Citation Nr: 18158948 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-06 393 DATE: December 19, 2018 REMANDED Entitlement to service connection for left lower extremity disability other than left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for psychiatric disability (including posttraumatic stress disorder (PTSD)), to include as secondary to service-connected disability, is remanded. Entitlement to an initial rating higher than 10 percent for left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2008 to November 2008. He had additional service with the Army National Guard, to include a period of active duty for training from November 2007 to April 2008. These matters initially came before the Board of Veterans’ Appeals (Board) from a May 2011 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a May 2013 hearing and a transcript of the hearing has been associated with his claims file. In May 2014, the Board remanded these matters for further development. In June 2017, the Board denied service connection for right knee disability, left leg disability, and psychiatric disability and an initial rating higher than 10 percent for the Veteran’s service-connected left knee disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Court set aside the Board’s June 2017 decision, in part, and remanded the case for readjudication in compliance with directives specified in an April 2018 Joint Motion filed by counsel for the Veteran and VA. The Joint Motion did not pertain to the Board’s denial of service connection for right knee disability. As a final preliminary matter, in light of the Veteran’s reported symptoms and contentions, in light of the fact that service connection has already been awarded for left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the left leg claim on appeal as a claim of service connection for left lower extremity disability other than left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). 1. Entitlement to service connection for left lower extremity disability other than left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture, to include as secondary to service-connected disability, is remanded. The Veteran was afforded VA neurological and hip examinations in May 2015 and was diagnosed as having left lower extremity peroneal neuropathy and left hip strain. The physician who conducted these examinations did not provide any opinions as to the etiology of these diagnosed left lower extremity disabilities. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for left lower extremity disability other than left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture because no VA examiner has opined whether any such disability was incurred in service or caused or aggravated by service-connected left knee disability. Hence, an appropriate medical opinion should be obtained upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Philadelphia, Pennsylvania and are dated to May 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for psychiatric disability (including PTSD), to include as secondary to service-connected disability, is remanded. The Veteran contends that he has current psychiatric disability that was incurred in service. Specifically, he contends that he has been depressed since shortly following his separation from service and that his psychiatric disability is related to his inability to remain in service due to his knee disability. He was afforded a VA psychiatric examination in June 2014 and was diagnosed as having unspecified depressive disorder with anxious distress. The psychologist who conducted the examination opined in the June 2014 examination report and a December 2014 addendum that the Veteran’s psychiatric disability was not likely caused by service or his service-connected left knee disability. The parties to the Joint Motion agreed that the June and December 2014 opinions do not address the Veteran’s contention that his claimed psychiatric disability is related to his premature separation from service due to his left leg impairments. The Board also points out that the June 2014 examiner did not provide any opinion as to whether the Veteran’s claimed psychiatric disability was aggravated by his service-connected left knee disability. See 38 C.F.R. § 3.310. Moreover, the Veteran raised a claim of service connection for PTSD on a June 2016 “Application for Disability Compensation and Related Compensation Benefits” form (VA Form 21-562EZ). He also submitted a stressor statement (VA Form 21-0781) in June 2016, on which he noted a stressor that occurred during his National Guard service. The Veteran’s PTSD claim should be adjudicated in the first instance by the agency of original jurisdiction (AOJ), to include stressor development. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for psychiatric disability because no VA examiner has adequately opined whether the Veteran’s claimed psychiatric disability was incurred in service or caused or aggravated by service-connected disability. In light of this fact and the fact that the June 2014 VA psychiatric examination did not address whether the Veteran has PTSD, an appropriate VA examination should be conducted upon remand. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to an initial rating higher than 10 percent for left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture is remanded. The Veteran was most recently afforded a VA examination in May 2017 regarding his service-connected left knee disability. As noted by the parties to the Joint Motion, however, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination report does not contain passive range of motion measurements or information pertaining to pain on both weight-bearing and non weight-bearing testing. Moreover, although the Veteran reported flare ups of left knee symptoms and knee pain significantly limited functional ability with repeated use over time, the May 2017 examiner did not provide any opinion as to the extent of any additional functional impairment of the knee (in terms of degrees of limited motion) during flare ups or with repeated use over time. The examiner only explained that such an opinion was not possible because the Veteran avoided activities that caused pain. Hence, the Veteran should be afforded a new VA knee examination upon remand. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to describe, with as much specificity as possible, any stressors in service that he believes have contributed to his claimed psychiatric disability. For each claimed stressor, he should describe the event, the location, the date (within a two-month period, if possible), and the unit he was attached to at the time of the event. If the Veteran provides sufficient information for any reported stressor(s), attempt to corroborate his in-service stressor(s). If more details are needed, contact the Veteran to request the information. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for left lower extremity disability (including left knee disability) and psychiatric disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for left lower extremity disability (including left knee disability) and psychiatric disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records from the VAMC in Philadelphia, Pennsylvania for the period since May 2017; and all such relevant records from any other sufficiently identified VA facility. 4. After the Veteran’s reported stressors have been developed and all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current psychiatric disability, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran has experienced any other acquired psychiatric disability since approximately August 2010, the examiner must opine whether each diagnosed disability at least as likely as not (1) began during active service; (2) is related to an in-service injury, event, or disease, including the Veteran’s premature separation from service due to left leg impairments and any reported stressor in service; (3) is caused by service-connected left knee disability; or (4) is aggravated by service-connected left knee disability. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associated with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any left lower extremity disability (other than left knee torn medial meniscus with osteoarthritis and residuals of a tibia/fibula fracture) experienced by the Veteran since approximately August 2010 (including, but not limited to, left lower extremity peroneal neuropathy and left hip strain) at least as likely as not (1) began during active service; (2) manifested within one year after separation from service (in the case of any currently diagnosed arthritis or organic disease of the nervous system; (3) is related to an in-service injury, event, or disease, including the Veteran’s left leg problems documented in his service treatment records; (4) is caused by service-connected left knee disability; or (5) is aggravated by service-connected left knee disability. The clinician must provide reasons for each opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician of the current severity of his service-connected left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left knee and right knee. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left knee disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare up. The examiner must provide reasons for any opinion given. D.C. SPICKLER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel