Citation Nr: 1552094 Decision Date: 12/14/15 Archive Date: 12/23/15 DOCKET NO. 12-16 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depression. 2. Entitlement to an initial rating in excess of 20 percent for intervertebral disc disease with radiculopathy. 3. Entitlement to an initial rating in excess of 10 percent for status post right knee PCL (posterior cruciate ligament) reconstruction. 4. Entitlement to an initial compensable for right foot plantar fasciitis. 5. Entitlement to an initial compensable rating for hepatic cyst. 6. Entitlement to an initial compensable rating for scar associated with status post right knee PCL reconstruction. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the issues listed on the title page of this decision, the Veteran also initially appealed the issue of entitlement to service connection for bilateral flexible flat foot deformity, which was addressed in a March 2012 statement of the case. However, in his May 2012 substantive appeal, the Veteran indicated that he no longer wished to continue the appeal of this issue. As such, this matter is no longer in appellate status. In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the record. At such time, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2015). Likewise, additional VA treatment records were also associated with the electronic record at that time and, in his testimony, the Veteran waived AOJ consideration of these records. As such, the Board may properly consider such newly received evidence. As a final preliminary matter, the Board notes that this appeal was processed using the paperless, electronic Virtual VA and Veterans Benefits Management System (VBMS) claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the Veteran 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 claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran is seeking service connection for an acquired psychiatric disorder. Service treatment records beginning approximately in March 2008 show complaints of anxiety and depression. Specifically, a March 2008 clinical record showed that the Veteran was seen for anxiety and mild depression. The Veteran reported that he was under elevated stress at work and was having economic and family problems. Another April 2008 record showed that the Veteran was having lots of anxiety over a trial/hearing the following week. Various assessments of adjustment disorder and generalized anxiety disorder were provided by the examiners. The Veteran's DD 214 showed that he was discharged under honorable conditions due to misconduct, but does not provide any further information. After service, the Veteran was afforded a VA psychiatric examination in March 2009. The examination report showed that the Veteran was court marshalled and convicted of a felony for use of cocaine while on active duty. After reviewing the claims file and examining the Veteran, the examiner diagnosed chronic adjustment disorder with anxious and depressed mood. The examiner observed that the Veteran stated that he was constantly worried about his employability due to his military charges. The examiner opined that the Veteran's adjustment disorder was a result of felony conviction while in service and subsequent continued anxiety and depression was due to future employability. The Board observes that 38 U.S.C.A. § 105(a) states, in relevant part, that an injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. In light of the above, the Board finds that the Veteran's service personnel records concerning his court marshal and felony conviction for cocaine use are relevant to this claim and should be obtained. Moreover, the March 2009 VA examiner failed to offer any sort of rationale for simply finding that the Veteran's current psychiatric disorder was due solely to his felony conviction, especially given that his symptoms of anxiety and depression manifested in service and, at times, were reported to be related to job, economic issues, and family stress. The United States Court of Appeals for Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board finds that a new examination and opinion is necessary to determine whether the Veteran has an acquired psychiatric disorder that is separate and distinct from the adjustment disorder that has been attributed solely to his felony conviction. The Veteran is also seeking initial higher ratings for his service-connected low back disability, right knee disability, right foot disability, hepatic cyst disability, and right knee scar. He was most recently afforded VA examinations in March 2009, over six years ago, to assess the severity of these disabilities. Importantly, in a March 2011 statement, the Veteran reported that his physical condition was progressively worsening. In his May 2012 substantive appeal, he also indicated that all of his disorders met the criteria for higher ratings. Moreover, at the July 2015 Board hearing, the Veteran again indicated that his symptoms have gotten worse. In this regard, he reported increasing pain, more restrictive movement, and instability of both his low back and right knee. He also reported that insoles for his right foot had been prescribed and submitted private treatment records showing increasing chronic right heel pain. He further testified that he was now experiences bowel, bladder, and digestive issues associated with his hepatic cyst. Furthermore, he indicated that his right knee scar was painful to touch and also restricted his movement. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's statements, hearing testimony and additional medical evidence, the Board finds that a new VA examination(s) is necessary to determine the current severity his service-connected low back disability, right knee disability, right foot disability, hepatic cyst disability, and right knee scar. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Lastly, the Veteran's Virtual VA record includes VA treatment records dated through July 2015 from the Bay Pines, Florida, VA Medical Center (VAMC). However, more recent records may exist. As VA medical records are constructively of record and must be obtained, the AOJ should obtain VA treatment records dated from July 2015 from the Bay Pines VAMC. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's VA treatment records dated from July 2015 from the Bay Pines VAMC. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any additional records, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder. It is imperative that the electronic record be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. (A) The examiner should clearly identify all psychiatric disorders found to be present that meet the 4th edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). The Board notes that, for cases certified to the Board prior to August 4, 2014, a diagnosis must be in accordance with the DSM-IV. 38 C.F.R. § 4.125(a) (2014). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to, among other things, remove outdated references to the DSM and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45 ,093 (Aug. 4, 2014). The aforementioned changes do not apply to this case, as this was certified to the Board prior to August 4, 2014. (B) After reviewing the record and examining the Veteran, the examiner should offer an opinion as whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran has a diagnosed acquired psychiatric that manifested during his active service or is otherwise related to his military service, which is separate and distinct from his diagnosed adjustment disorder that has been attributed solely to his felony conviction. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. In proffering this opinion, the examiner should specifically address the service treatment records showing symptoms of anxiety and depression and, at times, were reported to be related to job, economic issues, and family stress, the March 2009 VA psychiatric examination and the Veteran's lay statements. 4. After obtaining any additional records, the Veteran should be afforded an appropriate VA examination(s) to determine the current nature and severity of his service-connected low back disability, right knee disability, right foot disability, hepatic cyst disability, and right knee scar. The electronic record, including a copy of this remand, must be made available to the examiner(s) for review. Any medically indicated tests should be accomplished. With respect to the low back, the examiner should describe the nature and severity of all manifestations of his disorder. Examination findings should be reported to allow for application of pertinent rating criteria for the lumbar spine. The examiner should conduct range of motion testing of the low back (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the low back due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also clearly determine whether the Veteran has any associated neurological disabilities and comment on the severity of any such disorders, if any. The examiner should also determine whether the Veteran suffers from any incapacitating episodes due to his spinal disorder. With respect to the right knee, the examiner should describe the nature and severity of all manifestations of his disorder. Examination findings should be reported to allow for application of pertinent rating criteria for the knees. The examiner should conduct range of motion testing of the right knee (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the right knee. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate, or severe. With respect to the right foot plantar fasciitis, the examiner should describe the nature and severity of all manifestations of his disorder. Examination findings should be reported to allow for application of pertinent rating criteria for foot disabilities. The examiner should The examiner should specifically determine whether the Veteran's left foot disability should be characterized as moderate, moderately severe, or severe. With respect to the hepatic cyst, the examiner should describe the nature and severity of all manifestations of his disorder. Examination findings should be reported to allow for application of pertinent rating criteria. The examiner should also specifically address whether the Veteran has any associated bowel, bladder, or digestive abnormalities associated with his disorder. With respect to the right knee scar, the examiner should describe the nature and severity of all manifestations of his disorder. Examination findings should be reported to allow for application of pertinent rating criteria. The examiner should clearly describe the scar and its measurements. The examiner should also report as to whether the scar is unstable or painful. With respect to all the disorders, the examiner should discuss the functional impact such disabilities have on the Veteran's activities of daily living and employment. The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's service connected disorder at any point since June 28, 2008, the effective date of service connection, and, if so, the approximate date(s) of any such change(s). A rationale should be provided for any opinion offered. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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) (2015).