Citation Nr: 1805315 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 17-19 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for bilateral sensorineural hearing loss. 3. Entitlement to a disability rating in excess of 10 percent for condrocalcinosis, left wrist, (previously evaluated as residuals, left wrist injury). 4. Entitlement to a compensable disability rating for limitation of motion, left ring finger, 5. Entitlement to a compensable disability rating for scars on the left hand. 6. Entitlement to a disability rating in excess of 10 percent for osteoarthritis of the right knee. 7. Entitlement to a compensable disability rating for residuals of a right knee injury with anterior cruciate ligament laxity. 8. Whether the reduction in compensation from 40 percent to 10 percent for osteoarthritis of the left knee was proper. 9. Whether the reduction in compensation from 10 percent to 0 percent for left knee instability was proper. 10. Entitlement to a total disability rating due to individual unemployability (TDIU). WITNESSES AT HEARING ON APPEAL The Veteran and B.G. ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1985 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. First, an October 2013 rating decision (1) denied service connection for PTSD; (2) denied increased disability ratings as to all of the claims for increased ratings listed on the cover page of this decision; (3) proposed reductions in disability ratings for the left knee conditions listed on the cover page of this decision; and (4) denied entitlement to TDIU. Then a subsequent, March 2015 rating decision effected the reductions for the left knee conditions as of June 1, 2015. Two hearings were held in this matter. In August 2017, a hearing was held in this matter, but the recording of that hearing was not made due to a technical malfunction. The Veteran subsequently testified at a hearing via live video conference before the undersigned Veterans Law Judge in December 2017. A transcript of this hearing is of record. At the December 2017 videoconference hearing, the Veteran sought, and was granted, a 30-day abeyance period for the submission of additional evidence, specifically a letter from his therapist. 38 C.F.R. § 20.709 (2017). This letter was received in January 2018. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to service connection for PTSD, the Veteran testified at the December 2017 Board hearing to two stressors he experienced during his service. The first was an explosion that occurred near his face that left him with trigeminal neuralgia. This event is not documented in his service treatment records and a formal finding was made that there was insufficient information provided to verify this stressor. The second stressor the Veteran testified to was a helicopter accident that the Veteran was involved in that also left him with physical injuries. This event, which took place in 1987, is documented in the Veteran's service treatment records. Additionally, the Veteran's June 2014 Notice of Disagreement specifically pled the theory that his PTSD was related to his fear of hostile military or terrorist activity. See 38 U.S.C. §§ 501, 1154 (2012); 38 C.F.R. § 3.304(f)(3) (2017). However, the record does not contain an opinion sufficient to guide the Board in determining whether the Veteran's PTSD condition is related either to the helicopter accident or to his fear of hostile military or terrorist activity. Consequently, the Board finds that an additional opinion is required addressing those theories of entitlement. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the increased rating claims, the Veteran testified at the December 2017 Board hearing that his conditions had gotten worse since his last examination in 2013. He also testified that the conditions for which VA had effected reductions had gotten worse and not better. Consequently, the Board finds that an additional examination is warranted in order to obtain an adequate understanding of the Veteran's disability picture with regard to the conditions for which the Veteran is claiming an increase in his disability ratings or seeking to reverse reductions. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, and specifically with regard to those claims for which the Veteran seeks an increase in his disability ratings for musculoskeletal disabilities, the Veteran's last examination was conducted prior to recent jurisprudence of the United States Court of Appeals for Veterans Claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board will direct an additional examination of the Veteran's musculoskeletal disorders be performed to ensure compliance with this recent case law. Finally, with regard to the Veteran's claim for TDIU, the Board notes that the Veteran has claimed this condition based on all of his conditions when he made this claim in November 2012. Consequently, the claim of TDIU is inextricably intertwined with the other claims being remanded and cannot be decided without also deciding the other claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding/updated VA treatment records that are not already associated with the claims file that are relevant to the claims on appeal. 2. Request any information from the Veteran and conduct any necessary records development to confirm whether the places, types, and circumstances of the Veteran's service are such that the Veteran would have been exposed to situations and circumstances to produce fear of hostile military or terrorist activity. 3. After the above records development has been completed, arrange for the Veteran's claims file to be evaluated by an appropriate examiner to render an opinion as to the etiology and level of severity of the Veteran's PTSD. Specifically, the examiner should opine as to whether the Veteran's PTSD is at least as likely as not (50 percent or greater probability) caused by the Veteran's involvement in a helicopter accident or to the Veteran's fear of hostile military or terrorist activity. For this purpose "fear of hostile military or terrorist activity" means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. If it is the opinion of the examiner that this opinion cannot be rendered without an additional examination, the Veteran should be scheduled for an appropriate examination. The examiner should provide a complete rationale for each opinion given and cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Arrange for the Veteran to have an additional examination with a licensed audiologist to determine the current nature and severity of the Veteran's bilateral sensorineural hearing loss. As part of this examination, the examiner should also elicit from the Veteran information as to how his hearing loss affects his daily living. 5. Arrange for the Veteran to have an additional examination with an appropriate examiner to determine the current severity of the Veteran's left wrist, left ring finger, left hand scars, and right and left knee conditions. All necessary examinations and tests should be performed. With respect to the Veteran's conditions that affect his joints and range of motion, the examiner should fully describe the disability symptoms and impairment caused by the Veterans conditions. All relevant joints should be tested for both their active and passive ranges of motion, and the results of these tests should be recorded. The examiner should examine the relevant joints for pain throughout both active and passive range of motion, and in weight-bearing and nonweight-bearing conditions. Unless there is a medical reason to the contrary, these same tests should be conducted for the undamaged joints on the opposite side of the Veteran's body. If there is functional impairment of any of the relevant joints due to pain, an assessment of the degree of impairment should be provided. The examiner should state whether pain, weakness, or excess fatigability significantly limits functional ability during any flare-ups or when the relevant joints are used repeatedly. If these circumstances result in further limitation of the range of motion of any relevant joint, the examiner should provide an estimate of this further limitation of motion in terms of degree, to the extent that this is medically possible. If such an estimate is not possible, the examiner should explain why such an estimate is impossible to arrive at without resort to speculation. 6. After the development described in the preceding paragraphs has been completed, undertake any additional development that may be indicated as a result. Then, readjudicate the claims on appeal. If any of the benefits sought are not granted in full, provide the Veteran with a responsive supplemental statement of the case and the requisite time to respond. Once that is complete, if the claims file is otherwise in order, return the case to the Board for further appellate 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). _________________________________________________ A. ISHIZAWAR 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).