Citation Nr: 1317824 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 03-09 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for arthritis of the left knee, including as due to a service-connected right knee disability. 2. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression, including as due to a service-connected mega colon with chronic constipation. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from June 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied, in pertinent part, the Veteran's claims of service connection for arthritis of the left knee, including as due to a service-connected right knee disability, and for an acquired psychiatric disability other than PTSD, to include depression, including as due to a service-connected mega colon with chronic constipation. A Central Office Board hearing was held in June 2003 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. After the Veterans Law Judge who held the hearing subsequently retired from the Board, the Veteran was advised in May 2012 correspondence from the Board that he could requested another hearing before a different Veterans Law Judge. The Veteran declined another Board hearing in July 2012. See 38 U.S.C.A. § 7107; 38 C.F.R. §§ 20.707, 20.717. In May 2004, April 2006, and in July 2008, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In June 2010, the Board denied the Veteran's claims. He timely appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 decision, the Court vacated and remanded the Board's June 2010 decision. In August 2011 the Board once again remanded the issues on appeal for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran is seeking service connection for arthritis of the left knee and for an acquired psychiatric disability other than PTSD on both direct and secondary service connection basis. As noted in the August 2012 remand, the Board denied service connection in June 2010 and the Veteran appealed to the Court; in December 2011 the Court vacated the June 2010 decision and remanded back to the Board. In August 2012 the Board then remanded in order to obtain any Social Security Administration (SSA) records; in a January 2013 Formal Finding of Unavailability Memorandum the AMC documented all steps taken to obtain SSA records and determined that all efforts to obtain the records have been exhausted. Thus, the Board finds that to that extent the August 2012 remand development has been completed, no further action to ensure compliance with that remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also remanded in order for the Veteran to be afforded VA examinations for his claims of entitlement to service connection for arthritis of the left knee and for an acquired psychiatric disability other than PTSD on both direct and secondary service connection basis. Based on the discussion herein below, the AOJ did not accomplish the objectives set forth in the August 2012 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Thus, the Board finds that a remand is necessary to comply with the August 2012 Board remand. For the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include depression, the RO was directed to schedule the Veteran for a VA examination to determine the Veteran's current psychiatric diagnoses and to determine if any psychiatric disability was at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service. The VA examiner was also directed to opine whether it is at least as likely as not that a service-connected disability caused or aggravated (permanently worsened) any acquired psychiatric disability other than PTSD, to include depression. The examiner was advised that service connection currently is in effect for fecal incontinence associated with hemorrhoids, mega colon with chronic constipation, irritable bowel syndrome, chondromalacia patella of the right knee, and hemorrhoids. The examiner was specifically directed to address the clinical significance, if any, of the notation on the Veteran's separation physical examination in May 1967 that "depression and worry refers to being worried about constipation" and whether this indicates that the Veteran's in-service chronic constipation caused or aggravated (permanently worsened) his acquired psychiatric disability other than PTSD, to include depression. The Veteran was scheduled for a VA examination in December 2012. The VA examiner reviewed the Veteran's medical history and stated that the Veteran has a history of depressive symptoms that reportedly began shortly after discharge from the military and that he has been treated on and off since that time. The VA examiner than opined that the Veteran's "diagnosed depressive disorder was not caused by military service." The Board finds that the December 2012 VA examination does not comply with the August 2012 Board remand because the VA examiner did not address the Veteran's psychiatric disability on a secondary service connection basis nor did she discuss the May 1967 separation physical examination. Thus, the Board finds that the Veteran's claims file should be sent to the December 2012 VA examiner to render an addendum opinion on a secondary service connection basis. If the December 2012 VA examiner is not available it must be stated and the Veteran must be scheduled for a new VA examination. For the Veteran's claim of entitlement to service connection for arthritis of the left knee the August 2012 remand directed for the Veteran to be scheduled for a VA examination to determine the nature and etiology of his arthritis of the left knee, including as due to a service-connected disability. The VA examiner was asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that arthritis of the left knee is related to active service or any incident of service. The VA examiner was also directed to opine whether it was at least as likely as not that a service-connected disability caused or aggravated (permanently worsened) the Veteran's arthritis of the left knee. The VA examiner was directed to specifically address the clinical significance, if any, of an October 1964 x-ray finding of an abnormal left femoral shaft, and whether this demonstrates that the Veteran's arthritis of the left knee was caused or aggravated (permanently worsened) by his right knee disability. The Veteran was afforded a VA examination in December 2012 and the VA examiner stated that it was less likely than not that the Veteran's arthritis of the left knee was related to active service or any incident. He stated that the Veteran only had minimal degenerative changes in the knee and there was essentially no arthritis on the x-ray studies. It was noted that minimal degenerative changes in the knee were very common in the general population. It was also noted that the Veteran was not diagnosed with any specific bony condition following his injury and it did not require surgery; thus, it was more likely that his knee condition is naturally occurring and not post traumatic. The Board finds that the December 2012 VA examination does not comply with the August 2012 Board remand because the VA examiner did not address the Veteran's arthritis of the left knee on a secondary service connection basis nor did he discuss the October 1964 x-ray finding of an abnormal left femoral shaft. Thus, the Board finds that the Veteran's claims file should be sent to the December 2012 VA examiner to render an addendum opinion on a secondary service connection basis. If the December 2012 VA examiner is not available it must be stated that the Veteran must be scheduled for a new VA examination. If the December 2012 VA examiner is not available it must be stated and the Veteran must be scheduled for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Update VA medical treatment records and associate them with the claims folder. 2. Return the claims file, to include a copy of this remand, to the VA examiner who conducted the December 2012 VA examination in order to provide an additional addendum opinion. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should indicate in the report that the claims file was reviewed. The VA examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's psychiatric disability diagnosed as depression is caused by or aggravated (permanently worsened) by any service-connected disability (fecal incontinence associated with hemorrhoids, mega colon with chronic constipation, irritable bowel syndrome, chondromalacia patella of the right knee, and hemorrhoids). The VA examiner specifically must address the clinical significance, if any, of the notation on the Veteran's separation physical examination in May 1967 that "depression and worry refers to being worried about constipation." Also, she must address whether this indicates that the Veteran's in-service chronic constipation caused or aggravated (permanently worsened) his acquired psychiatric disability. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. If the December 2012 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain such an opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 3. Return the claims file, to include a copy of this remand, to the VA examiner who conducted the December 2012 VA knee and lower leg conditions examination in order to provide an additional addendum opinion. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should indicate in the report that the claims file was reviewed. The VA examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee arthritis disability is caused by, or aggravated (permanently worsened) by any service-connected disability (fecal incontinence associated with hemorrhoids, mega colon with chronic constipation, irritable bowel syndrome, chondromalacia patella of the right knee, and hemorrhoids). The examiner specifically must address the clinical significance, if any, of an October 1964 x-ray finding of an abnormal left femoral shaft and whether this demonstrates that the Veteran's arthritis of the left knee was caused or aggravated (permanently worsened) by his right knee disability. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. If the December 2012 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain such an opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 4. Then, after any other indicated development is completed, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. 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). _________________________________________________ MARJORIE A. AUER 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).