Citation Nr: 1600147 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 12-14 502A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than October 9, 2009, for the 30 percent disabling evaluation of post traumatic stress disorder (PTSD) with dysthymic disorder. 2. Entitlement to service connection for status post left knee arthroscopy with medial meniscectomy (claimed as left knee arthritis and bilateral knee condition). 3. Entitlement to an initial evaluation in excess of 10 percent disabling, for the period prior to October 9, 2009, in excess of 30 percent disabling, for the period beginning October 9, 2009, to prior to April 30, 2013, in excess of 50 percent disabling, for the period beginning April 30, 2013, to prior to August 20, 2014, and in excess of 70 percent disabling thereafter, to include consideration of a total disability rating based upon individual unemployability (TDIU), for PTSD with dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy A. Ralls, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., and a March 2010 rating decision from the VA Regional Office (RO) in St. Petersburg, Florida. The Board notes that additional evidence has been associated with the claims file since the April 2012 statement of the case (SOC). The Veteran has not submitted a waiver of his right to have the RO initially consider this additional evidence, such as in a supplemental SOC (SSOC). See 38 C.F.R. §§ 19.31, 19.37, 20.800, 20.1304(c) (2015); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). However, as the claims are being remanded, the AOJ will have an opportunity to consider the evidence in the first instance. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a left knee condition which he claims has caused him problems ever since basic training. A service treatment record, dated August 1969, noted that a radiograph was conducted on the Veteran's left knee patella. The record indicated that "no significant abnormalities are noted." The separation report of medical examination, dated March 1971, noted left knee complaints. The notation section indicates an X-ray of the left knee was negative and the summary of defects and diagnoses note that there was left knee pain secondary to a fall with soft tissue trauma. There are multiple VA treatment records going back to 2008 that indicate the Veteran had left knee problems. The Veteran was afforded a VA joints examination in February 2010. The examiner noted that there was an injury 8-10 weeks earlier which had caused the Veteran to experience pain on the inside aspect of his left knee. The Veteran indicated that he had stepped off a semi-truck and twisted his left knee. The pain had persisted at a level of 7 out of 10. The examiner noted that the left knee was non-tender with pain on motion with discomfort throughout. The Veteran's flexion was limited by pain 1-130. The examiner's diagnosis and discussion noted: No objective finding to support a diagnosis of a bilateral knee Arthritis. Incidental finding status post left knee arthroscopy with medial menisectomy with no objective finding of residual functional limitation. The Veteran's current condition is not the same as or is a result of the sprain of medial collateral ligament right knee or a result of arthritis in both knees show during active duty. The VA medical examiner focused on the VA records which reflect a left knee injury; however, the examiner fails to discuss the notations in the service treatment records regarding a left knee injury. Because the examiner failed to discuss the in service incident and whether the current left knee condition is related to the in service incident, the medical examination is inadequate. Once VA undertakes the effort to provide an examination when developing 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). As the opinion from February 2010 is inadequate, the claims are remanded for a new medical opinion. In a July 2009 rating decision, the Veteran was granted entitlement to service connection for dysthymic disorder and assigned a rating of 10 percent disabling, effective May 27, 2004. In October 2009, the Veteran filed a VA Form 21-4138, Statement in Support of Claim, in which he stated that the facts of the decision in July 2009 were not correct and he felt his condition was worse than described by the VA examiner. The Board interprets this as a Notice of Disagreement to the initial evaluation of 10 percent disabling, for dysthymic disorder. Since the filing of the Notice of Disagreement, the Veteran has filed multiple claims for an increased rating. In March 2010, the RO issued a rating decision characterizing the issue as PTSD with dysthymic disorder and increasing the evaluation to 30 percent disabling, effective October 9, 2009. In July 2014 the disability rating was increased to 50 percent disabling, effective April 30, 2013. In April 2015 it was increased to 70 percent disabling, effective August 20, 2014. A decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). To date, the RO has not issued the Veteran a Statement of the Case with respect to entitlement to a higher initial evaluation for dysthymic disorder. Under the circumstances, the Board has no discretion and is obliged to remand the issue to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As the outcome of the Veteran's appeal regarding entitlement to a higher initial evaluation for PTSD with dysthymic disorder, may render as moot the Veteran's claim of entitlement to an effective date earlier than October 9, 2009, for the 30 percent disabling evaluation of PTSD with dysthymic disorder; the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Thus, the Board will not adjudicate the issue entitlement to an effective date earlier than October 9, 2009, for the 30 percent disabling evaluation of PTSD with dysthymic disorder until entitlement to a higher initial evaluation for PTSD with dysthymic disorder is adjudicated. As the issues are being returned on remand, all pertinent VA treatment records since April 2015, need to be obtained and considered. 38 C.F.R. § 3.159 (2015). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file complete VA treatment records regarding the Veteran since April 2015. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination(s) to determine the nature, extent, onset, and etiology of any left knee disability found to be present. The claims file and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing should be conducted. After a review of the examination findings and the entire evidence of record, the examiner(s) must answer the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any left knee disability found to be present is related to or had its onset during service? b. Is it at least as likely as not (50 percent or greater probability) that any left knee disability found to be present manifested to a degree of 10 percent disabling during the first year after separation from service? The examiner(s) should comment on the service treatment records from August 1969 and March 1971. The examiner(s) are advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms. A complete rationale for all opinions expressed must be provided. 3. Issue a Statement of the Case with respect to the claim for a higher initial evaluation in excess of 10 percent disabling, for the period prior to October 9, 2009, in excess of 30 percent disabling, for the period beginning October 9, 2009, to prior to April 30, 2013, in excess of 50 percent disabling, for the period beginning April 30, 2013, to prior to August 20, 2014, and in excess of 70 percent disabling thereafter, to include consideration of a total disability rating based upon individual unemployability, for PTSD with dysthymic disorder. Include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. Allow the appellant the requisite period of time for a response. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a Supplemental Statement of the Case and provided an opportunity to respond. 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). 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 2014). ____________________________________________ MILO H. HAWLEY 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).