March 2007. In his March 2009 substantive appeal, the Veteran indicated that such disabilities had worsened in that his back pain radiated into his right leg and he experienced panic attacks multiple times per week. In this regard, the Veteran had denied experiencing panic attacks in his June 2007 VA examination. As the Veteran has described worsening low back and psychiatric symptomatology since the last VA examinations, he should be afforded new VA examinations to determine the current severity of his low back strain and depression, to include an examination of any neurological disorders arising from his low back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Finally, due to the length of time which will elapse on remand, updated VA treatment records dated from November 2007 to the present from the Fayetteville, North Carolina, VA Medical Center (VAMC) that are not already associated with the claims file should be obtained for consideration in the Veteran's appeals. In this regard, while VA treatment records dated through October 2012 were associated with the Veteran's Virtual VA file and reference his disorders on appeal, it is unclear whether they are complete. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated treatment records from the Fayetteville VAMC pertaining to his right knee disorder, depression, and lumbar spine disorder dated from November 2007 to the present that are not already of record. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed right knee disorder. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses of the Veteran's right knee. The examiner should identify all such disorders that have been present at any time since July 2006. (b) For each diagnosed disorder of the right knee, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his in-service complaints of intermittent cramping in the right posterior thigh. (c) Is it at least as likely as not that the Veteran's diagnosed right knee disorder was caused OR aggravated by his service-connected low back strain, to include degenerative joint disease? (d) If arthritis is diagnosed in the right knee, did such manifest to within one year of the Veteran's discharge (i.e., June 1992)? If so, what were the manifestations? The examiner should specifically consider the Veteran's lay statements regarding his right knee, to include his contention that it was caused or aggravated by his low back disability. The rationale for any opinion offered should be provided. 3. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected back disability, including any associated neurological manifestations. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Following a review of the record, the examiner should address the following inquiries: (a) The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any other symptoms during flare-ups and/or with repeated use. (b) The examiner should determine whether there are any neurological manifestations associated with his service-connected back disability. He or she should specifically determine whether the Veteran's right leg complaints are related to his back disability. If the examiner finds that there is neurological manifestations, he or she should indicate the nature and severity, i.e., mild, moderate, or severe, of the impairment. (c) The examiner should state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. This should also be addressed for each year beginning in 2005 to the present. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (d) The examiner should also address the impact that the Veteran's back disability has on his employability, to include whether such renders him unemployable. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 4. After completion of the above development, and after obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected depression. All indicated tests and studies should be undertaken to identify the degree of social and occupational impairment attributable to his depression. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The report of examination should contain a detailed account of the nature and severity of all manifestations of depression, and the impact such has on the Veteran's occupational and social functioning. The examiner should also specifically address the impact that the Veteran's depression has on his employability, to include whether such renders him unemployable. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all of the evidence received since the issuance of the February 2009 statement of the case. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ A. JAEGER 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).