Citation Nr: 1324055 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-20 639A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for anxiety to include as secondary to the service-connected right and left knee disabilities and the service-connected right wrist disability. 2. Entitlement to service connection for depression to include as secondary to the service-connected right and left knee disabilities and the service-connected right wrist disability. 3. Entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease. 4. Entitlement to an evaluation in excess of 20 percent for service-connected left knee strain with patellofemoral syndrome. 5. Entitlement to an evaluation in excess of 10 percent for service-connected right wrist limitation of motion. 6. Entitlement to a compensable evaluation for service-connected residuals of a right fifth finger metacarpal fracture. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, served on active duty from July 1974 to August 1977 and from July 1981 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and April 2006 rating decisions of the RO. In these determinations, the RO denied all of the claims other than that pertaining to the left knee, wherein the Veteran's disability evaluation was increased from 10 to 20 percent, and the TDIU claim, which was not addressed. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in December 2008. A transcript of the hearing is of record. In a November 2010 decision, the Board observed that the RO had not yet dealt with the matter of a TDIU and that as it appeared to have been raised by the record, the Board assumed jurisdiction of the matter. The Board remanded all the issues listed on the title page of this decision for further development in November 2010. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND in the most recent supplemental statement of the case, issued in May 2012, there was an indication that VA treatment records covering the time period from October 2005 to April 30, 2012, had been reviewed in conjunction with the Veteran's claim. A review of the Veteran's claims folder and Virtual VA reveals that the most recent records available for review date back to December 2010. VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612-13 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998); see also 38 C.F.R. § 3.159(c)(2). As such, an attempt should be made to associate with the record all VA treatment records of the Veteran from the Albuquerque VAMC from December 2010 to the present. As it relates to the claims of service connection for anxiety and depression as secondary to the Veteran's service-connected knee and right wrist disorders, the Board notes that under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. The regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was afforded a VA psychiatric examination in November 2005, at which time Axis I diagnoses of depression, NOS, and anxiety, NOS, were rendered. At that time, the examiner noted that the Veteran was saying that these disorders were related to events which occurred in the military but not to his service-connected conditions. The examiner further noted that the Veteran's psychologist was reporting that his depression was related to chronic pain. The examiner stated that due to the continuing discrepancies in the Veteran's case, it was not possible to say that his depression was as likely as not to be related to his service-connected conditions. At the time of his December 2008 hearing, the Veteran testified that at the time of the examination, the examiner led him in the direction of talking about prior events and did not let him discuss the impact his service-connected disabilities had on his depression and anxiety. Treatment records associated with the claims folder following the October 2010 Board remand continue to reveal that the Veteran has been diagnosed with having depression. The Veteran's testimony, and the additional treatment records added to the claims folder subsequent to the VA examination, along with the VA examiner not addressing the issue of whether the Veteran's service-connected disabilities aggravated his depression and anxiety, demonstrate that a new VA examination is warranted to address the issue of secondary service connection for anxiety and depression, to include on the basis of aggravation. Also, as this matter is in remand status, and as the Veteran was last afforded a comprehensive VA examination is December 2010 relating to his service-connected disabilities, more than 2.5 years ago, he should be afforded an additional VA examination to determine the current severity of his knee, right wrist, and right finger disorders. Finally, as the outcome of the Veteran's TDIU claim might be impacted by the outcome of the service connection and increased ratings claims referred to above, the claim for a TDIU rating must also be remanded in accordance with Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all records of the Veteran's treatment from Albuquerque VAMC from December 2010 to the present. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any current anxiety and/or depression. The Veteran's claims file and all other pertinent information must be made available to the examiner and the examiner must note such review in his/her report. All indicated tests and studies should be performed and all findings must be reported in detail. The examiner should indicate what, if any, psychiatric disorders are present. If any psychiatric disorder is found, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder had its onset in service or is otherwise related to service and whether it any service-connected disorder, caused or aggravated (permanently worsened) any current psychiatric disorder, to include anxiety and/or depression. The examiner should provide detailed rationale for these opinions. 3. Schedule the Veteran for a VA orthopedic examination to assess the current severity of his service-connected right knee, left knee, right wrist, and right fifth finger disabilities. The claims folder, and all other patient records, must be made available to the examiner for review in conjunction with the examination. Range of motion measurements should be included. The examiner should identify any objective evidence of pain or functional loss due to pain associated with the service-connected disabilities. The examiner should provide an opinion as to the extent that pain limits the Veteran's functional ability. The examiner should further determine whether, and to what extent, the relevant body parts exhibit weakened movement, excess fatigability, or incoordination. Such inquiry should not be limited to muscles or nerves. As it relates to the knees, the examiner should also indicate the absence or presence of instability or subluxation, and if present, whether it is slight, moderate, or severe in nature. A rationale for all conclusions must be provided. 4. Schedule the Veteran for a VA medical examination for an opinion regarding whether it is at least as likely as not ( 50 percent or greater likelihood) that the Veteran's service-connected disabilities, in and of themselves, prevent him from securing or maintaining substantially gainful employment. The claims folder, and all other patient records, must be made available to the examiner for review in conjunction with the examination. A full rationale for all opinions and conclusions should be provided and a resort to speculation should be avoided. 5. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above development, readjudicate the remaining claims. If the disposition remains unfavorable, furnish the Veteran and his representative with a supplemental statement of the case (SSOC), and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. 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). _________________________________________________ K. J. ALIBRANDO 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).