Citation Nr: 18155954 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-03 020 DATE: December 6, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include secondary to service-connected disabilities is remanded. Entitlement to an increased rating in excess of 10 percent for right knee retropatellar pain syndrome with degenerative changes is remanded. Entitlement to an increased rating in excess of 10 percent for left knee retropatellar pain syndrome with degenerative changes is remanded. Entitlement to an increased rating in excess of 10 percent for right shoulder bursitis is remanded. Entitlement to an increased rating in excess of 40 percent for thoracolumbar spine degenerative disc disease is remanded. Entitlement to an increased rating in excess of 10 percent for right ankle sprain with degenerative joint disease is remanded. Entitlement to an increased rating in excess of 10 percent for left ankle sprain with degenerative joint disease is remanded. Entitlement to a compensable rating for bilateral pes planus is remanded. Entitlement to an increased rating in excess of 30 percent for hypothyroidism is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to September 2004. In January 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Entitlement to service connection for an acquired psychiatric disorder, to include secondary to service-connected disabilities is remanded. The Veteran contends he has a mental disability as a result of his military service, either directly, presumptively or secondarily owing to his service-connected disabilities (meaning caused or being aggravated by them). While the regional office (RO) adjudicated this claim as exclusively for service connection for posttraumatic stress disorder (PTSD), the Board has expanded the claim to include more generally any acquired psychiatric disorder, however diagnosed, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Regrettably, however, this claim requires further development, so the Board is REMANDING it to the Agency of Original Jurisdiction (AOJ). Importantly, in the September 2009 rating decision, the RO denied the Veteran’s claim for service connection for PTSD, in part, due to an August 2008 VA examination report noting him with PTSD in remission (no then current PTSD diagnosis). However, the August 2008 VA examination report also noted the Veteran with a diagnosis of dysthymia secondary to medical problems and then current life circumstances. More recently, a May 2017 VA Gulf War Syndrome protocol examination noted the Veteran’s treatment for a mood disorder and insomnia due to pain. The Veteran has not been afforded a VA examination encompassing any acquired psychiatric disorder, including especially identifying all diagnoses and their etiologies, and indicating whether any are attributable to his military service – either directly, presumptively or secondarily, again meaning caused or being aggravated by service-connected disabilities. This additional development is needed before deciding his claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Increased-rating claims for right knee retropatellar pain syndrome with degenerative changes, left knee retropatellar pain syndrome with degenerative changes, right shoulder bursitis, thoracolumbar spine degenerative disc disease, right ankle sprain with degenerative joint disease, and left ankle sprain with degenerative joint disease, are remanded. The Veteran contends that his service-connected bilateral (left and right) knee, bilateral ankle, lumbar spine, and right shoulder disabilities warrant higher disability ratings. The most recent examinations provided to assess the severity of these service-connected disabilities were in March 2014, so some 3½ years ago. And aside from that length of time, the examinations do not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016). More specifically, the examinations do not contain passive range of motion measurements/pain on weight-bearing testing. In addition, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups or after repetitive movement. As such, on remand, the Veteran should be provided additional examinations to determine the current severity of his service-connected bilateral knee, bilateral ankle, lumbar spine, and right shoulder disabilities that comport with the holdings in Correia and Sharp. Entitlement to a compensable rating for bilateral pes planus is remanded. The Veteran's last VA compensation examination of his bilateral pes planus disability (flat feet) also was in March 2014. He has had no subsequent examinations reassessing the severity of this disability. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995). (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). There is evidence in the record suggestive of worsening symptomatology, including since that last VA compensation examination. During his January 2016 Board hearing, the Veteran testified that he experiences pain in his feet making walking difficult. The March 2014 VA examination does not note the Veteran with feet pain; rather, it notes him as having no extreme tenderness of the plantar surface on either foot. Thus, after considering the medical evidence and the Veteran's hearing testimony indicating that his service-connected disability has worsened, and in light of the amount of time since the last VA examination and the possible increase in severity of this disability since, re-examination is needed. Entitlement to an increased rating in excess of 30 percent for hypothyroidism is remanded. The Veteran's last VA compensation examination of his hypothyroidism disability also was in March 2014. He has had no subsequent examinations reassessing the severity of this disability. To reiterate, while the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995). (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). There is evidence in the file suggestive of worsening symptomatology, including since that last VA compensation examination. During his January 2016 Board hearing, the Veteran testified that he experiences chronic fatigue, dry skin, sleep impairment, and has gained more than 100 pounds owing to the consequent effects of this service-connected disability. The March 2014 VA examination notes that the examiner was unable to see evidence of dry skin on the Veteran’s scalp and left posterior shoulder. Importantly, the March 2014 VA examination did not attribute the Veteran’s weight gain to his hypothyroidism. Rather, the examiner simply noted the Veteran’s inability to exercise due to his back and knee disabilities. The Veteran submitted a private Disability Benefits Questionnaire (DBQ), which noted the Veteran with fatigue, constipation, cold intolerance, dry skin, morbid obesity, and numbness in the posterior legs and feet, importantly, however, which the evaluating physician attributed to the Veteran’s hypothyroidism. Thus, after considering the medical evidence and the Veteran's hearing testimony indicating that his service-connected disability has worsened, and in light of the amount of time since the last VA examination and the possible increase in severity of this disability, re-examination is needed.   Entitlement to a TDIU is remanded. This remaining claim of entitlement to a TDIU is "inextricably intertwined" with the other claims (especially those for higher ratings of already service-connected disabilities) and, therefore, must be deferred pending resolution of those other claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, as the Board is remanding these claims, all of them, for further development, the AOJ should also obtain the records of all relevant treatment [VA and private] the Veteran has received (the records of which have not already been obtained, so they, too, may be considered). See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). These matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain all outstanding treatment records, to include any VA and/or private treatment records if relevant to this appeal. Steps to obtain and associate these records should be documented in the claim file. If identified records cannot be obtained, this also should be noted in the claim file and the Veteran appropriately notified. 2. After receiving all additional treatment records, schedule the Veteran for a VA examination for an opinion concerning the etiology of his acquired psychiatric disorder – irrespective of particular diagnosis. To this end, the examiner is asked to (1) first identify, by diagnosis, all of the Veteran's psychiatric disorders, and (2) for each existing disorder, provide an opinion concerning whether it is at least as likely as not (i.e., a 50 percent or greater probability) the disorder was caused by the Veteran's active duty service, either directly, presumptively or secondarily, meaning caused OR aggravated by his service-connected disabilities. In responding, the examiner is asked to address the August 2008 VA examination report indicating the Veteran suffers from dysthymia secondary to his medical problems. Specifically, what, if any, service-connected disabilities are included in these “medical problems”. Also, when responding, the examiner must provide explanatory rationale, preferably citing to evidence in the file supporting conclusions and/or medical authority. 3. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his bilateral knee, bilateral ankle, lumbar spine, and right shoulder disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all bilateral knee, bilateral ankle, lumbar spine, and right shoulder disabilities found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination to reassess the severity of his bilateral pes planus disability. His claims file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's bilateral pes planus disability. The examiner should also address all functional impairment caused by this disability. All findings must be reported in detail and all opinions accompanied by supporting rationale. 5. Schedule the Veteran for a VA examination to reassess the severity of his hypothyroidism disability. His claims file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran's hypothyroidism disability. The examiner should also address all functional impairment caused by this disability. All findings must be reported in detail and all opinions accompanied by supporting rationale. Keith W. Allen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel