Citation Nr: 1325107 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 04-31 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected right knee disabilities. 2. Entitlement to an increased rating in excess of 20 percent for service-connected right knee chondromalacia patella. 3. Entitlement to an initial rating in excess of 20 percent for service-connected right knee degenerative joint disease. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran and his spouse testified at a July 2007 Travel Board hearing before a Veterans Law Judge. A transcript of that proceeding is of record and has been associated with the claims file. The issue of entitlement to service connection for an acquired psychiatric disorder was previously characterized as entitlement to service connection for chronic depression. The United States Court of Appeals for Veterans Claims (Court) has held that such claims encompass claims of entitlement to service connection for all psychiatric disabilities. Clemmons v. Shinseki, 23 Vet. App. 1, 5 (2009). In November 2009, the Board declined to reopen the claim of service connection for chronic depression and denied increased ratings for the service-connected right knee disabilities. The Veteran appealed the Board's decision to the Court. By order dated January 2010, the Court granted a Joint Motion for Remand (JMR), vacated the November 2009 Board decision, and remanded the case for compliance with the terms of the JMR. In April 2010, the Board remanded the case for further development, as well as remanded the issue of TDIU. The case was returned to the Board and in June 2012, the Board denied service connection for an acquired psychiatric disorder, to include as secondary to service-connected right knee disabilities, denied a higher rating for the service-connected right knee chondromalacia patella, increased the evaluation for service-connected right knee degenerative joint disease to 20 percent effective November 2, 2002, and remanded the issue of TDIU. The Veteran appealed the Board's decision to the Court. By order dated May 2013, the Court granted a JMR, vacated the June 2012 Board decision for the issues of service connection and higher ratings, and remanded the case for compliance with the terms of the JMR. With regard to the claim for TDIU, the requested development has been completed and no further action is necessary to comply with the Board's June 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the May 2013 JMR, the parties agreed that the Board, in pertinent part, erred by relying upon inadequate Veterans Health Administration (VHA) medical opinion regarding service connection for an acquired psychiatric disorder, to include as secondary to service-connected right knee disabilities. The parties also agreed that the Board erred by relying upon inadequate VA examination reports for the higher rating claims for service-connected right knee disabilities. To ensure compliance with the JMR, additional development is necessary under the duty to assist. 38 C.F.R. § 3.159(c)(4). Since the Veteran's claims, as stated above, are being remanded and because adjudication of these claims may impact adjudication of the Veteran's TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the TDIU claim must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination to assist in determining the etiology and nature of the currently diagnosed acquired psychiatric disorder. All efforts made to schedule the examination should be documented and incorporated into the claims file. The relevant documents in the claims file should be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted and all pertinent diagnoses rendered. The examiner should also request a history from the Veteran. Based upon a review of the record and clinical findings, the VA examiner is requested to offer the following opinions: a) Is it 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) the Veteran's currently diagnosed acquired psychiatric disorder or the previously diagnosed pain disorder or depression is caused by either of his service-connected right knee disabilities, to include the effects of pain medications? b) Is it 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) the Veteran's currently diagnosed acquired psychiatric disorder or the previously diagnosed pain disorder or depression is aggravated (permanently worsened in severity) by either of his service-connected right knee disabilities, to include the effects of pain medications? If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. The opinion should also consider the Veteran is presumed sound at entry to service and not solely rely on the absence of continuous psychiatric treatment. 2. Schedule the Veteran for the appropriate VA examination to assist in determining the nature of the service-connected right knee disabilities. All efforts made to schedule the examination should be documented and incorporated into the claims file. The relevant documents in the claims file should be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, to include range of motion (ROM) testing of the right knee in degrees. The examiner should also request a history from the Veteran. The examiner should address the extent of functional impairment attributable to any reported during flare-ups. The examiner should describe whether any existing pain significantly limits functional mobility of the right knee during flare-ups or when repeatedly used. If it is not feasible to address the functional limitation during flare-ups, this should be stated and discussed in the examination report. If the Veteran does not have flare-ups or any other factors, that fact should be noted as well. 3. Thereafter, all the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ MICHELLE L. KANE 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).