Citation Nr: 18159705 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-06 464 DATE: December 19, 2018 ORDER As new and material evidence has been received, the Veteran’s claim for entitlement to service connection for a left knee disability to include as secondary to a right knee disability is reopened. As new and material evidence has been received, the Veteran’s claim for entitlement to service connection for headaches is reopened. REMANDED Entitlement to service connection for a left knee disability to include as secondary to service-connected right knee disability is remanded. Entitlement to service connection for headaches to include as secondary to a service-connected cervical spine disability is remanded. Entitlement to service connection for a mid-back (thoracic spine) disability is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disability (other than PTSD) to include anxiety and depression is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A February 1992 rating decision denied the Veteran entitlement to service connection for a left knee disability. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since February 1992, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left knee disability. The evidence includes VA examinations of the Veteran’s knees identifying a current left knee disability as well as the Veteran’s lay statements that his worsening right knee disability has caused or aggravated his current left knee disability. 3. In an October 1999 decision, the Board denied the Veteran’s claim of entitlement to service connection for headaches. The Veteran did not file a motion for reconsideration or appeal the denials. 4. Some of the evidence received since October 1999, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for headaches. This evidence includes VA treatment records documenting treatment including medication for headaches and the Veteran’s statements that his headaches are aggravated by flare-ups of his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The February 1992 rating decision, which denied the Veteran’s claim of entitlement to service connection for a left knee disability, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the February 1992 rating decision is new and material, and the claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The October 1999 Board decision, which denied the Veteran’s claim of entitlement to service connection for headaches, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 4. The evidence received since the October 1999 Board decision is new and material, and the claim of entitlement to service connection for headaches is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS FOR REMAND The Veteran served on active duty from June 1981 through May 1991. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). After the Agency of Original Jurisdiction (AOJ) last adjudicated these matters in the December 2016, VA obtained additional VA treatment records pertinent to the Veteran’s claims. On remand, the AOJ should readjudicate the claims based on the totality of the evidence and issue a supplemental statement of the case after necessary development is complete. On the Veteran’s January 2017 substantive appeal form, the Veteran’s representative requested that the Board remand these matters for additional VA examinations. The representative contends the December 2012 VA knee examination is inadequate because the examiner indicated that the examiner did not review the claims file. The representative contends the June 2013 VA back examination is inadequate because the Veteran is claiming entitlement to service connection for a mid-back (thoracic) spine disability, and the VA examiner’s negative nexus opinion only addresses the lower back. Additionally, the June 2013 VA back examiner did not address reports of back pain in the Veteran’s service treatment records. See, e.g., September 1984 service treatment records. The representative also requested that VA obtain an opinion on whether the Veteran’s headaches are caused or aggravated by his service-connected cervical spine disability. On remand, the AOJ should obtain appropriate VA examinations addressing these concerns. Regarding the claims of entitlement to service connection for PTSD and additional acquired psychiatric disorders, the Veteran submitted a timely notice of disagreement with a September 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As the issue of entitlement to TDIU is intertwined with these matters, the AOJ should reajudicate entitlement to TDIU as well. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should obtain additional examinations of the Veteran’s thoracolumbar spine, knees, and headaches. The AOJ should ensure that the examiners are provided with completed copies of the claims file to include this remand order, and the AOJ should ensure that the examiners note they have reviewed the file. The AOJ should also ensure that the examiners follow these directives: (a.) The VA examiners should identify all current disabilities associated with the Veteran’s thoracolumbar spine, knees, and all disabilities associated with headaches. (b.) For each current disability identified, the examiners should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include reports of back pain, knee symptoms (e.g. pain, locking, and swelling), and headaches documented in the Veteran’s service treatment records. The examiner should explain why or why not. (c.) For each current disability identified, the examiners should opine whether the disability was at least as likely as not permanently worsened beyond normal progression (aggravated) by the Veteran’s service-connected disabilities to include a cervical spine disability and a right knee disability. (d.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 3. After completing the above action and any other necessary development, the claims must be readjudicated. The AOJ should ensure that a Statement of the Case has been issued for each matter remanded by the Board. If a Statement of the Case already exists on an issue and the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, all remaining appealed issues must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel