Citation Nr: 1333672 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 03-09 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for arthritis of the left knee, including as due to a service-connected right knee disability. 2. Entitlement to an initial higher rating for major depressive disorder, not otherwise specified, evaluated as 10 percent disabling prior to February 23, 2005, 30 percent disabling from February 23, 2005 to December 6, 2012, and 50 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from June 1963 to June 1967. The issue of service connection for a left knee disability comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Central Office Board hearing was held in June 2003 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. After the Veterans Law Judge who held the hearing subsequently retired from the Board, the Veteran was advised in May 2012 correspondence from the Board that he could requested another hearing before a different Veterans Law Judge. The Veteran declined another Board hearing in July 2012. See 38 U.S.C.A. § 7107; 38 C.F.R. §§ 20.707, 20.717. In May 2004, April 2006, and July 2008, the Board remanded this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In June 2010, the Board denied the Veteran's claims. He timely appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 decision, the Court vacated and remanded the Board's June 2010 decision. In August 2011 and May 2013, the Board again remanded the case for further development. The issue of entitlement to service connection for an acquired psychiatric disability was also remanded by the Board. However, a subsequent rating decision in June 2013 granted service connection for major depressive disorder, not otherwise specified. Thus, as this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. Nevertheless, as discussed further below, the Veteran has initiated an appeal with respect to the initial rating assigned. Additional evidence was associated with the claims file after the most recent supplemental statement of the case was issued in June 2013. In a September 2013 statement, the Veteran representative waived RO consideration of this evidence. However, in light of the need to remand for further development, the RO will have the opportunity to consider such evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims. With the exception of additional VA treatment records dated to June 2013 and a brief submitted by the Veteran's representative in August 2013, a review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board remanded the issue of service connection for arthritis of the left knee in May 2013 to obtain an addendum opinion on a secondary service connection basis. Specifically, the examiner was asked to opine whether it was at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee arthritis disability had been caused by, or aggravated (permanently worsened) by any service-connected disability (fecal incontinence associated with hemorrhoids, mega colon with chronic constipation, irritable bowel syndrome, chondromalacia patella of the right knee, and hemorrhoids). In offering the opinion, the examiner was to address an October 1964 x-ray finding. A detailed rationale for all opinions was also requested to be provided. In June 2013, an addendum opinion was prepared. The examiner opined that the claimed condition was less likely than not due to or the result of the Veteran's service-connected condition. He rationalized that there was no correlation between right knee chondromalacia patella and left knee osteoarthritis in the orthopedic literature. Further, none of the other medical conditions for which the Veteran was service-connected were related to osteoarthritis either. He further indicated that the October 1964 x-ray had nothing to do with his left osteoarthritis being caused by any sort of right knee complaints. However, the VA examiner did not provide an opinion as to whether the Veteran's left knee disability was aggravated by his service-connected disabilities as directed in the prior Board remand. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Thus, the Board finds that a remand is necessary to comply with the May 2013 Board remand. Specifically, the Veteran's claims file should be sent to the June 2013 VA examiner to render an addendum opinion on aggravation. If the June 2013 VA examiner is not available, an opinion should be provided by another appropriate examiner. Moreover, as observed above, in the June 2013 rating decision, the RO granted service connection for major depressive order. In July, August and September 2013, the Veteran submitted statements that can reasonably be construed as a notice of disagreement to the initial rating assigned pursuant to 38 C.F.R. § 20.201. The RO has not issued a statement of the case with respect to this matter. The Court has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded for the issuance of a statement of the case, and to provide the Veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Finally, in light of the need to remand for another matter, the RO should also obtain updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action pursuant to 38 C.F.R. § 19.26 (2012), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issue of entitlement to an initial higher rating for the service-connected major depressive disorder. The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to this issue. 2. The RO should obtain the Veteran's VA treatment records, dated from June 2013 to the present. 3. Forward the claims file, to include a copy of this remand, to the VA examiner who prepared the June 2013 addendum opinion. The examiner should indicate in the report that the claims file was reviewed. The VA examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee arthritis disability has been aggravated (permanently worsened) by any service-connected disability (fecal incontinence associated with hemorrhoids, mega colon with chronic constipation, irritable bowel syndrome, chondromalacia patella of the right knee, and hemorrhoids). The examiner specifically must address the clinical significance, if any, of an October 1964 x-ray finding of an abnormal left femoral shaft and whether this demonstrates that the Veteran's arthritis of the left knee was aggravated (permanently worsened) by his right knee disability. The rationale for any opinion expressed should be provided in a legible report. If the June 2013 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain such an opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 4. Then, after any other indicated development is completed, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MARJORIE A. AUER 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).