Citation Nr: 18156174 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 11-23 860 DATE: December 11, 2018 REMANDED Entitlement to an effective date earlier than December 16, 2016, for the grant of a 10 percent rating for migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a laceration on the back of head is remanded. Entitlement to a rating in excess of 10 percent for a left knee disorder is remanded. Entitlement to a compensable rating for a traumatic brain injuries (TBI) is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from May 1978 to April 1981. In February 2016 the Board of Veterans’ Appeal (Board), among other things, reopened the claims of service connection for an acquired psychiatric disorder and a left foot disorder as well as remanded those newly reopened claims as well as the claims for a left ankle disability as well as for a laceration on the back of head for additional development. In June 2018, the Veteran and his friend testified at a personal hearing before the undersigned and a transcript of that hearing has been associated with the record. All the Issues on Appeal In October 2018, the Board notified the Veteran and his representative that additional pertinent evidence was added to the record since the issuance of the November 2016 supplemental statement of the case (SSOC) and his appeal as to all his claims would be remanded unless he waived agency of original jurisdiction (AOJ) review of this evidence within 45 days. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). To date, neither the Veteran nor his representative has waived AOJ review of this evidence. Therefore, the Board finds that a remand of all the issues on appeal for the AOJ to review this evidence and issue a SSOC is required. Id. While the appeal is in remand status, the AOJ should also obtain and associate with the claims file any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). Entitlement to service connection for an acquired psychiatric disorder, a left foot disorder, a left ankle disability, and a laceration on the back of head are remanded. As to the claims of service connection for an acquired psychiatric disorder, a left foot disorder, a left ankle disability, and a laceration on the back of head, the Board finds that the opinion provided by the June 2016 VA examiner inadequate because the examiner did not specifically provide an etiology opinion as to the diagnosed psychiatric disorders. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the claims of service connection for a left foot disorder, a left ankle disability, and a laceration on the back of head, the Board finds that the opinion provided by the June 2016 VA examiner inadequate because the examiner did not provide an opinion as to direct service incurrence nor as to aggravation. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that these issues need to be remanded to provide the Veteran with new VA examinations to obtained adequate etiology opinions. See 38 U.S.C. § 5103A(d). Entitlement to a rating in excess of 10 percent for a left knee disorder is remanded. As to the claim for a rating in excess of 10 percent for a left knee disorder, the Board finds that this issues also needs to be remanded to provide the Veteran with a VA examination because the existing VA examinations, including the June 2016 VA examination, do not included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups and a comparison between the service connected joint with the non service-connected opposite joint. See 38 U.S.C. § 5103A(d); Sharp v. Shulkin, 29 Vet. App. 26 (2017). When thereafter rating the left knee disorder, the agency of original jurisdiction (AOJ) should be mindful of the United States Court of Appeals for Veterans Claims (Court) holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) regarding painful motion as well as the fact that governing regulations all separate compensable evaluations, in the same knee, for lost flexion and extension as well as subluxation or instability. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). Entitlement to a compensable rating for a TBI is remanded. As to a compensable rating for a TBI as well as the claims of worsening since the last VA examination, the Board also finds that the Veteran should be provided with a new VA examination to ascertain the current severity of his disability while the appeal is in remand status. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Entitlement to a TDIU is remanded. The Veteran at his June 2018 ph1 testified that his service-connected TBI prevented him from working. Therefore, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that the TDIU claim needs to be remanded to provide the Veteran with notice of the laws and regulations governing this claim as well as obtain from him a fully executed TDIU claim form. See 38 U.S.C. §§ 5103, 5103A; Dingess v. Nicholson, 19 Vet. App. 473 (2006). These matters are REMANDED for the following actions: 1. Provide the Veteran with notice of the laws and regulations governing TDIU claims. 2. Obtain from the Veteran a fully executed TDIU claim form. 3. Associate with the claims file any other outstanding VA treatment records. 4. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 5. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his left foot disorder, left ankle disability and laceration on the back of head as well as the severity of his service connected left knee disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following. The Service Connection Claims: a. Provide diagnoses for all left foot and left ankle disabilities. b. Provide an opinion as to whether the Veteran has any residuals from a laceration on the back of head to include any head scars. c. As to each left foot and left ankle disability as well as any residuals from a laceration on the back of head to include a scar, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s military service. d. Provide an opinion as to whether any left foot and/or left ankle arthritis manifested in the first post-service year. e. As to each left foot and left ankle disability as well as any residuals from a laceration on the back of head to include a scar, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by a service-connected disability to include the left knee disorder and the claimed falls caused by the service-connected left knee disorder and TBI. f. As to each left foot and left ankle disability as well as any residuals from a laceration on the back of head to include a scar, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was permanently aggravated beyond the normal course of the condition by a service-connected disability to include the left knee disorder and the claimed falls caused by the service-connected left knee disorder and TBI. The Rating Claim: a. The examiner should identify all left knee pathology found to be present during the pendency of the appeal. b. The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should make a comparison between the service connected joint with the nonservice-connected opposite joint as to all range of motion testing. 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. c. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. d. 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 she 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. e. 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 flexion and extension caused by functional loss during a flare-up and after repeated use over time. f. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/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). f. The examiner should also state whether there is any left knee subluxation or instability. g. Lastly, given the Veteran’s claims regarding his left knee disability frequently causing him to fall, the examiner should provide an opinion as to the likelihood that the adverse symptomatology observed during the examination, to include lost motion, subluxation, and instability, would cause falls. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of any acquired psychiatric disorder including PTSD. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following. a. Provide diagnoses for all acquired psychiatric disorders. In this regard, the examiner should specifically provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. b. As to each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s military service. c. Provide an opinion as to whether any psychosis manifested in the first post-service year. d. As to each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by a service-connected disability to include the TBI and/or the claimed falls caused by the service-connected left knee disorder and TBI. e. As to each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was permanently aggravated beyond the normal course of the condition by a service-connected disability to include the TBI and/ot the claimed falls caused by the service-connected left knee disorder and TBI. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel