Citation Nr: 1801311 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-21 281 ) 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 30 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected left knee and right ankle disabilities. 3. Entitlement to service connection for varicose veins, to include as secondary to service-connected left knee and right ankle disabilities. 4. Entitlement to an initial compensable rating for left knee strain. 5. Entitlement to service connection for a back disorder (claimed as middle and lower back), to include as secondary to service-connected left knee and right ankle disabilities. 6. Entitlement to service connection for right knee degenerative joint disease, to include as secondary to service-connected left knee and right ankle disabilities. REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The January 2013 rating decision, in pertinent part, granted service connection for PTSD with a non-compensable evaluation effective August 29, 2011, denied service connection for a left ankle disability, and denied service connection for varicose veins. In a May 2013, rating decision the RO granted an increased rating of 30 percent for PTSD, effective August 29, 2011. The July 2013 rating decision, in pertinent part, granted service connection for a left knee disability and assigned a non-compensable evaluation effective June 11, 2013. The rating decision also denied service connection for anterior spondylolisthesis, L5 on S1, with facet joint degenerative disc disease, L4-L5 and L5-S1 (claimed as middle and low back disability), and right knee degenerative joint disease. The Board notes that in his June 2013 and November 2013 VA Forms 9 the Veteran requested a videoconference hearing before a Veterans Law Judge. In June 2015, the case was remanded in order to schedule the Veteran for such a videoconference hearing. However, in statements received in July 2015 the Veteran withdrew his hearing request. In May 2016, the case was remanded to allow the RO to retrieve pertinent medical records and for the issuance of an SSOC which would take into consideration the Veteran's Social Security Administration disability records. That development having been completed, the case now returns to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. While the Board sincerely regrets the delay, the Veteran's claims are again remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claims are afforded every consideration. The Veteran was last afforded a VA examination addressing the severity of his service-connected left knee disability and PTSD in July 2013 and May 2013 respectively. In a December 2017 Representative Correspondence, the Veteran's representative asserted that the Veteran's left knee and PTSD symptoms have worsened since his last examinations. See December 2017 Representative Correspondence. Accordingly, given the suggestion that the Veteran's disability pictures have changed and that the most recent examinations are somewhat remote, new VA examinations are warranted to assess the current levels of severity of the Veteran's service-connected left knee disability and PTSD. See 38 C.F.R. § 3.327 (a) (2017) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); Olsen, 3 Vet. App. at 482; Proscelle v. Derwinski, 2 Vet. App. at 632; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the Veteran's representative has asserted that the increased impairment caused by the Veteran's left knee condition, has in turn aggravated the Veteran's non-service connected conditions on appeal. See December 2017 Representative Correspondence. Accordingly, the Board notes that VA opinions should be obtained regarding whether the Veteran's left ankle disability, varicose veins, low back disorder, and right knee disability are aggravated by his service-connected left knee disability. Lastly, the May 2016 Board decision found that the Veteran received vocational rehabilitation through the VA. At the time of the July 2016 supplemental statement of the case, the RO had obtained the Veteran's VA vocational rehabilitation records, although these documents are no longer associated with the file. Accordingly, on remand the RO should associate these records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain VA Vocational Rehabilitation file as well as all outstanding VA treatment records dated from May 2016 and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected PTSD. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the VA examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner must identify the symptoms and functional impairment associated with the Veteran's PTSD, and discuss the degree of occupational and social impairment caused by his symptoms. Preferably, the appropriate Disability Benefits Questionnaire (DBQ) should be used for this purpose. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Schedule the Veteran for an appropriate VA examination to assist in determining the nature and current level of severity of his service-connected left knee disability. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. In particular, the examiner(s) should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint in question and any paired joint(s). The examiner should also determine the extent of any additional limitations of motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In forming an opinion, the examiner must elicit information about the severity, frequency, duration, precipitating, and alleviating factors and extent of functional impairment of flare-ups from the Veteran and the record. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, Slip Op. No. 16-1385 (September 6, 2017). The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Next, schedule the Veteran for appropriate VA examinations for his back, right knee, left ankle, and varicose vein disorders. The examiner(s) must review the Veteran's claims folder/electronic file, including this Remand. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner(s) must note in the examination report that the evidence in the claims file has been reviewed. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner(s). After reviewing the file, obtaining a complete medical, social, and occupational history pertinent to the Veteran's claimed condition, and examining the Veteran, the examiner(s) must render an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back, right knee, left ankle, and varicose vein disabilities had their clinical onset during active service or is related to any in-service disease, event, or injury. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back, right knee, left ankle, and varicose vein disabilities are due to or aggravated by his left knee and/or right ankle disabilities. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner(s) is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. In this regard, the examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If the examiner(s) rejects the Veteran's reports regarding the onset of symptoms related to his disorders, the examiner(s) must provide a reason for doing so. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it. 5. Then, review the medical examination report to ensure that it adequately responds to the above instructions, including that it provides an adequate explanation in support of the opinion stated. If the report is deficient in this regard, return the case to the examiner(s) for further review and discussion. 6. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA 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).