Citation Nr: 1316611 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 05-30 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as anxiety and depression. 2. Entitlement to service connection for plantar fasciitis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 2, 1988 to April 26, 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee and in Indianapolis, Indiana. In November 2005, the Veteran testified during a hearing before a Decision Review Officer at the RO. In June 2008, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. In September 2008, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) for further development. In a May 2012 decision, the Board reopened and denied the claim for service connection for a psychiatric disorder, denied the claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disability, and remanded the claim for service connection for plantar fasciitis for further development. The Board also denied the claims for service connection for right and left shoulder disabilities, rheumatoid arthritis, fibromyalgia, a low back disorder, sleep apnea, a right hip disorder, hypertension and irritable bowel syndrome The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in a September 2012 Order, the Court remanded the claims for service connection for a psychiatric disorder and a TDIU for readjudication consistent with the Motion. The Veteran elected not to pursue an appeal with respect to the other service connection claims and as such the Board's findings as to those issues will not be disturbed. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the Joint Motion for Remand, it was noted that the November 2009 VA examination report, on which the Board relied to conclude that the Veteran's psychiatric disorder was not secondary to her service-connected left hip disability, is inadequate. Upon further review, the Board agrees. In this regard, the examiner only stated that the Veteran did not mention her service-connected left hip disorder when asked about her stressors. The examiner did not specifically provide an opinion on whether the Veteran's psychiatric disorder was caused or aggravated by her service-connected left hip disability. Thus, the Veteran should be afforded another examination to address the above deficiency. With respect to the TDIU, it was simply noted in the Joint Motion for Remand that the issue is inextricably intertwined with the Veteran's claim for service connection for a psychiatric disorder as the underlying facts of the two claims are intimately connected. See Smith v. Gober, 236 F.3d 1370 (2001) (inextricably intertwined claims should be adjudicated together in the interest of judicial economy). Given the assertions noted above, the Board agrees that adjudication of the TDIU claim at this time would be premature. As for the plantar fasciitis, in the remand portion of the May 2012 decision, the Board requested that the Veteran be afforded a foot examination to determine the nature and etiology of any foot disorder found to be present. The examiner was asked to provide an opinion on whether the Veteran's current foot disorder is the result of any incident in service or whether it is proximately due to or has been aggravated by her service-connected left hip disability. The Veteran was afforded an examination in July 2012. The examiner provided adequate opinions on whether the Veteran's plantar fasciitis was incurred in or caused by service, or caused by the service-connected left hip disability. Although the examiner provided an opinion on whether the plantar fasciitis was aggravated by the left hip disability, the examiner's rationale only addressed the causation aspect. The examiner also stated that the plantar fasciitis found in 1999 was not aggravated by the left hip disorder, which appears to limit the time period during which any aggravation may have occurred, which should include any time since the onset of the left hip disability. Thus, the Veteran's claims file should be returned to the examiner for an addendum that addresses the above deficiencies. Further, the AMC has not yet issued a supplemental statement of the case (SSOC) on the issue of entitlement to service connection for plantar fasciitis. Neither the Veteran's temporary file nor her Virtual VA file shows that an SSOC has been issued. Thus, the AMC should ensure that the issue is addressed upon remand. Lastly, any outstanding VA medical records should be obtained. The record contains treatment notes from the Tennessee Valley Health Care System, including the Nashville VA Medical Center (VAMC), dated through April 2010 and the Louisville VAMC dated through May 2010. Thus, any outstanding treatment notes since those times should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding records of treatment from the Tennessee Valley Health Care System, including the Nashville VAMC, since April 2010 and the Louisville VAMC since May 2010. 2. Thereafter, schedule the Veteran for a VA examination to determine whether she has a psychiatric disorder that is secondary to her service-connected left hip disability. Her claims file should be available to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disorder was caused by her service-connected left hip disability. The examiner should also provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disorder has been aggravated beyond natural progression by her service-connected left hip disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Also arrange for the Veteran's claims file to be reviewed by the examiner who completed the July 2012 VA examination to obtain an addendum. If the original examiner is no longer available, another equally qualified examiner should provide the opinions. If an additional examination is necessary to provide the opinions, such examination should be conducted. Specifically, the examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's plantar fasciitis has been aggravated beyond natural progression by her service-connected left hip disability? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided an SSOC and given an opportunity to respond. 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). _________________________________________________ F. JUDGE FLOWERS 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).