Citation Nr: 1333338 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-28 161A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to a higher initial rating in excess of 20 percent, for a ventral hernia, incisional repair, with residual abdominal wall muscle strain (previously characterized as history of incisional hernia repair with residual abdominal wall muscle strain; GERD), from September 23, 2010. 2. Entitlement to service connection for a right knee disability, including as secondary to service-connected right foot pes planus. 3. Entitlement to service connection for a left knee disability, including as secondary to service-connected right foot pes planus. 4. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1983, October 1990 to July 1991, and January 2004 to December 2004. She also had unspecified periods of service in the Army Reserve. This case has a lengthy procedural history, and initially came to the Board of Veterans' Appeals (Board) on appeal from October 2005, January 2007, July 2007 and September 2007 rating decisions of the RO in Lincoln, Nebraska. The October 2005 rating decision, in pertinent part, denied service connection for asthma and granted service connection and a noncompensable rating for history of incisional hernia repair with residual abdominal wall muscle strain. The January 2007 rating decision granted service connection and a noncompensable rating for right foot pes planus. The Veteran appealed these determinations, and requested higher initial ratings for residuals of incisional hernia repair and right foot pes planus. The July 2007 rating decision denied service connection for PTSD. The September 2007 rating decision continued a noncompensable rating for right thumb fracture and denied service connection for pes planovalgus of the left foot, gonoarthrosis of the right knee, and gonoarthrosis of the left knee. During the pendency of the appeal, a January 2007 statement of the case (SOC) granted a higher initial 10 percent rating for residuals of incisional hernia repair with residual abdominal wall muscle strain and gastroesophageal reflux disease (GERD), and an April 2007 SOC granted a higher 10 percent rating for right foot pes planus. In an October 2010 decision and remand, the Board denied entitlement to a higher rating for service-connected tinnitus, and remanded the remaining issues for additional development. In a December 2011 rating decision, the RO granted a higher 10 percent rating for right thumb fracture with residual small muscle strain, status post internal fixation of ulnar aspect, effective December 15, 2010; and an April 2012 rating decision granted a higher 20 percent rating for service-connected residuals of ventral hernia, incisional repair, with residual abdominal wall muscle strain, effective September 23, 2010, thus assigning a staged rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). In an October 2012 decision, the Board granted entitlement to service connection for asthma, denied entitlement to higher initial ratings for a ventral hernia, residuals of right thumb fracture, and right foot pes planus, and denied entitlement to service connection for left foot pes planus, a right knee disability, a left knee disability, and an acquired psychiatric disorder (to include PTSD). The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2013 joint motion for partial remand, the parties (the Veteran and the Secretary of VA) agreed that (1) the Board did not provide adequate reasons and bases for its denial of a higher rating in excess of 20 percent for service-connected ventral hernia during the period from September 23, 2010, that (2) the Board's statement of reasons and bases for its denial of service connection for right and left knee disabilities was inadequate, as was the December 2010 VA examination, and (3) that the November 2010 VA PTSD examination was inadequate, and requested that the Court vacate those portions of the October 2012 Board decision and remand these issues to the Board. The parties stated that the appellant did not dispute those portions of the Board's decision which granted service connection for asthma, denied entitlement to a higher rating in excess of 10 percent for a ventral hernia prior to September 23, 2010, denied a higher rating for a service-connected right thumb disability, denied a higher rating for service-connected right foot pes planus, and denied service connection for a left foot disability. In a June 2013 order, the Court granted the motion, vacated those portions of the Board's October 2012 decision which denied a higher rating in excess of 20 percent for service-connected ventral hernia during the period from September 23, 2010, denied service connection for right and left knee disabilities, and denied service connection for an acquired psychiatric disorder to include PTSD. The Court dismissed the appellant's appeal as to the remaining issues. The case was subsequently returned to the Board. In September 2013, the Veteran submitted additional pertinent medical evidence to the Board, and she did not waive initial RO review of this evidence. See 38 C.F.R. § 20.1304. The Board notes that the Veteran has both a paper claims file and an electronic Virtual VA folder. 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 In light of the May 2013 joint motion for partial remand and June 2013 Court order, the Board finds that a remand is required. As noted above, in their joint motion for partial remand, the parties agreed that the Board did not provide adequate reasons and bases for its denial of a higher rating in excess of 20 percent for service-connected ventral hernia during the period from September 23, 2010, that the Board's statement of reasons and bases for its denial of service connection for right and left knee disabilities was inadequate, as was the December 2010 VA examination, and that the November 2010 VA PTSD examination was inadequate. With respect to the claim for a higher rating in excess of 20 percent for service-connected residuals of ventral hernia, incisional repair, with residual abdominal wall muscle strain, effective September 23, 2010, the parties stated that the Board failed to explain why the 10 percent rating assigned under 38 C.F.R. § 3.114, Diagnostic Code 7346, pertaining to a hiatal hernia, could not be continued in addition to the 20 percent rating assigned on September 23, 2010 under Diagnostic Code 7339, pertaining to a postoperative ventral hernia. The parties found that the Veteran had been diagnosed with both a ventral hernia and GERD, and that the listed symptoms contemplated under Diagnostic Codes 7339 and 7346 do not overlap. The parties indicated that the Board should provide an adequate statement of reasons and bases as to whether the Veteran is entitled to separate ratings under each of these Diagnostic Codes, and whether 38 C.F.R. § 3.344(c) regarding stabilization of ratings applies, and if so, whether that regulation requires that the 10 percent rating under Diagnostic Code 7346 be continued. The Board notes that during the course of this appeal, the RO initially characterized this service-connected hernia disability in October 2005 as history of incisional hernia repair with residual abdominal wall muscle strain, then in January 2007 as history of incisional hernia repair with residual abdominal wall muscle strain and GERD, and finally in April 2012 as ventral hernia, incisional repair, with residual abdominal wall muscle strain (previously characterized as history of incisional hernia repair with residual abdominal wall muscle strain; GERD). As noted above, in September 2013, the Veteran submitted additional pertinent medical evidence to the Board, which relates to the current level of severity of the service-connected ventral hernia, incisional repair, with residual abdominal wall muscle strain. As the Veteran has not waived initial RO review of this evidence, this issue must be remanded to the RO for such review. See 38 C.F.R. § 20.1304. Moreover, given the length of time since the last VA examination in February 2012 and the Veteran's recent medical evidence dated in 2013 suggesting that the disability may be worsening, the Board finds that another VA digestive examination is needed to reassess the severity of her service-connected ventral hernia, incisional repair, with residual abdominal wall muscle strain, previously characterized as history of incisional hernia repair with residual abdominal wall muscle strain and GERD. See 38 C.F.R. §§ 3.327(a), 4.2; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See also VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Finally, when readjudicating the hernia appeal, the RO should consider the possibility of separate ratings as discussed above. Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided, but evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (2012). With respect to the claims for service connection for bilateral knee disabilities and for an acquired psychiatric disorder to include PTSD, the parties determined that the December 2010 VA orthopedic examination and the November 2010 VA PTSD examination were both inadequate. The parties found that additional VA medical examinations and/or opinions are required as to these issues. Thus these claims must be remanded for VA medical opinions with a review of the claims file and medical evidence and adequate supporting rationales. 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service connection is permissible on a direct basis for disability that was incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Arthritis will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection is also permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2012). Supporting medical nexus evidence generally is needed to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When determining service connection, all theories of entitlement - direct, presumptive and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In the joint motion for partial remand, with respect to the claims for service connection for bilateral knee disabilities, the parties indicated that on remand, the VA examiner must provide an opinion as to whether the Veteran's bilateral degenerative joint disease of the knees manifested during the year following separation from service, and as to whether the bilateral knee disabilities were secondary to or aggravated by a service-connected disability, to include her service-connected right foot pes planus. See 38 C.F.R. §§ 3.307, 3.309(a), 3.310. With respect to the claim for service connection for an acquired psychiatric disorder to include PTSD, the parties noted that the November 2010 VA examiner found that the Veteran did not meet the criteria for a current diagnosis of an Axis I psychiatric disorder. The parties nonetheless found that the VA examination was inadequate because the VA examiner did not provide an opinion as to whether the previous diagnoses of PTSD and other acquired psychiatric disorders during the claim period were valid. The parties specifically referred to diagnoses of depression and PTSD in August and September 2008 VA treatment records. The parties instructed that on remand, the VA examiner should address all previous diagnoses of an Axis I psychiatric condition during the appeal period and reconcile these diagnoses to determine whether the Veteran had a current psychiatric disability during the appeal period, citing McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The most recent VA medical treatment records in the file are dated in May 2012. The recently submitted evidence suggests that the Veteran needed additional surgery for her hernia condition in 2013. Ongoing relevant treatment records should be obtained regarding the hernia condition, the claimed knee disabilities, and the claimed psychiatric disorder. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in "constructive", if not actual, possession of the agency and must be obtained if they could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to identify any private, military, or VA medical treatment she has received since May 2012 for the service-connected hernia condition, or since service for bilateral knee disabilities or for a psychiatric disorder, and obtain any relevant treatment records that are not already on file. If a negative response is received from any VA, private, or military facility, the claims file should be properly documented in this regard; and the Veteran must be properly notified and provided an opportunity to submit such records. 2. Then, schedule the Veteran for a VA examination to determine the current severity of her service-connected ventral hernia, incisional repair, with residual abdominal wall muscle strain (previously characterized as history of incisional hernia repair with residual abdominal wall muscle strain; GERD). The examiner should note all relevant pathology and symptoms related to this disability and all indicated tests should be conducted. The claims file, to include a copy of this remand, should be provided to and reviewed by the examiner, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. 3. Upon receipt of all additional records, forward the claims file to a VA examiner, to obtain a medical nexus opinion concerning the etiology of the Veteran's right and left knee disabilities. The claims file, including a complete copy of this remand, must be provided to and reviewed by the examiner for the pertinent medical and other history. The examiner should specifically respond to the following questions: a) What is the likelihood (very likely, as likely as not, or unlikely) that any current right and/or left knee disability is related to the Veteran's military service or dates back to her service? (b) What is the likelihood (very likely, as likely as not, or unlikely) that arthritis of the right and/or left knee was manifested within the first year after her separation from service on December 3, 2004? (c) What is the likelihood (very likely, as likely as not, or unlikely) that the Veteran's already service-connected right foot pes planus, or any other service-connected disability, caused or is aggravating any current right and/or left knee disability? The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that she had prior to the aggravation. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning these claims, without resorting to mere speculation, explain why this is not possible. 4. Upon receipt of all additional records, schedule a VA examination with an appropriate examiner for a medical opinion as to the etiology of any psychiatric disorder diagnosed during the course of this appeal. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent medical and other history. The examiner should specifically respond to the following questions: a) What is the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder is related to the Veteran's military service or dates back to her service? (b) The VA examiner should address all previous diagnoses of an Axis I psychiatric disorder during the appeal period and reconcile these diagnoses to determine whether the Veteran had a current psychiatric disability at any time during the appeal period. If such a valid diagnosis is found, the examiner should provide a medical opinion as to the likelihood (very likely, as likely as not, or unlikely) that any prior validly diagnosed psychiatric disorder is related to service. The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning this claim, without resorting to mere speculation, explain why this is not possible. 5. Finally, readjudicate the claims on appeal. When readjudicating the hernia appeal, the RO should consider the possibility of separate ratings under Diagnostic Codes 7339 and 7346. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give him an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. 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. PARAKKAL 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).