Citation Nr: 1647832 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 10-48 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected left ankle degenerative and enthesopathic changes. 2. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected left ankle degenerative and enthesopathic changes. 3. Entitlement to service connection for an acquired psychiatric disorder, (other than post traumatic stress disorder after May 2014) to include as secondary to service-connected left ankle degenerative and enthesopathic changes. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction as subsequently transferred to the RO in San Juan, the Commonwealth of Puerto Rico. However, of note, in August 2014, the Veteran moved to San Antonio, Texas. In March 2012 and January 2013, the Board remanded the claims for additional development. In the January 2013 decision, the Board awarded service connection for left ankle degenerative and enthesopathic changes. Nevertheless, it does not appear that this award has been effectuated in an appropriate rating action by the Agency of Original Jurisdiction (AOJ). In this regard, the most recent rating codesheet dated in August 2015 does not list this disorder as being subject to compensation. As such, the AOJ must take appropriate action to effectuate the Board's grant of the Veteran's left ankle disorder. In an April 2015 rating decision, the RO awarded service connection for post traumatic stress disorder (PTSD) and assigned a maximum total 100 percent rating, effective May 27, 2014. The RO continued the appeal as to service connection for a psychiatric disorder, other than PTSD. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the award of a 100 percent disability rating does not render moot the claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted. Bradley, at 293-94. Because of this holding, VA's General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley. See 75 Fed. Reg. 11229 -04 (March 10, 2010). As such, in light of Bradley, the Veteran's TDIU claim has not been rendered moot and is still in appellate status. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Board's prior remand, the Veteran asserts that he developed his right ankle and hip conditions due to injuries incurred in a parachute jump and in the performance of his duties in service, which required heavy lifting. In the alternative, he has asserted that these disorders are secondary to his service-connected left ankle disability. As to these issues, in January 2013, the Board requested an addendum to the April 2012 VA examination to address whether any current right hip and ankle disability had their onset in service, or were secondary to a left ankle disability. The addendum was obtained in August 2016. In the addendum, the examiner stated that since no pathologies of the right ankle or right hip joints were found at the prior examination, an opinion could not be rendered. However, a November 2003 x-ray showed osteoarthritis of the right hip; a March 2006 MRI of the right hip showed mild narrowing of the joint space with marginal spurs; a December 2014 VA examination also noted ostearthritis of the right hip since February 2013; and an April 2012 x-ray of the right ankle showed small right sided posterior calcaneal enthesophyte about the insertion site of the Achilles tendon. Further, August 2013 clinical records showed that the Veteran presented with right ankle pain and a note was made that x-rays showed a diagnosis of degenerative joint disease. Given this disparity between the 2016 opinion and other evidence, further development is necessary as indicated below. With respect to the issue of service connection for an acquired psychiatric disorder, the Board's January 2013 Remand sought an opinion as to whether any psychiatric disorder diagnosed during the appeal period, regardless of whether it may have resolved, could be related to service or service connected disability. This opinion was obtained in August 2016. Again, the examiner indicated that there was no mental disorder diagnosis and in turn, the requested opinion could not be obtained. However, it would appear the opinion provider did not have access to the Veteran's complete file which shows that in December 2014, the Veteran was diagnosed to have PTSD (for which he is now service connected at 100 percent), and major depressive disorder identified as secondary to his orthopedic conditions and loss of vision. The obvious disconnect between the addendum opinion and the other evidence of record should be reconciled to the extent possible, as indicated below. The issues of entitlement to a TDIU and SMC based on the need of aid and attendance are inextricably intertwined with the remaining claims on appeal. As such, these issues must also be returned to the AOJ for further consideration. Under the circumstances described above, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to address the etiology of his currently diagnosed right ankle and right hip disorders. The electronic record should be made available to the examiner for review prior to the examination. After examining the Veteran and taking a complete, thorough medical history, the examiner should offer an opinion as to whether it is as least as likely (a 50% or higher degree of probability) as not that the diagnosed right ankle and/or right hip disorders are related to the Veteran's active service, to include parachute jumps and lifting heavy objects; are proximately due to, or caused by, the Veteran's service-connected left ankle disorder; or has been aggravated by the Veteran's service-connected left ankle disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. In offering this opinion, the examiner should consider the service treatment records, post-service treatment records and the Veteran's lay statements. 2. Schedule the Veteran for a VA mental disorder examination. The electronic record should be made available to the examiner for review prior to the examination. After examining the Veteran and taking a complete, thorough medical history, the examiner should offer an opinion as to the following: (a) Whether it is as least as likely (a 50% or higher degree of probability) as not that the Veteran had a mental disorder at any point after the date of claim for service connection in November 2009, and whether he had a mental disorder other than PTSD, after May 2014. If any such disorder was present, its diagnosis should be identified and the examiner should indicate whether it is as least as likely (a 50% or higher degree of probability) as not that such psychiatric disorder is related to the Veteran's active service, to include his in-service stressors; whether it is proximately due to, or caused by, the Veteran's service-connected left ankle disorder; or has been aggravated by the Veteran's service-connected left ankle disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. In offering this opinion, the examiner should consider the service treatment records, post-service treatment records and the Veteran's lay statements. 3. 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 remaining claims, to include the Veteran's claims for a TDIU and SMC, 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, which includes consideration of all evidence contained the electronic record. 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 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). 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). _________________________________________________ MICHAEL E. KILCOYNE 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).