Citation Nr: 1805724 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-16 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right total knee arthroplasty residuals of a shell fragment wound. 2. Entitlement to a rating in excess of 50 percent (prior to June 12, 2008) and a rating in excess of 70 percent (from June 12, 2008) for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial rating in excess of 10 percent (prior to May 27, 2011) and an initial rating in excess of 30 percent (from May 27, 2011) for coronary artery disease, status post myocardial infarction. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1965 to April 1969 and from April 1976 to April 1980. He had meritorious combat service in the Republic of Vietnam and was awarded the Purple Heart and the Combat Action Ribbon. The matter of entitlement to service connection for a left knee disability is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which (in pertinent part) denied service connection for that disability. In April 2011, October 2013, and December 2016, the Board remanded this issue for additional development. The matter of entitlement to higher ratings for PTSD is before the Board on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was originally before the Board on appeal from a May 2008 rating decision of a VA RO, which (in pertinent part) granted an increased rating of 50 percent for PTSD, effective October 13, 2007. [Thereafter, an April 2009 rating decision granted an increased rating of 70 percent for PTSD, effective June 12, 2008. Because that award did not represent a total grant of benefits sought on appeal, the claim for increase remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993).] Following remand for additional development in April 2011, the Board issued a decision in October 2013 that (in pertinent part) granted an increased rating of 70 percent for PTSD for the entire period of claim (i.e., from October 13, 2007), and denied a rating in excess of 70 percent for PTSD at any time during the period of claim. In January 2015, the Court issued a Mandate that (in pertinent part) vacated the October 2013 Board decision with regard to that issue, and remanded that matter for readjudication consistent with instructions outlined in its January 2015 Memorandum Decision. In September 2015 and December 2016, the Board remanded this issue [recharacterized to once again reflect the stages originally on appeal - i.e., entitlement to a rating in excess of 50 percent (prior to June 12, 2008) and a rating in excess of 70 percent (from June 12, 2008) for PTSD] for additional development. The matter of entitlement to higher initial ratings for coronary artery disease, status post myocardial infarction, is before the Board on appeal from a July 2011 rating decision of a VA RO, which granted service connection for that disability and assigned an initial rating of 10 percent, effective October 13, 2007, followed by an initial rating of 30 percent, effective May 27, 2011. In September 2015 and December 2016, the Board remanded this issue for additional development. The case has now been assigned to the undersigned Veterans Law Judge. The Veteran had also initiated appeals of denials of service connection for erectile dysfunction, for psoriasis, and for a bleeding ulcer. After the Board remanded these claims, a November 2015 rating decision granted service connection for erectile dysfunction, for psoriasis, and for a bleeding ulcer. Consequently, these matters are not before the Board. In February 2016, the Veteran filed a notice of disagreement (NOD) appealing the initial ratings and effective dates assigned for the award of service connection for psoriasis, as well as the initial rating assigned for the award of service connection for bleeding ulcer, in the November 2015 rating decision. Thereafter, the RO took action in accordance with 38 C.F.R. § 19.26(a) by sending him an appeals election letter in July 2016 and in September 2016, acknowledging receipt of his February 2016 NOD in both letters. The RO is currently developing these issues to allow for issuance of a statement of the case addressing these issues, and such action precludes the need for the Board to remand the matters for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for the claims on appeal. Regarding the matter of entitlement to service connection for a left knee disability, the record reflects that the Veteran underwent a left total knee arthroplasty (TKA) in January 2013. On remand, all records pertaining to this surgery must be obtained. [These records were previously requested pursuant to the Board's October 2013 remand, but the October 2013 remand instructions listed the incorrect year (2012, instead of 2013) for the Veteran's left knee surgery, so a new request is needed.] In addition, the medical opinion provided by the November 2017 VA knee examiner did not adequately respond to the Board's October 2013 and December 2016 remand instructions. Specifically, the November 2017 VA examiner did not consider the Veteran's combat service in Vietnam when providing the opinion regarding direct service connection, and the examiner also did not consider whether the Veteran's left knee disability was aggravated (i.e., increased in severity beyond the natural progression of the disability) by his service-connected right knee disability when providing the opinion regarding secondary service connection, which had been explicitly requested by the Board's remand instructions. On remand, an addendum medical opinion must be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Regarding the matter of entitlement to higher ratings for PTSD, the Veteran reported at his September 2017 VA psychiatric examination that he had been seeing a psychiatrist for treatment and that he had now moved into a group for PTSD at Port St. Lucie (a VA clinic). The most recent treatment reports of record from this VA clinic are dated in August 2017 (and such records do not pertain to his PTSD group therapy). On remand, all updated VA treatment records must be obtained. In addition, the medical opinions provided by the September 2017 and November 2017 VA psychiatric examiners did not adequately respond to the Board's September 2015 and December 2016 remand instructions. Specifically, while both VA examiners opined that the Veteran had a diagnosis of PTSD and that his current depressive symptoms were part of this PTSD diagnosis (and not a separate depressive disorder), neither examiner identified the other Axis I diagnoses that were present during the period of claim (i.e., major depressive disorder and anxiety disorder not otherwise specified, which were both noted in multiple VA treatment records dating since September 2012) and whether those diagnoses were distinguishable from PTSD, which had been explicitly requested by the Board's remand instructions. On remand, an addendum medical opinion must be obtained. See Stegall, 11 Vet. App. at 268, 271. Regarding the matter of entitlement to higher initial ratings for coronary artery disease, status post myocardial infarction, the Veteran underwent a VA heart examination in November 2017, but the VA heart examiner did not adequately respond to the Board's September 2015 and December 2016 remand instructions. Specifically, the VA examiner did not make any reference to a March 2009 VA treatment record (which had noted a METs level of 4 to 7 for the Veteran) and did not provide a more definitive METs level or explain how the conclusion was reached, which had been explicitly requested by the Board's remand instructions. On remand, an addendum medical opinion must be obtained. See Stegall, 11 Vet. App. at 268, 271. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records pertaining to the Veteran's January 2013 left knee TKA surgery, as well as updated VA treatment records from August 2017 to the present (including all records of his PTSD group therapy at the Port St. Lucie VA clinic). 2. After completing the development requested in item 1, forward the claims file, to include a copy of this remand, to a clinician with appropriate expertise for an addendum medical opinion as to the nature and etiology of the Veteran's current left knee disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the claims file, the reviewing clinician should provide an opinion on the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability was incurred in, related to, or caused by any incident of his military service (to include his combat service in Vietnam)? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability was caused by his service-connected right knee disability? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability is aggravated beyond the natural progression of the disability by his service-connected right knee disability? (Aggravation is any increase in severity beyond the natural progression of the disability.) The reviewing clinician should provide a complete rationale for any opinion provided. If the reviewing clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, forward the claims file, to include a copy of this remand, to a clinician with appropriate expertise for an addendum medical opinion addressing all Axis I psychiatric diagnoses noted during the period of the Veteran's claim for higher ratings for PTSD. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the claims file, the reviewing clinician should provide an opinion on the following questions: (a) Identify all valid Axis I diagnoses present at any time since the pendency of the claim (including major depressive disorder and anxiety disorder not otherwise specified, which were both noted in multiple VA treatment records dating since September 2012). (b) Indicate whether there are any Axis I diagnoses that are distinguishable from the Veteran's service-connected PTSD. (c) If the Veteran is found to have a psychiatric disability that is separate and distinguishable from PTSD: (i) Is it at least as likely as not (50 percent probability or greater) that such disability was incurred in, related to, or caused by any incident of his military service (to include his combat service in Vietnam)? (ii) Is it at least as likely as not (50 percent probability or greater) that such disability was caused by his service-connected PTSD? (iii) Is it at least as likely as not (50 percent probability or greater) that such disability is aggravated beyond the natural progression of the disability by his service-connected PTSD? (Aggravation is any increase in severity beyond the natural progression of the disability.) The reviewing clinician should provide a complete rationale for any opinion provided. If the reviewing clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in item 1, forward the claims file, to include a copy of this remand, to a clinician with appropriate expertise for an addendum medical opinion addressing a March 2009 VA treatment record which noted a METs level of 4 to 7 for the Veteran during the period of his claim for higher initial ratings for coronary artery disease, status post myocardial infarction. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the claims file, the reviewing clinician should discuss the March 2009 VA treatment record which noted a METs level of 4 to 7 for the Veteran, and should provide a more definitive METs level, if possible, and explain how the conclusion is reached. The reviewing clinician should provide a complete rationale for any opinion provided. If the reviewing clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for a left knee disability, entitlement to higher ratings for PTSD, and entitlement to higher initial ratings for coronary artery disease, status post myocardial infarction. If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).