Citation Nr: 1720060 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 08-16 355 ) 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 as secondary to service-connected bilateral knee disabilities. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a disability rating in excess of 10 percent for status post right knee meniscal tear. 5. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis and chronic capsulitis of the left knee, status post arthroscopy and arthrotomy. 6. Entitlement to a disability rating in excess of 10 percent for right knee instability. 7. Entitlement to a disability rating in excess of 10 percent for left knee instability. 8. Entitlement to special monthly compensation by reason of the need for regular aid and attendance of another person or by reason of being housebound. 9. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision and a May 2015 simplified notice letter (SNL) by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). In December 2011, the Board issued a decision denying the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, based on a Joint Motion for Remand, the Court vacated the Board's decision and remanded the appeal. In January 2013, the Board again denied the Veteran's claim for service connection. The Veteran appealed the decision to the Court, which, in a January 2013 Memorandum Decision, vacated the Board's decision and remanded the matter to the Board for further adjudication consistent with the Memorandum Decision. In January 2015, the Board remanded the claim for entitlement to service connection for an acquired psychiatric disorder for additional development. While in remand status, the Veteran perfected an appeal as to the other issues listed on the front page of this decision. Inasmuch as the issue of entitlement to TDIU was not expressly adjudicated in the May 2016 statement of the case that considered the Veteran's increased rating claims for his knees, it is an issue that has been raised by the record. For instance, the Veteran's representative expressly claimed in July 2016 that "this request for TDIU is not a new claim for benefits, but rather part of the Veteran's increased rating claim." Accordingly, per Rice v. Shinseki, 22 Vet. App. 447 (2009), the matter be considered part and parcel of the claim for benefits for the underlying disability. The issues of entitlement to service connection for bilateral hearing loss; entitlement to service connection for tinnitus, entitlement to a disability rating in excess of 10 percent for status post right knee meniscal tear; entitlement to a disability rating in excess of 10 percent for degenerative arthritis and chronic capsulitis of the left knee, status post arthroscopy and arthrotomy; entitlement to a disability rating in excess of 10 percent for right knee instability; entitlement to a disability rating in excess of 10 percent for left knee instability; and entitlement to special monthly compensation by reason of the need for regular aid and attendance of another person or by reason of being housebound; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving doubt in the Veteran's favor, his acquired psychiatric disorder, which has been variously diagnosed, is caused by his service-connected knee disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran alleges that his psychiatric disorder was caused by his service-connected knee disabilities. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). Because the Veteran's claim to reopen service connection for an acquired psychiatric disorder was filed in April 2007, the amended regulation applies. As an initial matter, the evidence establishes that the Veteran has been diagnosed with a current psychiatric disability during the appeal period, which has been variously diagnosed. See, e.g., September 2012 private evaluation by Dr. A.M.S. (Axis I: Major Depressive Disorder, Axis II: Mood Disorder, secondary to general medical condition); May 2016 VA (diagnosing Schizoaffective Disorder); March 2017 private evaluation by Dr. D.M. at p. 14 (providing a DSM diagnosis of Major Depressive Disorder, Severe with Psychotic Features). Further, the Veteran is service-connected for status-post right knee meniscal tear, degenerative arthritis and chronic capsulitis of the left knee, status-post arthroscopy and arthrotomy, and instability of both knees. In ascertaining whether there is a link between the diagnosed psychiatric disorder and any of his service-connected disabilities, the Board notes that the Veteran submitted multiple private psychological evaluations that gave a positive nexus between the two. First, in May 2013, the Veteran submitted a September 2012 private examiner's opinion: According to the C-file, the [V]eteran has had multiple psychological diagnoses given to him. Regardless, it seems that the majority of his VA mental health providers agree that the [V]eteran has been depressed with a mood disorder. After my examination, I can agree with the majority that currently the veteran indeed has a depressive disorder and mood disorder. It appears that they are indeed, secondary to multiple social medical and financial factors. These precipitating factors include the [V]eteran's chronic pain secondary to his multiple medical conditions, inability to be gainfully employed and residual limitations in his functional capacities. Moreover some, if not all of these factors are associated with the veteran's service-connected connected bilateral degenerative arthritis. Therefore, I must conclude the [V]eteran' s major depressive disorder (9434) is at least likely as not secondary to the [V]eteran's service-connected bilateral knee condition." September 2012 private evaluation by Dr. A.M.S. (Emphasis added). In April 2017, the Veteran also provided a copy of his March 2017 independent psychiatric assessment by Dr. D.M., who found that the Veteran suffered from severe depression, with psychotic features, "which more likely than not developed secondary to his service-connected bilateral knee condition including chronic pain and limited mobility." Dr. D.M.'s examination report also referenced a private evaluation with A.C., R.N., in June 2014, who likewise stated, "I opine based on the relationship between pain and depression and the [V]eteran's long-standing history of knee pain due to his service-connected bilateral knee condition, it is at least as likely as not the [V]eteran's depression is the result of his service-connected bilateral knee disability." See March 2017 private psychiatric evaluation. The Board recognizes that there is an April 2016 negative VA nexus opinion, which found that secondary service connection on a direct causational basis was not warranted, in part, because the "[V]eteran has no mention of muscular skeletal pain being a stressor until last CPRS psychiatry note on 4/13/16." However, this negative opinion is clearly based on an inaccurate factual premise; the September 2012 private examiner expressly documented the relationship between his physical ailments and his current psychiatric disorder, and the Veteran's and daughter's contentions that his physical condition caused his psychiatric complaints are well documented prior to that time. In any event, the April 2016 VA examiner nonetheless recognized that the Veteran's psychiatric disorder was aggravated by his service-connected disabilities, explaining "[a]nother stressor such as chronic pain can aggravate a psychiatric disorder such as schizoaffective disorder." Thus, although not finding direct causation, aggravation was conceded. In its entirety, the evidence sufficiently establishes a causational link between the effects of the Veteran's knee disabilities and his psychiatric disorder. Given the favorable nexus evidence of record, the Board resolves doubt in the Veteran's favor and finds that the evidence is at least in equipoise to support the establishment of service connection for an acquired psychiatric disorder on a secondary basis. ORDER Service connection for an acquired psychiatric disorder, variously diagnosed, is granted. REMAND With regard to the remaining issues, the Board finds that a remand for additional development is necessary. I. New VA Knee and Audiological Examinations First, the Veteran should be afforded an adequate VA examination of the knees that evaluates range of motion based on active and passive motion, in weight-bearing and nonweight-bearing. According to 38 C.F.R. § 4.59, "[w]ith any form of arthritis, painful motion is an important factor of disability," and it is noted that this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The last sentence of 38 C.F.R. § 4.59 indicates that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59 (2017). In Correia v. McDonald, the Court determined that testing listed in the final sentence of § 4.59 is required unless a medical examiner determines that it cannot or should not be conducted. 28 Vet. App. at 168-70. Here, the existing examination reports are inadequate to adjudicate the Veteran's claim for a higher rating based upon limitation of motion. The October 2011 VA examiner did not indicate whether the range of motion tests were performed using active and passive motion or were performed under weight-bearing and nonweight-bearing conditions; nor does the report contain any indication that such testing could not or should not be performed or was somehow inappropriate in this case. See Correia, 28 Vet. App. at 168-70. Accordingly, a remand is necessary so that the Veteran can be "tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint" as required by 38 C.F.R. § 4.59, as well as determine the current level of severity of his knee disabilities since the most recent October 2011 examination over six years ago. Additionally, the Veteran has not been provided with a VA audiological examination since October 2011, when his diminished hearing did not rise to the level of a hearing loss disability as defined by VA. Since then, there is evidence that his hearing loss has worsened. See, e.g. June 2015 VA treatment (He "was provided with the phone number to get a special phone for the hard of hearing from the state"). Because the October 2011 VA examiner's negative opinion for hearing loss and tinnitus is based, at least in part, on the fact that the Veteran has "essentially normal hearing now," a new audiological examination should be conducted to determine whether the Veteran has a hearing loss disability throughout any portion of the appeal period and, if so, whether it is related to any in-service noise exposure. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). III. TDIU and Special Monthly Compensation Deferment Because the AOJ will be assigning an initial rating and effective date for the Veteran's service-connection claim for an acquired psychiatric disorder, which will impact the analysis for TDIU and special monthly compensation-as well as the fact that TDIU and special monthly compensation entitlement could be impacted by the remanded claims-it would be premature for the Board to adjudicate TDIU or special monthly compensation at this time. As such, the matters are deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. Obtain any recent VA treatment records dated from October 2016 to the present that are relevant to the issues being remanded. 2. Arrange to have the Veteran scheduled for a VA examination of the knees. The claims file [i.e. any relevant records contained in Virtual VA/Veterans Benefits Management System (VBMS)] must be provided to and reviewed by the examiner. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should fully describe any and all functional deficits associated with the service-connected knee disabilities. (a) The examiner should record the range of motion observed on clinical evaluation, in terms of degrees. In so doing, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible, with the range of the opposite undamaged joint. Alternatively, the examiner must provide an explanation as to why it is not possible to do so; (b) If there is clinical evidence of pain on motion, the examiner should indicate the degree at which such pain begins; (c) Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically) if feasible; and (d) The examiner should also report the level of severity of the Veteran's bilateral knee instability. 3. Schedule the Veteran for a new VA audiological examination. For any established hearing loss or tinnitus, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) whether such disorder is related to in-service noise exposure. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 of Veterans' Appeals or by the U.S. 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). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs