Citation Nr: 1332926 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-11 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to an initial disability rating higher than 10 percent for a right ankle disorder. 3. Entitlement to an initial disability rating higher than 10 percent for a right knee disorder. 4. Entitlement to an initial disability rating higher than 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 8, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969; and he is a Vietnam combat veteran. Commendations include a Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2008 and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The 2008 rating decision granted service connection for a right ankle disorder and a right knee disorder with an evaluation of 10 percent, each, effective October 24, 2006; and denied service connection for a left knee disorder. The 2009 rating decision granted service connection for PTSD with an evaluation of 30 percent effective March 10, 2006. In an August 2013 written argument," the Veteran's representative raised the issue of entitlement to TDIU, and in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), and given that his claim for a higher rating for PTSD has been pending since July 2005, the Board has identified this issue as stated on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND With regard to the claim for service connection for a left knee disorder, in October 2007 the Veteran was accorded a VA examination, which included x-rays. In the ensuing report the examiner noted that the Veteran complained of bilateral knee pain, right greater than left; and noted that the Veteran had been using an ace wrap on both knees for more than 10 years. Unfortunately, x-rays of the left knee were not done, and no diagnosis or opinion was proffered regarding the left knee. As that evidence is inadequate, remand for a new examination is warranted. See Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (noting that an inadequate medical evaluation frustrates effective judicial review). As regards the claims for increased ratings, medical and lay evidence, including Social Security disability records, associated with the claims file since the Veteran's last VA joints examination in October 2007, and since the last PTSD examination in December 2008, indicates that the Veteran's service-connected right ankle and right knee, and his service-connected PTSD disabilities, have worsened. Specifically, and as regards the Veteran's appeal for a higher initial rating for his service-connected right ankle and right knee disabilities, VA treatment records dated after the 2007 examination document the Veteran as complaining of right knee buckling, and note that the Veteran uses bilateral ankle prosthesis and ambulates with a cane and a walker. Additionally, and as regards the Veteran's appeal for a higher initial rating for his service-connected PTSD disability, VA and private medical records advise of increased difficulty with occupational and social functioning secondary to the Veteran's PTSD, and reflect GAF scores lower than the December 2008 GAF of 63. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected right ankle, knee, and PTSD disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim for a new examination. Further, on remand, the RO must adjudicate the Veteran's entitlement to a TDIU prior to April 8, 2010. Finally, on remand all of the Veteran's outstanding VA treatment records dated after October 2012 should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims file, physically or electronically, all of the Veteran's VA medical records dated after October 2012 to the present. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of his in-service and post-service left knee problems and the nature, extent and severity of right ankle, right knee and PTSD symptoms and their impact on his social functioning and ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a new VA examination with regard to his claim for service connection for a left knee disorder, and to ascertain the severity of his service-connected right ankle and right knee disabilities. The examiner must review the claims file in conjunction with this examination, and must interview the Veteran during the examination. a) With regard to the Veteran's service-connected right ankle and right knee disabilities, range of motion testing must be done, and all findings reported in detail. The examiner must also discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain on use, and provide an opinion as to the degree to which this pain further limits movement of the ankle and/or knee, i.e., the extent of his pain-free motion. The examiner should also discuss the presence of any right knee instability and provide an opinion as to whether the instability is best characterized as slight, moderate, or severe. b) With regard to the issue of service connection for a left knee disorder, all indicated tests, including range of motion testing and x-rays, must be done, and all subjective complaints and objective findings must be documented in the examination report. The examiner must then opine as to whether it is at least as likely as not that a current left knee disorder, if found, is related to or had its onset during service. If it is determined that a current left knee disorder was not incurred during service (or, for arthritis, in the year after service), please opine as to whether it is at least as likely as not that a current left knee disorder was caused by his service-connected right ankle, right knee, or left ankle disabilities, including any related gait problems and the aggregate impact of his left ankle, right ankle and right knee disabilities. If it is determined that a current left knee disorder was not caused by a service-connected disability, please opine as to whether it is at least as likely as not that a current left knee disorder is/has been aggravated by the Veteran's service-connected right ankle, right knee, or left ankle disabilities, including any related gait problems and the aggregate impact of his left ankle, right ankle and right knee disabilities. In this context the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening, as contrasted to a temporary worsening of symptoms, of the left knee disorder by the service-connected left ankle, right ankle, or right knee disability, beyond its natural clinical course. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. A complete rationale for any opinions provided must set forth in a legible report. 4. Schedule the Veteran for a new VA examination to ascertain the severity of his psychiatric disability. The examiner should review the claims file in conjunction with the examination, and must interview the Veteran during the examination. The examiner is then specifically requested to identify the nature, frequency and severity of the Veteran's PTSD symptoms, and estimate the Veteran's current global assessment of functioning score. The examiner must also assess the level of impairment of the Veteran's service-connected PTSD on his social and occupational functioning. A complete rationale for all opinions must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. Then readjudicate the appeal, to include the Veteran's entitlement to a TDIU prior to April 8, 2010. In readjudicating his right knee claim, the RO must specifically adjudicate whether a separate compensable rating is warranted for right knee instability. If any benefit sought is not granted in full, issue the Veteran a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ STEVEN D. REISS 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).