Citation Nr: 1320328 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 08-30 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a right knee disability, claimed as right knee pain. 2. Entitlement to service connection for a left knee disability, claimed as arthritis (degenerative joint disease) of the left knee with accompanying pain. 3. Entitlement to service connection for a disability characterized by upper and/or low back pain. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or psychosis. 5. Entitlement to service connection for a heart condition/disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from September 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran provided testimony at a Travel Board hearing before the undersigned in Salt Lake City, Utah, in October 2009; a transcript of that hearing is of record. In December 2009 and May 2012, the Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development. 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 The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Moreover, the Court has held that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Pursuant to the Board's May 2012 remand instructions, a VA orthopedic examination was conducted in July 2012. Although the VA examination was conducted, the Board finds that the associated medical opinion did not substantially comply with the May 2012 remand instructions and is not completely adequate for deciding the claims for service connection for back, left knee, and right knee disabilities. See Barr, 21 Vet. App. at 311-12; Stegall, 11 Vet. App. at 271. Significantly, the VA examiner indicated that he was unable to locate in the claims folder the August 2005 letter from the Veteran's treating physician Dr. Y.A. In that letter, Dr. Y.A. linked the Veteran's physical problems to wrestling that he participated in during military service. The May 2012 remand instructions specifically requested the examiner to address the August 2005 letter when forming an opinion. The letter is marked with a green evidence tab in the claims folder. Thus, the claims must be remanded for an addendum opinion that takes Dr. Y.A.'s August 2005 letter into account. With respect to the claim of service connection for a psychiatric disorder, the March 2010 VA examiner provided an Axis I diagnosis of delusional disorder, persecutory type. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. A June 2012 VA examination also found that the Veteran did not meet the criteria for a diagnosis of PTSD. Although these VA examiners did not provide a diagnosis of PTSD, VA treatment records of record show that the Veteran receives treatment for PTSD. In a statement received in March 2012 the Veteran indicated that his claim for PTSD was based on a personal assault in service. The Board notes that if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA has a heightened burden of notification when a veteran claims service connection for PTSD based upon personal assault. Gallegos v. Peake, 22 Vet. App. 329 (2008). Thus, the Board finds that the AOJ must send the Veteran the appropriate VCAA notice that deals with PTSD based upon alleged in-service physical assault. For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. Id.; Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). See also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1, 2006). Therefore, after updating the claims file with any pertinent information from the Veteran and VA treatment facilities, the Veteran should be scheduled for a VA examination to determine whether there were behavioral changes or other indications of the Veteran being subjected to physical trauma in-service and to determine the etiology of any current psychiatric disorder(s) to include PTSD. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In regards to the claim of service connection for a heart condition, the February 2010 VA examiner provided a diagnosis of idiopathic cardiomyopathy. The examiner gave the opinion that it is not at least as likely as not that the Veteran's disability is related to or caused by any injuries or other diagnoses in service. Although the opinion properly addressed the possibility of service incurrence, the Veteran contends that his heart condition may be a result of his other claimed disabilities. Thus, the theory of secondary service connection has been raised. Service connection for cervicalgia with intervertebral disc syndrome, and for radiculopathy of the upper extremities, was granted in a March 2013 rating decision. Another VA examination regarding the heart is necessary given that grant of service connection (and any further grant of service connection resulting from the above development). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Send an updated VCAA notice letter specifically notifying the Veteran of the evidence yet needed to substantiate his service connection claim for an acquired psychiatric disorder, including PTSD, claimed as due to in-service personal assault, and of what part of such evidence he should obtain, and what part the AOJ will attempt to obtain on his behalf, including VA records. Such letter should notify the Veteran that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 2. Thereafter, schedule the Veteran for a VA psychiatric examination to determine whether there were behavioral changes or other indications of the Veteran being subjected to physical trauma in-service. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. The examiner must be advised that actual corroboration of the claimed physical assaults (e.g., by way of contemporaneous police reports, military disciplinary proceedings, etc.) is not dispositive as to the question of whether the assault(s) occurred. The Board is requesting that the examiner opine as to whether he or she believes that the Veteran sustained one or more physical assault(s) as he has alleged, even without corroboration of record. Psychological testing should be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. The examiner should review the test results, examine the Veteran, and provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD. The examiner should list all of the Veteran's psychiatric disabilities in accordance with DSM-IV. If PTSD is diagnosed, the examiner should identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's stressor(s). In addition to an opinion regarding PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any other psychiatric disability that is related to his active military service or to a service-connected disability. The examiner should specifically determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently diagnosed psychiatric disorder(s) are etiologically related to any incident(s) of the Veteran's active duty service, to include his reports of physical assaults during service. The VA examiner is requested to provide a thorough rationale for any opinion provided. 3. Return the claims folder to the VA physician who conducted the July 2012 orthopedic examination of the Veteran. The examiner should provide an addendum opinion, after review of the August 2005 letter from Dr. Y.A. (marked with a green tab in the claims folder) as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a current back, right knee, and/or left disability that is related to his active military service, including as the result of any wrestling activity or the July 1955 treatment for backache. In providing an opinion, the examiner must specifically address the August 2005 letter from Dr. Y.A. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. After adjudicating the claims for service connection for right knee, left knee, back, and psychiatric disabilities following the above development, schedule the Veteran for a VA examination in order to ascertain the nature and etiology of the Veteran's claimed heart condition and its relationship, if any, to his service-connected cervicalgia with intervertebral disc syndrome and radiculopathy of the upper extremities (and any other disability for which service connection may be granted pursuant to the above development). Following a review of the claims folder, the clinical evaluation and any tests that are deemed necessary, the examiner is to address the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed heart condition had its onset in or is otherwise attributable to service? (b) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed heart condition hypertension was caused by his service-connected cervicalgia with intervertebral disc syndrome and radiculopathy of the upper extremities (and any other disability for which service connection may be granted pursuant to the above development)? (c) Is it at least as likely as not that the Veteran's service-connected cervicalgia with intervertebral disc syndrome and radiculopathy of the upper extremities (and any other disability for which service connection may be granted pursuant to the above development) aggravates any currently diagnosed heart condition? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of heart disability present (i.e., a baseline) before the onset of the aggravation. 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). 5. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ C. CRAWFORD 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).