Citation Nr: 1800384 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-01 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disability claimed as anxiety and depression, to include as secondary to service-connected left knee and lumbar spine disabilities. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability and proximal tibial metaphysis with faint rarification of trabecular marking (hereinafter, left knee instability). 3. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the left knee and proximal tibial metaphysis with faint rarification of trabecular marking (hereinafter, left knee degenerative changes). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from October 12, 1972 to November 29, 1972 and in the Army from April 25, 1974 to May 24, 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2009 and March 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran appeared at the RO and testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the case in January 2014. The issue of entitlement to service connection for a left hip disability as secondary to the service-connected left knee disabilities has been raised by the record in an October 2017 private medical record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). REMAND The Veteran underwent a VA examination in April 2015, in which the examiner indicated that the examination was conducted pursuant to DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed. 2013). In the instant case, as the Veteran's psychiatric claim was initially certified to the Board prior to August 4, 2014, DSM-5 does not apply. Therefore, the Veteran must be scheduled for another VA examination applying DSM-IV criteria. After the VA examination, the Veteran submitted private treatment records, dated from January 2012 to March 2015, from Dr. Allman of Cornerstone Healthcare, which reflects that he had a diagnosis of anxiety state and was receiving treatment including psychotropic medication for anxiety and depression during that entire period. A VA examination of the joints must, if possible, test for pain on both active and passive motion and in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016); 38 C.F.R. § 4.59. The Veteran has submitted additional private and VA medical records pertaining to treatment of his left knee disabilities. The Board previously referred for AOJ action the issue of whether there was clear and unmistakable error (CUE) in a September 1973 RO rating decision that denied service connection for a left knee disability. In email correspondence of RO personnel, it was noted that the CUE issue appeared to be resolved with the March 2014 rating decision (which granted service connection for left knee disabilities, per the Board decision, effective in October 2008), and no further RO action was taken on the matter. The previously raised CUE claim with a 1973 RO decision was never properly adjudicated by the RO, is inextricably intertwined with the present claim for an initial higher rating for the left knee disabilities. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the claims file all VA medical records pertaining to evaluation and treatment of the Veteran's left knee disabilities. The AOJ should ask the Veteran to submit any private records pertaining to evaluation and treatment he received for his left knee disabilities (during the evaluation period) that are not already associated with the record, or to submit an appropriate medical release for the VA to obtain the records on his behalf. 2. The AOJ should adjudicate the claim of CUE in the September 1973 rating decision that denied service connection for a left knee disability. 3. The AOJ should arrange for the Veteran to be scheduled for a VA examination to determine the nature and likely etiology of any psychiatric disability. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. The examiner is asked to consider and apply the old criteria of DSM-IV, rather than the criteria of DSM-5, in identifying and describing the nature, frequency, and severity of any psychiatric disability. Based on review of the record and examination of the Veteran, the examiner should opine regarding the likely etiology for any diagnosed disability. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the disability either (a) was related to his periods of service from October 1972 to November 1972 and from April 1974 to May 1974, or (b) was caused, or aggravated, by his left knee disabilities, lumbar spine disability, and/or the radiculopathies associated with the lumbar spine disability. The examiner must explain the rationale for all opinions, citing to relevant evidence, supporting factual data and medical literature, as appropriate. A prior VA examination report of April 2015 is on file; and private evaluation and treatment records on file include those of Dr. Crum in July 2010 and of Dr. Allman of Cornerstone Healthcare from 2012 to March 2015. Aggravation is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation by a service-connected disability is found, the examiner should identify, to the extent possible, the degree of disability resulting from such aggravation. If the examiner determines that the opinion sought cannot be given without resort to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 4. The AOJ should arrange for the Veteran to be scheduled for a VA orthopedic examination to determine the nature and severity of his current left knee disabilities. The claims file must be made available to the examiner for review. The examiner should ensure all necessary testing is conducted including range-of-motion testing, and address whether there is additional loss of function and pain on motion per DeLuca v. Brown, 8 Vet. App. 202 (1995). In assessing left knee range of motion, the examiner should test for pain on both active and passive motion and in weight-bearing and non-weight bearing per Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). If any of the above testing cannot be conducted, the examiner should provide the reason why. The examiner should also describe the Veteran's functional impairment from his service-connected left knee disabilities and furnish an assessment (without consideration of his age and any nonservice-connected disabilities) as to the types of activities he would be able to participate in and those that would be precluded by the left knee disabilities, from a medical standpoint. All opinions must include an explanation. 5. After completion of the foregoing to include adjudication of the outstanding CUE claim in a 1973 RO decision, the AOJ should review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate SSOC, afford the Veteran opportunity to respond, and 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). 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ CHERYL L. MASON 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 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).