Citation Nr: 1644387 Decision Date: 11/23/16 Archive Date: 12/02/16 DOCKET NO. 13-26 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a right knee musculoligamentous strain. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a neck disability, to include a mechanical cervical strain. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from July 1991 to July 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2011 and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska In October 2015, the Board in pertinent part denied entitlement to an increased rating for the right knee disability, and remanded the issues of entitlement to service connection for a neck disability, an increased rating for PTSD, and an inferred claim of entitlement to a TDIU. The Veteran appealed the Board's denial of the right knee increased rating claim to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted a Joint Motion for Partial Remand, which set aside the Board's October 2015 decision to the extent that it denied the right knee claim, and remanded the matter for further adjudication consistent with the Joint Motion. In January 2016, the RO awarded an increased 70 percent rating for PTSD, effective January 2, 2016. As that increase did not represent a total grant of the benefit sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that remand is necessary for further development of the claims of entitlement to service connection for a neck disability, increased ratings for PTSD and the right knee, and a TDIU. Regarding the neck disability, pursuant to the Board's prior remand, the Veteran was scheduled for a VA examination in January 2016. However, the record shows that the Veteran did not appear and the examination was cancelled. The Veteran's attorney explained in a June 2016 statement that the Veteran missed the examination due to a "severe panic attack" and requested a new examination. Having shown good cause for his failure to appear for the examination, the Board finds that remand is warranted to provide the Veteran a VA examination to address his claimed neck disability. Next, regarding the right knee increased rating claim, the parties to the Joint Motion questioned whether a September 2011 VA examination report was sufficient upon which to rate the Veteran's right knee disability, as the examination was not conducted during a flare of his right knee disability, and because the Veteran provided specific and potentially clinically-controllable aggravating factors, including heavy activity, twisting and rotation. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). However, the Board observes that the Veteran reported to the September 2011 VA examiner that his flare-ups "can last a week," suggesting that they do not always last a week and do not last longer than a week, a relatively short period of time, and that his right knee "does not interfere with his job..." Thus, scheduling an examination during a flare-up is neither practical nor necessary. See Voerth v. West, 13 Vet. App. 117, 122-23 (1999). Nevertheless, as the Veteran's right knee has not been examined in over five years, the Board finds that remand is necessary for a new examination. The new examination report should include the results of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing," consistent with the Court's holding in Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Turning to the claim for PTSD, the Board recognizes that the Veteran was recently examined in January 2016. However, as reported by the Veteran's attorney, the Veteran experienced a "severe panic attack" subsequent to the January 2016 VA PTSD examination. The Board observes that panic attacks, or even panic generally, were not reported during the January 2016 or March 2013 VA examinations. Such evidence suggests that the Veteran's PTSD may have worsened and, when considered with a specific request from the Veteran's attorney, warrants remand of the PTSD increased rating claim. Moreover, as the Veteran's attorney has asserted that the Veteran's inability to work is specifically related to his PTSD, an opinion is necessary as to the impact of his PTSD on occupational functioning throughout the entire period on appeal. On remand, all relevant outstanding records should be obtained, to include ongoing VA treatment notes. Additionally, the Board notes that in a June 2016 written statement, the Veteran's attorney references a written statement dated February 25, 2016, and evidence related to PTSD and the TDIU claim, that he submitted in response to the January 2016 SSOC. However, neither that statement nor any additional evidence relating to TDIU appears to be of record. The Veteran and his attorney should be asked to resubmit the February 2016 statement and any accompanying evidence. It is also noted that while the Veteran indicated on his initial June 2011 claim for compensation that he had not received any medical treatment for his conditions since his 1995 discharge from service, he has reported that he missed work annually due to his neck disability or was fired from jobs due to his PTSD symptoms. In this regard, the Veteran reported during his March 2013 VA PTSD examination that his longest held job was for a year and a half, that he had been fired from work due to verbal conflicts, and that he last worked in August 2012 and had conflicts with his boss. However, VA treatment notes support that he worked until November 2012 and that the reported conflict with his boss stemmed from his boss's failure to assist him with a worker's compensation claim for left ankle and right elbow injuries sustained at work, and not as a result of PTSD symptoms. In any event, as there is a lack of post-service medical evidence relating to PTSD, post-service employment-related evidence should be obtained as such could support entitlement to a higher rating for PTSD or a TDIU. Finally, because the TDIU claim is inextricably intertwined with the service connection and increased rating claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The Board also observes that concerning the TDIU claim, the Veteran has not completed the VA Form 21-8940 provided to him in November 2015, although it is possible that the completed form may be included in the evidence submitted in February 2016 referenced above. In any event, he should be provided another copy of the form and requested to supply the requisite information. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran and his attorney to resubmit any potentially outstanding evidence or argument, to specifically include the February 25, 2016 written statement and accompanying evidence concerning a TDIU. 2. If necessary, provide the Veteran another VA Form 21-8940 and request that he supply the requisite information. 3. After obtaining any necessary release, request the Veteran's post-service employment records. 4. Associate with the claims file all VA treatment records dating since January 2016, as well as any identified outstanding private treatment records. 5. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed neck disability. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's neck disability, to include a mechanical cervical strain, is related to his active duty service? A detailed rationale for the opinion must be provided. The examiner is advised that the Veteran is competent to describe his neck symptoms, and that opinions based solely on the lack of medical documentation are inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. The claims file should be made available to and be reviewed by the examiner. Any appropriate diagnostic testing should be conducted and noted in the report. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion testing of the opposite undamaged joint. 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 that is so. The examiner is asked to describe any instability or subluxation of the right knee, to state whether there is any weakness in the affected extremity, and to provide an evaluation of the limitations and restrictions imposed by the Veteran's service-connected right knee disability on occupational functioning. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. 7. Then, schedule the Veteran for a VA psychological examination to determine the current nature and severity of his PTSD with alcohol and cannabis use disorder. The claims file should be made available to and be reviewed by the examiner. Any appropriate diagnostic testing should be conducted and noted in the report. The examiner should describe the nature and extent of the Veteran's service-connected PTSD with alcohol and cannabis use disorder since the effective date of service connection on June 2, 2011. The examiner should also provide specific information concerning any functional impairment that results from the service-connected PTSD that may affect the ability to function and perform tasks in a work setting for the entire period on appeal. 8. Thereafter, readjudicate the issues on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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 2014). _________________________________________________ S. C. KREMBS 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).