Citation Nr: 1804382 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-18 146 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected status post right knee anterior cruciate ligament (ACL) reconstruction with degenerative arthritic changes. 3. Entitlement to an initial compensable evaluation for service-connected gastroesophageal reflux disease (GERD). 4. Entitlement to an initial compensable evaluation for service-connected tension and sinus headaches. 5. Entitlement to an initial compensable evaluation for service-connected erectile dysfunction (ED). ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to August 2009. This case comes to the Board of Veterans' Appeals (Board) on appeal from RO decisions dated in February 2010 and November 2015. In its February 2010 rating decision, in pertinent part, the RO granted service connection for a right knee disability (rated 10 percent disabling), GERD (rated noncompensable), tension and sinus headaches (rated noncompensable) and ED (rated noncompensable). The Veteran appealed for higher initial ratings. A Board hearing was initially requested and scheduled, but the Veteran failed to report for such hearing. In March 2015, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. The case was subsequently returned to the Board. In its November 2015 rating decision, the RO denied service connection for an acquired psychiatric disorder to include depressive disorder and chronic pain disorder. In February 2016, the Veteran's former attorney withdrew from representation of the Veteran before VA. The Veteran did not respond to the RO's February 2016 letter asking him if he wanted to appoint another representative, and he has not appointed a new representative. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claims. With regard to the previously remanded appeals for higher ratings for a right knee disability, GERD, headaches, and ED, the Board notes that a supplemental statement of the case has not yet been issued since the Veteran underwent VA compensation examinations of these disabilities in February 2017. (The examination reports were completed in March 2017.) The AOJ has also obtained additional VA medical records and associated them with the claims file. Remand of these issues is required for initial AOJ consideration of the new evidence and issuance of a supplemental statement of the case. See 38 C.F.R. §§ 19.31(c), 19.37 (2017). With regard to the issue of entitlement to service connection for an acquired psychiatric disorder, the Board finds that a supplemental VA medical opinion is needed prior to appellate review. Governing regulation provides that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2017). A review of the October 2015 VA examination report and January 2016 addendum VA medical opinion reflects that the VA examiner did not provide an opinion as to whether any current service-connected disability aggravated any current psychiatric disorder, and the examiner did not provide a clear opinion as to whether or not any current psychiatric disorder is related to service. The Board thus finds that this VA examination is inadequate, and remand is required to obtain a supplemental VA medical opinion. Ongoing relevant medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(3) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. With any necessary releases, obtain any VA or private medical records of treatment or evaluation of the disabilities on appeal that are not already on file, and associate them with the electronic claims file. If the records are not obtainable (or none exist), the Veteran must be notified and the record clearly documented. 2. Next, obtain a supplemental VA medical opinion as to whether any current psychiatric disorder was (a) aggravated by any service-connected disability, or (b) is related to service. The examiner should be asked to review the claims file and provide an addendum medical opinion. A new examination need only be performed if deemed necessary by the examiner. (a) Indicate the likelihood (very likely, as likely as not, or unlikely) that a service-connected disability permanently aggravated any current psychiatric disorder. The Veteran's established service-connected disabilities include: a right knee disability, a left shoulder disability, a lumbar spine disability, a cervical spine disability, a left little finger deformity, allergic rhinitis, GERD, ED, scars, tinea versicolor, pilonidal cyst with recurrent abscess formation, and tension and sinus headaches. (b) Indicate the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder is related to service. In this regard, the examiner is asked to consider the October 2010 lay statements by the Veteran, his spouse, and former spouse. (These documents are located in the Legacy Content Manager Documents tab in VBMS.) The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, 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 of causation as it is to find against it. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If a medical opinion cannot be provided without speculation, the examiner should indicate why this is so. 3. After completing the requested actions and any additional action warranted, the AOJ should readjudicate the claims on appeal, with consideration of all additional evidence. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case as to all issues, and be given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). 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). S. L. Kennedy 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).