Citation Nr: 1802418 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-43 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 30 percent for a right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T.L. Bernal, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from November 1979 to January 1985. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge in November 2012 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. The Veterans Law Judge who presided over that hearing is no longer with the Board. In an August 2017 letter, the Veteran was notified of that fact and offered the opportunity to appear at a new hearing before a current member of the Board. In a subsequent August 2017 response, the Veteran notified the Board that he did not wish to appear at a new hearing and wanted his case considered based on the evidence of record. This case was previously before the Board, most recently in June 2015, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the Veteran has a pending appeal of the issue of entitlement to service connection for a back disability. The Veteran has requested a hearing with regard to his appeal of that issue. The Board notes that the August 2017 letter to the Veteran regarding his prior hearing and requesting whether he wished to appear at a new hearing before a current member of the Board extended only to those issues previously heard at the November 2012 hearing. The issue of entitlement to service connection for a back disability was not one of those issues. Therefore, as there is a pending hearing request, the Board does not have jurisdiction to decide the issue of entitlement to service connection for a back disability and the Veteran will be scheduled for his requested hearing separate from this decision. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The issue of entitlement to service connection for a psychiatric disability was remanded by the Board in January 2013 and again in June 2015 in order to obtain an etiology opinion regarding all currently present psychiatric disabilities. A review of the record shows that the Veteran was afforded the directed VA examination in April 2016. At that time, the VA examiner diagnosed panic disorder with agoraphobia. The examiner did not provide an opinion regarding the etiology of that disability. For that reason, the Board finds that the development conducted does not adequately comply with the directives of the June 2015 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present psychiatric disability. A review of the record shows that the Veteran was last afforded a VA examination of his right knee in February 2013. Since that time, it appears as though the Veteran's knee disability may have increased in severity. Additionally, a recent Court decision provides that VA examinations for musculoskeletal disabilities must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2017). The Board has reviewed the February 2013 VA examination report and concludes that the findings therein do not meet the requirements of 38 C.F.R. § 4.59 pursuant to Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected right knee disability, to include findings compliant with Correia. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private medical records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present psychiatric disability, to include PTSD. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all acquired psychiatric disabilities present during the pendency of the claim, or proximate thereto, to include PTSD. Then, the examiner should provide an opinion for all psychiatric disabilities identified as to whether it is at least as likely as not (50 percent or better probability) that any identified psychiatric disability is etiologically related to active service. In forming the opinion, the examiner should presume that the Veteran is credible with regard to his reports of onset and continuity of his mental health symptoms. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected right knee disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies should be performed. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, the examiner should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare-ups; whether there is weakened movement, excess fatigability, or incoordination. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ Kristin Haddock 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).