Citation Nr: 1752986 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 00-09 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. 2. Entitlement to an increased rating for a left knee disability. 3. Entitlement to an increased initial rating for a right knee disability. 4. Entitlement to an increased rating for a left ankle disability. 5. Entitlement to an increased rating for a psychiatric disability. 6. Entitlement to a total disability rating for compensation on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1974. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A March 2015 Board decision denied service connection for a low back disability and remanded other issues for development. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In November 2015, the Court granted a Joint Motion for Partial Remand and remanded the claim for service connection for a low back disability to the Board. A January 2016 Board remand requested additional development on these issues. REMAND In October 2016, a VA examiner provided an examination to determine the etiology of the Veteran's low back disability; the severity of the Veteran's left knee, right knee, and right ankle disabilities; and the Veteran's ability to secure gainful employment due to his service-connected disabilities. Subsequently, in August 2017, the Veteran's representative submitted a private opinion regarding those issues. In that opinion, the private examiner reported reviewing the records and speaking to the Veteran by telephone. The examiner indicated that the Veteran's knee and ankle disabilities were of greater severity than contemplated by the currently assigned ratings. Additionally, the examiner reported that the Veteran's low back disability was caused by the service-connected knee and ankle disabilities. The Board notes that any findings regarding the severities of the Veteran's knee and left ankle disabilities are of somewhat questionable probative value, as the examiner admitted having never taken any range of motion measurements and to have conducted the interview by telephone. However, the examiner's findings suggest that the Veteran's service-connected knee and ankle disabilities have worsened since the most recent VA medical examination. Therefore, a remand is necessary to schedule an additional VA examination to determine the severity of the knee and ankle disabilities. Additionally, as the Veteran's claim for service connection for a low back disability, secondary to the knee and ankle disabilities, is inexplicably intertwined with the other issues, a remand is necessary to schedule an additional examination to determine the etiology of that disability. Additionally, the Veteran is in receipt of a 50 percent rating for a psychiatric disability, secondary to service-connected knee and ankle disabilities. In an August 2016 statement, the Veteran indicated that he currently dreams of killing himself and his wife three times per week. As the Veteran's statements indicate a worsening of his current psychiatric disability symptomatology, a remand is necessary to provide an additional examination. As the issue of entitlement to a TDIU is inextricably intertwined with the other issues on appeal, it must be remanded as well. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain and associate with the record all outstanding records of treatment for the claimed low back, ankle, knee, and psychiatric disabilities. Associate all records or responses received with the record. All efforts to obtain records should be fully documented. At a minimum, obtain all outstanding VA records. 2. Schedule the Veteran for a VA examination to be provided by a VA medical doctor examiner who has not previously examined the Veteran to determine the etiology of any low back disability; and the severity of left and right knee and left ankle disabilities. The examiner should note any functional impairment caused by the knee and ankle disabilities, including a full description of the effects of the disabilities upon the Veteran's ordinary activities, if any. As part of the examination, the examiner should perform range of motion tests for both knees and ankles for passive and active motion, and for both weight-bearing and nonweight-bearing. The examiner should opine whether there is any additional loss of function due to painful motion, excess motion, weakened motion, incoordination, fatigability, or on flare up. The examiner must review the claims file and should note that review in the report. All findings should be described in detail and all necessary diagnostic testing performed. Regarding the low back, after an interview with the Veteran, a review of the claims file, and an examination, the examiner should offer the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed low back disability is related to service or any incident of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed low back disability, was caused by a service-connected disability or disabilities, specifically left knee, right knee, left ankle, left ankle scar, and psychiatric disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed low back disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by a service-connected disability or disabilities, specifically left knee, right knee, left ankle, left ankle scar, and psychiatric disabilities? (d) The examiner should describe the impact of the Veteran's service-connected disabilities on occupational and social functioning, and should describe the symptoms resulting in those levels of impairment. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, considering his training, education, and work experience, but not age or nonservice-connected disability. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Then, schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist who has not previously examined the Veteran to determine the current severity of the service-connected psychiatric disability. The examiner must review the claims file and should note that review in the report. The examiner should make specific findings as to the extent and frequency of all psychiatric symptoms. The examiner also should provide a full multi-axial diagnosis. The examiner should describe the impact of the psychiatric disability on occupational and social functioning, and should describe the symptoms resulting in those levels of impairment. The examiner should provide an opinion as to whether the it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, considering his training, education, and work experience, but not age or nonservice-connected disability. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Then, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).