Citation Nr: 1637420 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 13-17 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to a disability rating greater than 10 percent for service-connected right knee degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service in the United States Marine Corps from May 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia. In June 2016, the Veteran testified at a videoconference hearing before the undersigned. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for psychiatric symptoms and a lumbar spine disorder which he asserts were caused, or made worse, by the chronic pain due to his service-connected right knee disability. In this regard, service connection is currently in effect for right knee degenerative joint disease, rated as 10 percent disabling. With regard to the psychiatric disorder, the Veteran has submitted a medical opinion from his treating VA psychiatrist, who noted that the Veteran's knee pain was a significant stressor in the development of his frustration and dysphoria, as it limited his ability to work and to engage in pleasurable activities. In a more recent opinion he indicated the Veteran had a significant worsening of his psychiatric symptoms related to his worsening right knee function. See Medical Opinions dated September 3, 2014 and July 9, 2015 from VA Staff Psychiatrist at Salem VA Medical Center. However, this opinion seems to be in direct contrast to findings this same psychiatrist made during outpatient therapy. The counseling notes from these sessions show the psychiatrist described the Veteran as more frustrated than depressed. He documented the Veteran's concerns about his finances, particularly his difficulty paying bills on his retirement and government compensation. See VA Mental Health Outpatient Notes dated February 19, 2013, August 23, 2013, and January 31, 2014. Moreover when examined by VA in April 2012 and February 2016, both examiners determined that the Veteran's diagnosed adjustment disorder with mixed anxiety and depressed mood was related to chronic financial stressors, exacerbated by his recent retirement and reduction of income. Although the both VA examiners ultimately concluded that the Veteran's adjustment disorder was not related to his service-connected right knee disability, neither sufficiently addressed the question of whether the Veteran has additional disability resulting from aggravation of his adjustment disorder by his service-connected right knee. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Therefore, a clarifying addendum opinion is needed. With regard to the lumbar spine, the Veteran was afforded a VA examination in July 2012. The report however is somewhat confusing in that the examiner acknowledged evidence of arthritis-type changes in the lumbar spine and exaggerated lumbar lordosis, but then determined the Veteran had no specific conditions of the back. This opinion also does not address whether the Veteran has additional disability resulting from aggravation of his lumbar spine arthritis and exaggerated lumbar lordosis by his service-connected right knee. Id. Because the evidence of record does not necessarily provide a clear picture of whether the Veteran has a current lumbar spine disorder related to his service-connected right knee disability, additional VA examination is necessary. The Veteran also contends that his service-connected right knee degenerative joint disease is more disabling than the current 10 percent evaluation reflects. Review of the claims folder reveals that the symptoms he testified to at his 2016 hearing indicate a worsening of this disability since his VA examination in December 2014. He reported increasing knee pain described as constant throbbing with an intensity level of 10/10 on the pain scale. He also noted flare-ups of severe pain that last for hours and that he now experiences instability and weakness, leading to falls despite wearing a knee brace. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all clinical records, both VA and non-VA, pertaining to treatment of the Veteran for psychiatric symptoms and back problems that are not already in the claims file. Also update to the present the records of his VA treatment for right knee degenerative joint disease. 2. The Veteran's claims file should then be returned, if possible, to the VA psychologist who examined him in February 2016 for a more detailed and responsive opinion. If that examiner is not available, the Veteran's file should be sent to another VA psychologist or medical professional who will have an opportunity to review the complete file. Another examination of the Veteran need not be conducted unless the examiner determines that one is necessary to render an opinion. In light of additional review the record, the examiner should offer an opinion as to whether, in light of additional review the record, it is at least as likely as not, i.e., a 50 percent probability or greater, that the adjustment disorder with anxiety and depressed mood is aggravated (permanently worsened) by his already service-connected right knee arthritis. If no aggravation is found, the examiner should specifically indicate so and explain why that is. In providing this opinion, the examiner should specifically discuss the September 2014 and July 2015 opinions by the VA staff psychiatrist. If the examiner agrees or disagrees with these opinions, he/she should specify his or her reasoning for doing so. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. The examiner must also consider the Veteran's lay testimony in addition to the documentary evidence of record. 3. Schedule the Veteran for appropriate VA examination of his lumbar spine and service-connected right knee disability. The claims file must be made available to and be reviewed by the examiner. The appropriate Disability Benefit Questionnaire must be utilized. For the right knee the examiner should: Specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should also specifically discuss the Veteran's functional loss in terms of range of motion during a flare-up. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In addition to objective test results, the examiner must describe the Veteran's symptoms and fully describe the functional impairment caused by the right knee disability. The examiner must also discuss the impact of the Veteran's right knee disability on his employment and activities of daily life. For the lumbar spine the examiner should: Clearly identify any lumbar spine disorders and indicate whether any degenerative changes shown on X-ray support diagnoses of arthritis. The examiner should then provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's lumbar spine arthritis and exaggerated lumbar lordosis-as well as any other lumbar spine disorder shown on current examination-is aggravated (permanently worsened) as a result of altered gait imposed by the right knee arthritis and/or weight-bearing due to pain instability or weakness from the right knee arthritis. If no aggravation is found, the examiner should specifically indicate so and explain why that is. In providing this opinion, the examiner should specifically discuss the July 2012 VA examination report. If the examiner agrees or disagrees with this opinion, he/she should specify his or her reasoning for doing so. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. The examiner must also consider the Veteran's lay testimony in addition to the documentary evidence of record. 4. Then, readjudicate the claims on appeal. If the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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 H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).