Citation Nr: 1806558 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-17 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 50 percent for depressive disorder and anxiety disorder. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome. 3. Entitlement to a rating in excess of 10 percent for right hip iliotibial band syndrome with limitation of flexion. REPRESENTATION Appellant represented by: Todd S. Hammond, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1977 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the VA Regional Office (RO) in Manila, the Republic of the Philippines. Due to the location of the Veteran's residence, jurisdiction of this appeal is with the RO in Portland, Oregon. In the September 2013 rating decision on appeal, the RO granted a separate noncompensable rating for right hip iliotibial band syndrome with limitation of abduction. In his October 2013 notice of disagreement (NOD), the Veteran disagreed with the rating assigned to his right hip iliotibial band syndrome, but did not specify whether he disagreed with the limitation of flexion, abduction, or both. A November 2013 rating decision assigned a 20 percent rating, the highest available, for the limitation of abduction. The Veteran did not file a subsequent NOD with the November 2013 rating decision, and limitation of abduction has not been certified as an appeal to the Board. In light of the above, the Board concludes that, as regards the right hip iliotibial band syndrome, only the limitation of flexion is on appeal. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is part of the appeal under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, entitlement to TDIU was granted in a February 2015 of rating decision. The Veteran has not disagreed with the effective date assigned to the grant and as such, since the benefit has been granted, the Board finds the issue of TDIU is not before the Board. The Veteran was scheduled for a hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to review the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is necessary as the Veteran's complete VA treatment records during the appeal period have not been obtained. In the May 2014 statement of the case (SOC), the RO referenced reviewing records beginning in 2007. However, records obtained during this appeal only date from 2013. Therefore, a remand is necessary to ensure that the Veteran's complete treatment records during the appeal period are of record. Furthermore, a copy of the Veteran's September 2012 claim is not of record; on remand, such should be added to the claim file, if available. Additionally, the Veteran was provided VA examinations in 2013. As regards his right knee and hip, in consideration of recent case law, the Board finds that the knee and hip conditions examination is inadequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examination report does not present all of the necessary findings. On remand, the Veteran should be afforded a new VA examination for these disabilities. As for his psychiatric disability, although he has not reported a worsening of symptoms since 2013, in light of a remand being necessary regardless, it would be beneficial to provide the Veteran with a new VA examination to ascertain the current level of this disability as well. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. The request should include non-electronic and/or archived paper records that have been scanned into the VA electronic health record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. Afford the Veteran a new VA mental health examination with a psychiatrist or psychologist who has reviewed the claim file. This examiner must address all subjective complaints and objective symptoms of depressive disorder and anxiety disorder and must include commentary of the extent to which depressive disorder and anxiety disorder affects occupational and social functioning. All findings and opinions must be included in a typewritten report. 3. Afford the Veteran a new VA orthopedic examination with an examiner who has reviewed the claim file. This examiner must address all subjective complaints and objective symptoms of the right knee patellofemoral syndrome and the right hip iliotibial band syndrome with limitation of flexion. All findings and opinions must be included in a typewritten report. The examiner should: i) Address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain for both the right knee and hip. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing, and nonweight-bearing, compared with the left knee and hip. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner should note the presence and extent of any ankylosis of the right knee and/or right hip. ii) For the right knee, the examiner should also elicit information as to the frequency, duration, and severity of any associated symptomatology, to include specifically recurrent subluxation or lateral instability; dislocated semilunar cartilage with episodes of locking, pain, and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula (nonunion or malunion); and genu recurvatum. iii) For the right hip, the examiner should also elicit information as to any associated symptomatology, to include impairment of the thigh (limitation of adduction and rotation); flail joint of the hip; and impairment of the femur. 4. The AOJ should then review the record and readjudicate the issues on appeal. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).