Citation Nr: 1322906 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-01 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected right knee disabilities and a right hip disability. 2. Entitlement to an increase in a 30 percent rating for postoperative residuals of a medial and lateral meniscal tear of the right knee. 3. Entitlement to an increase in a 10 percent rating for degenerative joint disease of the right knee. 4. Entitlement to an increase in a 10 percent rating for a right hip disability. 5. Entitlement to an increased (compensable) rating for left ear hearing loss. 6. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to July 1975 and from August 1982 to October 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a psychiatric disorder (listed as depression), to include as secondary to service-connected right knee disabilities and a right hip disability. By this decision, the RO also, in pertinent part, denied an increase in a 30 percent rating for postoperative residuals of a medial and lateral meniscal tear; denied an increase in a 10 percent rating for degenerative joint disease of the right knee; denied an increase in a 10 percent rating for a right hip disability (right hip strain); and denied an increased (compensable) rating for left ear hearing loss. The issues of entitlement to an increase in a 30 percent rating for postoperative residuals of a medial and lateral meniscal tear; entitlement to an increase in a 10 percent rating for degenerative joint disease of the right knee; entitlement to an increase in a 10 percent rating for a right hip disability; and entitlement to an increased (compensable) rating for left ear hearing loss, as well as the issue of entitlement to a TDIU rating, are all addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Any current psychiatric disorder began many years after service, was not caused by any incident of service, and was not caused by or permanently worsened by the Veteran's service-connected right knee disabilities and/or a right hip disability. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include as secondary to service-connected right knee disabilities and a right hip disability, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An October 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R § 3.159(b)(1). The October 2008 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a November 2009 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's available service treatment records and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). Additionally, VA attempted to schedule the Veteran for a VA examination in relation to this claim. However, there is a notation in the record that he failed to report for the examination. See 38 C.F.R. § 3.655; See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the appeal. Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran is service-connected for postoperative residuals of a medial and lateral meniscal tear of the right knee; degenerative joint disease of the right knee; and for right hip strain. Service connection is also in effect for left ear hearing loss and for tinnitus. The Veteran contends that he has a psychiatric disorder that is related to service, or, more specifically, that is related to his service-connected right knee disabilities and a right hip disability. The Veteran served on active duty from June 1975 to July 1975 and from August 1982 to October 1984. The Veteran's service treatment records for his first period of service from June 1975 to July 1975 are not of record. His service treatment records for his second period of service from August 1982 to October 1984 do not specifically show treatment for any diagnosed psychiatric problems, but do show that he reported that he had depression on one occasion. On a medical history form at the time of a March 1984 medical board examination report, the Veteran checked that he had depression or excessive worry. He also checked that he did, and also that he did not, have nervous trouble. The reviewing examiner did not refer to any problems. The March 1984 objective medical board examination report included a notation that the Veteran's psychiatric evaluation was normal. There was also a notation to see a narrative report. An April 1984 narrative summary (report) indicated that the Veteran was on limited duty status and that he was seen for a medical evaluation board because of a disability of the right knee. The diagnosis was a probable retained posterior horn of the medial meniscus with interarticular locking. There was no reference to any psychiatric disorder. The first, and only, post-service evidence of record of any psychiatric disorder is in May 2008. A May 2008 VA treatment entry noted that the Veteran was last seen in December 2006. The Veteran reported that he had neck pain and that he would have occasional numbness in his hands. He also stated that he had pain in his right hip and that he would have more pain on walking. It was noted that the Veteran walked with a cane. The Veteran indicated that he had pain over the back of his right shoulder area and that he had some numbness and tingling of both hands for several years. He maintained that he had joint pains and that he had degenerative joint disease of both knees, with chondromalacia. He stated that he had undergone right knee surgery on two occasions. The assessment was cervical spondylosis; arthritis of the right shoulder; degenerative joint disease of the right hip; hyperlipidemia; and depression. There was a notation that the Veteran indicated that he had felt hopeless about the present or future. The Veteran also reported that he had no thoughts or plans about taking his own life, and that he had never made a suicide attempt. The Veteran was scheduled for a VA psychiatric examination in February 2009 in order to obtain an opinion from a VA examiner as to whether his current complaints of depression were related to his service-connected right knee disabilities and a right hip disability. The Veteran failed to report for the VA psychiatric examination although he did report for a February 2009 VA audiological examination and for a February 2009 VA orthopedic examination. Pursuant to 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be decided based on the evidence of record. Because the Veteran failed to appear for the scheduled VA examination, the claim will be adjudicated based on the evidence of record. The probative medical evidence does not suggest that the Veteran's current psychiatric disorder is related to either period of service. In fact, the probative medical evidence provides negative evidence against this finding, indicating that his current psychiatric disorder began many years after his periods of service, without relationship to any incident of service. There is no actual diagnosis of a psychiatric disorder during the Veteran's periods of service. Significantly, the March 1984 objective medical board examination report specifically included a notation that the Veteran's psychiatric evaluation was normal. The only reference of record to any psychiatric problems subsequent to the Veteran's periods of service is a May 2008 VA treatment entry, more than two decades after the Veteran's periods of service, that related an assessment that included multiple disorders, as well as depression. There is no probative medical evidence indicating that the Veteran's current psychiatric disorder was caused or worsened by his service-connected right knee disabilities and a right hip disability. The Veteran has asserted that his psychiatric disorder had its onset during his period of service, or, that it is related to his service-connected right knee disabilities and right hip disability. The Veteran is competent to report that he felt depressed during service or since service. However, he is not competent to diagnose a claimed psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372; see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). Similarly, the Veteran is not competent to provide a medical nexus, and his lay assertions do not constitute probative evidence as to either a diagnosis or a nexus. A medical opinion from a medical professional has not related any psychiatric disorder to his period of service, or to his service-connected right knee disabilities and right hip disability. The preponderance of the evidence is against the claim of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected right knee disabilities and a right hip disability; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disorder, to include as secondary to service-connected right knee disabilities and a right hip disability, is denied. REMAND The remaining issues on appeal are entitlement to an increase in a 30 percent rating for postoperative residuals of a medial and lateral meniscal tear; entitlement to an increase in a 10 percent rating for degenerative joint disease of the right knee; entitlement to an increase in a 10 percent rating for a right hip disability; entitlement to an increased (compensable) rating for left ear hearing loss; and entitlement to a TDIU rating. The Veteran was last afforded a VA orthopedic examination in February 2009. The diagnoses were status post arthroscopic, partial meniscectomy/debridement, of the right knee; remote meniscus tear of the right knee; and right hip strain. The Veteran was also afforded a VA audiological examination in February 2009. As to diagnoses, the examiner indicated that for the frequencies of 500 to 4000 hertz, the Veteran had a unilateral mixed hearing loss in his left ear. The examiner stated that his hearing at 500 to 3000 Hertz was considered moderate and that his hearing loss at 4000 Hertz was considered as moderately-severe. In a January 2010 VA Form 9, the Veteran essentially indicated that his service-connected right knee disabilities, right hip disability, and left ear had worsened. The Veteran has not been afforded a VA orthopedic examination or a VA audiological examination in over four and a half years. Additionally, the record clearly raises a question as to the current severity of the Veteran's service-connected right knee disabilities, right hip disability, and left ear hearing loss. Further, in a June 2013 informal hearing presentation, the Veteran's representative specifically requested that the Veteran be scheduled for additional VA orthopedic and audiological examinations. A remand is required to afford him VA examinations to assess the current nature, extent and severity of his right knee disabilities, his right hip disability, and his left ear hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Prior to the examinations, any outstanding records of pertinent treatment must be obtained and added to the record. Additionally, a request for a TDIU rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a January 2009 VA Form 9, the Veteran essentially indicated that he was unable to keep a job due to the limitations caused by his service-connected disabilities. The Veteran stated that, although he had a current job, he was told by his employer that he could not remain employed due to his inability to perform his duties in a reasonable amount of time. The Board finds that the record raises the issue of a TDIU rating. The TDIU rating issue must be remanded because the increased rating claims are inextricably intertwined with it and a decision on the TDIU rating claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Finally, the Board finds that the requirements of VA's duty to notify and assist the Veteran have not been met. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not been specifically provided notice regarding entitlement to a TDIU rating. Thus, on remand the RO should provide corrective VCAA notice. Accordingly, the case is REMANDED for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are satisfied with respect to the issue of entitlement to a TDIU rating. 2. Ask the Veteran to identify all medical providers who have treated him for right knee problems, right hip problems, and for left ear hearing problems, since September 2008. Contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder, including VA treatment records since September 2008. 3. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the extent and severity of his service-connected postoperative residuals of a medial and lateral meniscal tear, degenerative joint disease of the right knee, and his right hip disability. The entire claim file (i.e., the paper claim 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 claim file so they can be available to the examiner for review. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected right knee disabilities and his right hip disability must be described in detail. Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran's right knee disabilities and his right hip disability and provide diagnoses of any pathology found. In examining the right knee disabilities and right hip disability, the examiner must document any limitation of motion (in degrees) of the Veteran's right knee and right hip, to include providing the point at which painful motion begins. The examiner must also indicate whether there is any guarding on motion and the degrees at which the guarding starts. The examiner must further comment as to whether (and if so, to what extent, (i.e. slight, moderate, or severe)) the right knee disabilities include recurrent subluxation or lateral instability. The examiner must indicate whether pain or weakness significantly limits functional ability during flare-ups or when the right knee and right hip are used repeatedly over a period of time. The examiner must also determine whether the joints exhibit weakened movement, excess fatigability or incoordination; if feasible, these determinations must be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner must so state. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. In doing so, the examiner must take into consideration the Veteran's level of education, training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 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. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the extent and severity of his service-connected left ear hearing loss. The entire claim file (i.e., the paper claim 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 claim file so they can be available to the examiner for review. All indicated tests, including an audiological evaluation, must be performed. The results must conform to VA regulations governing evaluation of hearing loss. The examiner must fully describe the functional effects of the Veteran's hearing loss disability. 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. Then readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs