Citation Nr: 1805960 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-15 568 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability other than chronic adjustment disorder, to include Major Depressive Disorder and/or posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability. 2. Entitlement to an evaluation in excess of 20 percent for service-connected right shoulder tendonitis. 3. Entitlement to an evaluation in excess 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction. 4. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia or the right knee, status post anterior cruciate ligament reconstruction (hereinafter, right knee disability). REPRESENTATION Veteran represented by: Colin E. Kemmerly, attorney ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the appeal was subsequently transferred to the St. Petersburg, Florida, RO, from which it was received by the Board. . In December 2015, the Board remanded the issues currently on appeal for further evidentiary and procedural development. The Board's prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be further addressed below. These issue have been returned to the Board for further appellate proceedings. Characterization of an issue on appeal In the Veteran's May 2010 claim, he stated that wished to file claims seeking service connection for PTSD and "depression." Throughout the pendency of the appeal, these issues were developed and adjudicated separately. However, in the Board's December 2015 remand, the issues were merged under the United States Court of Appeals for Veterans Claims' (the Court's) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and the issue was expanded to include all acquired psychiatric disabilities which may have been present during the pendency of the appeal, to include PTSD and Major Depressive Disorder. Subsequent to the Board's December 2015 remand, the AOJ established service connection for chronic adjustment disorder in a May 2017 rating decision. As the Veteran has not, to the date of this remand, expressed disagreement with the assigned initial evaluation or effective date, that issue is not currently in appellate status. Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105 (a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). However, in Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that, in certain circumstances, a Veteran may be separately service connected and compensated for more than one diagnosed psychiatric conditions without offending VA's anti-pyramiding regulations, 38 C.F.R. § 4.14. As such, this issue has not been granted to the fullest extent allowable under the law, and it remains in appellate status with regard to the issues of Major Depressive Disorder and PTSD. See e.g., AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The issue has been recharacterized as stated on the title page to reflect that AOJ's allowance and distinguish that disability from those remaining on appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate his appeal under the applicable laws. Acquired psychiatric disability In the December 2015 remand, the Board directed that the Veteran must be provided a VA psychiatric examination to determine the etiology of any acquired psychiatric disability that has been diagnosed during the pendency of the appeal (since May 2010). In response to this directive, the AOJ provided the Veteran with a PTSD examination which clarified the prior diagnoses of PTSD and provided that the Veteran's chronic adjustment disorder was secondary to his service-connected low back disability. However, the VA examiner did not comment on the current existence and/or etiology of Major Depressive Disorder, to include an explanation if the prior diagnoses of this disability, dating back to the Veteran's service, were accurate and/or merely the description of a psychiatric symptom rather than a separate diagnosis. To this extent, the Board's prior remand directive regarding this issue has not been substantially completed, necessitating a remand. 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); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In light of above, the portion of this issue relating to the diagnosis of Major Depressive Disorder must be remanded for further development. While the Board could bifurcate this matter and adjudicate the issue concerning PTSD, the Federal Circuit and the Court have both held that such piecemeal litigation is to be avoided in the interest of Federal efficiency. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Holland v. Brown, 6 Vet. App. 443, 446 (1994). As such, the Board is remanding the entirety of this issue to obtain medical opinions necessary to adjudicate the issue, wholly. Issues seeking increased evaluations The Veteran was most recently provided VA examinations to determine the severity and frequency of the manifestations of his service-connected diabetes mellitus, type II, with erectile dysfunction, right shoulder tendonitis, and right knee disability, in July 2010 - more than seven years ago. While the Board's December 2015 remand directives specifically noted that examinations concerning these service-connected disabilities should be scheduled and undertaken, these actions were not undertaken. The Veteran has submitted significant VA and private treatment records showing that these disabilities have increased in severity since July 2010. Further, the Court has consistently held that examinations this old are not adequate to effectively evaluate service-connected disabilities. As such, these issues must be remanded for adequate and contemporaneous VA medical examinations which describe the current severity and frequency of the manifestations of each disability, as the Board's prior remand directive regarding this development was not substantially completed. See Stegall, D'Aries, and Dyment, all supra. As these issue must be remanded for other matters, updated VA and private treatment records pertaining to the issues remanded, herein, must be obtained and associated with the file so that the subsequent VA examination can provide opinions based on the Veteran's physical and psychiatric state throughout the pendency of the appeal. Accordingly, the case is REMANDED for the following actions: 1. The AOJ must contact the Veteran and request that he complete a release for any post-service treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 2. The AOJ must obtain and associate with the file all records of VA treatment from the New Orleans VA Medical Center (VAMC) and all related facilities dated after June 7, 2017. 3. Thereafter, the AOJ must return the Veteran's electronic file to the VA psychologist who conducted the February 2017 PTSD examination. After another review of the complete record, the examiner is requested to address the following: a. Are the criteria for a diagnosis of Major Depressive Disorder met at any time since May 2010? b. If the response to (a) is positive, provide a statement concerning whether this diagnosis is at least as likely as not proximately due to or the result of any incident of the Veteran's service, to include the in-service notation of depression. c. If the response to (a) is positive, provide a statement concerning whether this diagnosis is at least as likely as not caused by any of the Veteran's service-connected disabilities. d. If the response to (a) is positive, provide a statement concerning whether this diagnosis is at least as likely as not aggravated by any of the Veteran's service-connected disabilities. e. If the response to (a) is negative, provide a statement concerning which explains whether the in-service and post separation notations of "depression" were diagnoses rendered in error, or whether these notations were describing a symptom of another diagnosed psychiatric disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. * If the February 2017 VA examiner is unavailable, another VA psychologist or psychiatrist should be requested to review the Veteran's complete file and provide the requested opinions. If it is felt that another VA psychiatric examination is necessary to undertake this remand directive, such should be scheduled and the Veteran should be notified of the time and place to report in the normal course of business. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected right shoulder tendonitis. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected right shoulder tendonitis. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected diabetes mellitus, type II, with erectile dysfunction. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected diabetes mellitus, type II, with erectile dysfunction. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected right knee disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected right knee disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 7. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further 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). This claim 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).