Citation Nr: 1514474 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 13-08 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a psychiatric disability (to include schizophrenia and depression), to include as secondary to service-connected patellofemoral syndrome of the right knee. 2. Entitlement to an initial rating higher than 10 percent for patellofemoral syndrome of the right knee. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1984. These matters come before the Board of Veterans' Appeals (Board) from August 2011 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In the August 2011 decision, the RO denied entitlement to service connection for schizophrenia and granted service connection for patellofemoral syndrome of the right knee and assigned an initial 10 percent disability rating, effective from September 28, 2010. In the October 2013 decision, the RO denied entitlement to a TDIU. The Veteran testified before the undersigned at a February 2014 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with his claims file. In addition to the paper claims file, there are Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims files associated with the Veteran's claims. The documents in these files have been reviewed and considered as part of this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A VA psychiatric examination was conducted in September 2012 to assess the nature and etiology of the Veteran's claimed psychiatric disability and he was diagnosed as having schizophrenia, paranoid type. The clinical psychologist who conducted the examination opined that the disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service and she provided an accompanying rationale. Subsequent to the September 2012 examination, the Veteran contended that his psychiatric disability is related to his service-connected right knee disability. In support of this contention, he submitted a June 2014 "Psychiatric/Psychological Impairment Questionnaire" from M. Polk, DO which reflects that chronic pain (including knee pain) was impacting the Veteran's mood and worsening his depressive symptoms. In light of this evidence, an opinion needs to be obtained as to whether his service-connected right knee disability caused or aggravated his claimed psychiatric disability. See 38 C.F.R. § 3.310 (2014). As for the appeal for a higher initial rating for the service-connected right knee disability, the evidence suggests that the disability may have worsened since the Veteran's last examination in November 2012. For example, a January 2014 VA primary care treatment note and the June 2014 "Psychiatric/Psychological Impairment Questionnaire" from Dr. Polk include reports of worsening knee symptoms. Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected right knee disability is triggered. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2014); see 38 C.F.R. § 19.9 (2014). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2014). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The claims file contains only minimal service treatment records. Included among these records is a May 1984 record from the mental health clinic at Shaw Air Force Base which briefly documents that the Veteran was to enter rehabilitation. There are no further records detailing the mental health treatment received at that time. The Veteran's original claims file was lost and the current evidence of record is contained in a reconstructed file. It is unclear as to whether his complete service treatment records were lost with the original file. Nevertheless, efforts should be taken upon remand to attempt to obtain any available service treatment records from the National Personnel Records Center (NPRC), Shaw Air Force Base, and any other appropriate source. The Veteran's claims may not be decided until a formal determination as to the unavailability of additional service treatment records has been made. See Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran's complete service personnel records may contain information pertinent to his claim of service connection for a psychiatric disability. Hence, on remand, efforts should be undertaken to obtain a copy of his Official Military Personnel File. A July 2014 VA mental health medication management note contained in the Salt Lake Vista electronic records system reflects that the Veteran was scheduled for additional VA psychiatric treatment in September 2014. There are no more recent VA treatment records in the claims file or among the Veteran's paperless records. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). A February 2010 VA emergency department note indicates that the Veteran had sought psychiatric treatment at "EA Conway." When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any relevant treatment records from "EA Conway." Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Also, the Veteran has not been provided specific notice of the information and evidence that is necessary to substantiate a claim of service connection on a secondary basis in accordance with VCAA. Cf. 38 U.S.C.A. § 5103(a). Therefore, such notice shall be provided upon remand. With respect to the claim for a TDIU, the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing) on his October 2014 substantive appeal (VA Form 9). He has a right to a hearing, but one has not yet been scheduled for the TDIU issue. See 38 C.F.R. § 20.700(a), (e) (2014). There is no evidence in the record that the hearing request has been withdrawn. A remand is therefore necessary to schedule the requested hearing. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a Board hearing before a Veterans Law Judge at the RO regarding the issue of entitlement to a TDIU. 2. Send the Veteran a VCAA notice letter that provides him with notice as to the information and evidence that is required to substantiate a claim of service connection on a secondary basis. A copy of this letter must be included in the claims file. 3. Contact the NPRC, Shaw Air Force Base, and any other appropriate source and request all available service treatment records. If any service treatment records are unavailable, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual rewrite, M21-1MR. Specifically request records of any treatment reported by the Veteran. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. If any service treatment records are missing or are otherwise unavailable, this fact shall be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 5. Ask the NPRC to obtain a copy of the Veteran's complete Official Military Personnel File, including all appraisals of his performance. If efforts to obtain the Veteran's personnel records are unsuccessful through the NPRC, request such records from any other appropriate depository. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 6. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a psychiatric disability and a right knee disability, to include the dates of any such treatment. The Veteran shall also be asked to specifically complete authorizations for VA to obtain all records of his treatment for a psychiatric disability and a right knee disability from "EA Conway" (see the February 2010 VA emergency department note) and from any other sufficiently identified private treatment provider from whom records have not already been obtained. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims. All such notification must be documented in the claims file. 7. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability and a right knee disability contained in the Salt Lake Vista electronic records system and dated from July 2014 through the present; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 8. After all efforts have been exhausted to obtain and associate with the claims file any additional service records and post-service treatment records, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability. All indicated tests and studies shall be conducted. The claims folder, including a copy of this remand and all relevant evidence contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current psychiatric disability identified (i.e., any psychiatric disability diagnosed since September 2010 including, but not limited to, schizophrenia and depression), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current psychiatric disability had its clinical onset in service, had its clinical onset in the year immediately following service (in the case of any currently diagnosed psychosis), or is otherwise the result of a disease or injury in service. The examiner shall also indicate whether it is at least as likely as not (50 percent probability or more) that any psychiatric disability diagnosed since September 2010 was caused or aggravated by the Veteran's service-connected patellofemoral syndrome of the right knee. If aggravated, specify the baseline level of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. In formulating the above opinions, the examiner shall specifically acknowledge and comment on any psychiatric disabilities diagnosed since September 2010 (including, but not limited to, schizophrenia and depression), any evidence of treatment for psychiatric problems in the Veteran's service treatment records, and the June and July 2014 opinions from Dr. Polk (see the June 2014 "Psychiatric/Psychological Impairment Questionnaire and Dr. Polk's June and July 2014 letters). The absence of evidence of treatment for specific psychiatric problems in the Veteran's service records cannot, standing alone, serve as the basis for a negative opinion. The examiner must provide reasons for each opinion given. 9. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected right knee disability. All indicated tests and studies shall be conducted. The claims folder, including a copy of this remand and all relevant evidence contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The ranges of right knee flexion and extension shall be reported in degrees. With respect to both knee flexion and extension, the examiner shall also specify whether and to what extent there is any additional loss of knee motion (stated in degrees) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain The examiner shall report if there is any ankylosis of the right knee and, if so, the angle at which the knee is held. The examiner shall also report whether there is any subluxation or instability of the right knee, and if present, provide an opinion as to its severity (i.e., slight, moderate, or severe). The examiner must provide reasons for any opinion given. 10. After conducting any additional indicated development, the AOJ shall readjudicate the issues on appeal and issue a supplemental statement of the case as appropriate. After the Veteran is given an opportunity to respond, the case shall be returned 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). 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 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).