Citation Nr: 1807802 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-28 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether the reduction of a disability rating for left carpel tunnel syndrome from 30 percent to noncompensable, effective June 1, 2011, was proper. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a depressive disorder, to include as secondary to service-connected disabilities. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disability, to include as secondary to service-connected right knee disabilities. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities. 5. Entitlement to a disability rating in excess of 30 percent for left carpel tunnel syndrome. 6. Entitlement to a compensable disability rating for right carpel tunnel syndrome prior to May 6, 2013, and in excess of 10 percent thereafter. 7. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella, medial meniscus tear, and chondromalacia of the right knee medial femoratibial cartilage. 8. Entitlement to a disability rating in excess of 10 percent for right knee tibial fracture. 9. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral dysfunction, secondary to a right knee disability. 10. Entitlement to service connection for a depressive disorder, to include as secondary to service-connected disabilities. 11. Entitlement to service connection for a right hip disability, to include as secondary to service-connected right knee disabilities. 12. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities. 13. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2005 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which proposed a reduction from 30 percent to noncompensable for left carpel tunnel syndrome, claimed as bilateral dextral; continued a noncompensable rating for right carpal tunnel syndrome, claimed as bilateral dextral; continued a 10 percent rating for right knee chondromalacia patella, medial meniscus tear, and chondromalacia of the right knee medial femoratibial cartilage, claimed as a right knee condition; continued a 10 percent rating for right knee tibial fracture; continued a 10 percent rating for left knee patellofemoral dysfunction; reopened a service connection claim for depressive disorder as secondary to a right knee condition, but continued to deny the claim on the merits; reopened a service connection claim for a right hip condition as secondary to a right knee condition, but continued to deny the claim on the merits; reopened a service connection claim for a lumbar spine condition as secondary to a right knee condition, but continued to deny the claim on the merits; and denied entitlement to individual unemployability. This matter also comes to the Board from a March 2011 rating decision which implemented a rating reduction for bilateral carpel tunnel syndrome from 30 percent to noncompensable. The Veteran filed a timely notice of disagreements (NODs) in October 2010 and April 2011. The Board notes that jurisdiction has remained with the regional office in San Juan, Puerto Rico. Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of entitlement to service connection for a depressive disorder, right hip, and lumbar spine disabilities, to include as secondary to service-connected disabilities, before addressing the claim on its merits. See 38 U.S.C. § 7104 (2012); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran filed a VA Form 9 in June 2011 and requested a hearing. In a July 2011 VA Form 21-4138, the Veteran requested to cancel her scheduled hearing. In a November 2011 VA Form 9, the Veteran again requested a hearing. In an August 2012 VA Form 21-4138, the Veteran requested to cancel her scheduled hearing. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (2017) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). In November 2013, and during the pendency of the appeal, the RO granted increased ratings for right and left carpel tunnel syndrome, to 10 percent disabling each. As this does not represent a maximum grant of benefits sought on appeal, the Board will review these staged ratings. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issues of entitlement to a disability rating in excess of 30 percent for left carpel tunnel syndrome; a compensable disability rating for right carpel tunnel syndrome prior to May 6, 2013, and in excess of 10 percent thereafter; a disability rating in excess of 10 percent for right knee chondromalacia patella, medial meniscus tear, and chondromalacia of the right knee medial femoratibial cartilage; a disability rating in excess of 10 percent for right knee tibial fracture; a disability rating in excess of 10 percent for left knee patellofemoral dysfunction, secondary to a right knee disability; service connection for a depressive disorder, to include as secondary to service-connected disabilities; service connection for a right hip disability, to include as secondary to service-connected right knee disabilities; service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities; and to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left carpel tunnel syndrome was evaluated at 30 percent disabling, effective November 18, 2008. 2. In March 2011, the RO reduced the Veteran's evaluation for left carpel tunnel syndrome from 30 percent to noncompensable, effective June 1, 2011. 3. The evidence of record reflects that the evidence considered by the RO in the rating decision did not include a September 2010 letter by the Veteran's treating clinician. 4. In December 2007, the RO denied service connection for a depressive disorder, to include as secondary to service-connected disabilities, on the basis that there were no psychiatric complaints or treatment prior to, during, or within one year of active service and no evidence that the depressive disorder was related to a service-connected right knee disability. The Veteran did not file a notice of disagreement; therefore, the decision became final. 5. Evidence received since the December 2007 rating decision raises a reasonable possibility of substantiating the underlying claim of service connection for a depressive disorder, to include as secondary to service-connected disabilities, and therefore is material evidence. 6. In a December 2007 rating decision, the RO denied service connection for a right hip disability, to include as secondary to service-connected right knee disabilities, on the basis that there were no complaints of or treatment for a hip disability in service and no evidence that the right hip disability was related to a service-connected right knee disability. The Veteran did not file a NOD; therefore, the decision became final. 7. In November 2008, the Veteran attempted to reopen her claim for a right hip disability but the RO denied the claim in a March 2009 rating decision on the basis that there was no new and material evidence. The Veteran did not file a NOD; therefore, the decision became final. 8. Evidence received since the March 2009 rating decision raises a reasonable possibility of substantiating the underlying claim of service connection for a right hip disability, to include as secondary to service-connected right knee disabilities, and therefore is material evidence. 9. In a December 2007 rating decision, the RO denied service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities, on the basis that there were no complaints of or treatment for low back pain in service and no evidence that the lumbar spine disability was related to a service-connected right knee disability. The Veteran did not file a NOD; therefore, the decision became final. 10. In November 2008, the Veteran attempted to reopen her claim for a lumbar spine disability but the RO denied the claim in a March 2009 rating decision on the basis that there was no new and material evidence. The Veteran did not file a NOD; therefore, the decision became final. 11. Evidence received since the March 2009 rating decision raises a reasonable possibility of substantiating the underlying claim of service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities, and therefore is material evidence. CONCLUSIONS OF LAW 1. Restoration of a 30 percent disability rating for left carpel tunnel syndrome is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.105 (2017). 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a depressive disorder, to include as secondary to service-connected disabilities. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a right hip disability, to include as secondary to service-connected right knee disabilities. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Additionally, the regulation governing reduction, 38 C.F.R. § 3.105(e), contains its own notice provisions and procedures. See Barger v. Principi, 16 Vet. App. 132 (2002). In the present case, the Board is granting restoration of the Veteran's rating for left carpel tunnel syndrome and granting the petition to reopen claims of entitlement to service connection for depressive disorder, right hip, and lumbar spine disabilities, to include as secondary to service-connected disabilities. Therefore, no further discussion of the VCAA is required. Propriety of Rating Reduction A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which sets forth the criteria for reduction of ratings in effect for five years or more. 38 C.F.R. § 3.344(a) and (b) stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; 38 C.F.R. § 3.344(c). The Veteran contends that the reduction of the 30 percent rating assigned for her left carpel tunnel syndrome was improper and that restoration is warranted. In a March 2009 rating decision, the RO granted a 30 percent rating for the Veteran's left carpel tunnel syndrome (dextral), effective from November 18, 2008, based upon moderate symptoms of the left hand. The Veterans right upper extremity was also granted service connection, but considered noncompensable based on symptomology. In September 2010, the RO proposed to reduce the Veteran's disability rating for left carpel tunnel syndrome from 30 percent to noncompensable, based upon evidence from the Veteran's March 2010 VA examination. The proposed reduction of the Veteran's left carpel tunnel syndrome reduced the Veteran's combined disability rating from 50 percent to 30 percent, resulting in a reduction in the amount of compensation payable to the Veteran. As such, the procedural requirements of 38 C.F.R. § 3.105(e) are for application. The September 2010 rating reduction proposal informed the Veteran of the proposed reduction, the evidence considered, and the reasons and bases for the proposed reduction. A September 2010 letter also informed the Veteran of the right to submit additional evidence or argument and to present such evidence or argument at a personal hearing, pursuant to 38 C.F.R. § 3.105(e), (i). In October 2010, the Veteran disagreed with the September 2010 rating reduction proposal and submitted a letter from her private clinician. See October 2010 VA Form 21-4138. The Veteran's treating clinician stated that the Veteran used wrist bands for her carpel tunnel syndrome and that her carpel tunnel symptoms were still present. The Veteran presented with pain and pinprick sensations that "irridated" to her elbow and prolonged used of her hands caused numbness, pain, and pinprick sensations. In a March 2011 rating decision, the RO reduced the Veteran's rating from 30 percent to noncompensable, effective June 1, 2011, or the first day of the month following the 60-day notification of the rating decision. The rating decision incorporated the evidence listed in the September 2010 rating reduction proposal and stated that as of that date, no additional evidence had been received. The Board finds that the RO did not comply with procedural requirements of 38 C.F.R. § 3.105(i)(2), as it did not consider additional evidence submitted by the Veteran in adjudicating the rating reduction. The Veteran submitted a letter from her treating clinician regarding the current severity of her disability, but this evidence was not listed on the March 2011 rating reduction decision. Therefore, it is not clear that the RO considered this evidence in the adjudication of the reduction. Thus, the rating reduction was improper. Where a rating reduction was made without observance of the law, the reduction must be vacated and the prior rating restored. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Therefore the Board finds that restoration of the 30 percent rating for the Veteran's left carpel tunnel syndrome is warranted. Claims to Reopen Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. §7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Depressive disorder In a December 2007 rating decision, the Veteran was denied service connection for depressive disorder, to include as secondary to service-connected right knee disabilities, on the basis that there were no psychiatric complaints or treatment prior to, during, or within one year of active service, and no evidence that the depressive disorder was related to a service-connected right knee disability. The Veteran was notified of the decision in a December 2007 letter, but did not file a timely notice of disagreement. In February 2010, the Veteran attempted to reopen her claim of service connection for depressive disorder. Since the December 2007 rating decision, evidence added to the claims file include VA treatment records, private medical records, and Social Security Administration records. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran's back, knee, and carpel tunnel disabilities had all resulted in a restriction of daily activities and social functioning. As a consequence, the Veteran presented with frustration, anxiety, irritability, and a decrease interest and pleasure in most activities. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final December 2007 rating decision. The Veteran is diagnosed with a depressive disorder and she is service-connected for bilateral knee disabilities and carpel tunnel syndrome. Thus, new evidence submitted since the RO's December 2007 rating decision, when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO's December 2007 decision, and reopening the claim of entitlement to service connection for a depressive disorder, to include as secondary to service-connected disabilities, is warranted. The Veteran's appeal is granted only to this extent. Right hip disability In a December 2007 rating decision, the Veteran was denied service connection for a right hip disability, to include as secondary to service-connected right knee disabilities, on the basis that there were no complaints of or treatment for a hip disability in service, and no evidence that the right hip disability was related to a service-connected right knee disability. The Veteran was notified of the decision in a December 2007 letter, but did not file a timely notice of disagreement. In November 2008, the Veteran attempted to reopen her claim of service connection for a right hip disability. The RO denied the claim in a March 2009 rating decision on the basis that there was no new and material evidence submitted. The Veteran was notified of the decision in an April 2009 letter, but did not file a timely notice of disagreement. In February 2010, the Veteran attempted to reopen her claim of service connection for a right hip disability. Since the March 2009 rating decision, evidence added to the claims file includes VA treatment records, private treatment records, and Social Security Administration records. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran developed weight-bearing problems due to her knee disability, resulting in bad posture, loss of correct alignment, and loss of curvature of the spine. As a consequence, and degenerative changes in the hip and ankles could be secondary to changes of her neck and back. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final December 2007 rating decision. The Veteran is diagnosed with right hip sacroiliitis and she is service-connected for bilateral knee disabilities. Thus, new evidence submitted since the RO's March 2009 rating decision, when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO's March 2009 decision, and reopening the claim of entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is warranted. The Veteran's appeal is granted only to this extent. Lumbar spine disability In a December 2007 rating decision, the Veteran was denied service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities, on the basis that there were no complaints of or treatment for low back pain in service and no evidence that the lumbar spine disability was related to a service-connected right knee disability. The Veteran was notified of the decision in a December 2007 letter, but did not file a timely notice of disagreement. In November 2008, the Veteran attempted to reopen her claim of service connection for a lumbar spine disability. The RO denied the claim in a March 2009 rating decision on the basis that there was no new and material evidence submitted. The Veteran was notified of the decision in an April 2009 letter, but did not file a timely notice of disagreement. In February 2010, the Veteran attempted to reopen her claim of service connection for a lumbar spine disability. Since the March 2009 rating decision, evidence added to the claims file includes VA treatment records, private treatment records, and Social Security Administration records. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran developed weight-bearing problems due to her knee disability, resulting in bad posture, loss of correct alignment, and loss of curvature of the spine. As a consequence, her neck and back were affected. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final December 2007 rating decision. The Veteran is diagnosed with lumbar strain myositis and she is service-connected for bilateral knee disabilities. Thus, new evidence submitted since the RO's March 2009 rating decision, when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO's March 2009 decision, and reopening the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities, is warranted. The Veteran's appeal is granted only to this extent. ORDER Restoration of a 30 percent rating for left carpel tunnel syndrome from June 1, 2011, is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for depressive disorder, to include as secondary to service-connected right knee disabilities, is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a right hip disability, to include as secondary to service-connected right knee disabilities, is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities, is granted. REMAND Bilateral carpel tunnel syndrome The Veteran contends that an increased rating is warranted for her bilateral carpel tunnel syndrome. As discussed above, the Board has restored the Veteran's 30 percent rating for left carpel tunnel syndrome. Therefore, the Veteran's left carpel tunnel syndrome is rated at 30 percent from November 18, 2008 under Diagnostic Code 8515 and her right carpel tunnel syndrome is rated as noncompensable from November 18, 2008 and at 10 percent from May 6, 2013. A November 2008 VA examination report reflects that the Veteran reported that while using crutches for her knee disability, she developed left hand pain and was diagnosed as having left carpel tunnel syndrome, with pain and numbness of the 4th and 5th fingers. She was found to have decreased vibration, pain, light touch, and position sense in her left upper extremity, with her ulnar nerve affected. Although the Veteran's right upper extremity was found normal, she was positive bilaterally for Tinel's signs and the examiner diagnosed her with bilateral carpel tunnel syndrome. The examiner noted that bilateral carpel tunnel syndrome had moderate effects on chores, mild effects on shopping, exercise, and recreation, and prevented participation in sports. The Veteran continued to seek treatment for marked pain and decreased performance due to her carpel tunnel syndrome and her medication was subsequently increased. See September 2009 VA treatment records contained within Social Security Administration records. A March 2010 VA examination report reflects that the Veteran reported that her bilateral carpel tunnel syndrome had worsened since her last examination, and that she had to leave her job as a secretary in August 2009 due to the sharp and burning pain in her wrists, left greater than right. The Veteran reported taking medication daily and occasionally wearing hand splints. Upon examination, the examiner found no motor impairment but there was bilateral decreased pain and light touch sensation at the 4th and 5th digits, with the ulnar nerve affected. Tinel's sign was positive bilaterally. An associated electrodiagnostic study was normal, with no electrodiagnostic evidence of median nerve entrapment at wrist level and no evidence of left ulnar nerve entrapment at elbow level. The examiner concluded that there was no clinical or electrodiagnostic evidence of bilateral carpel tunnel syndrome. An October 2010 letter from the Veteran's treating clinician stated that the Veteran used wrist bands for her carpel tunnel and that her carpel tunnel symptoms were still present. The Veteran presented with pain and pinprick sensations that radiated to her elbow and prolonged used of her hands caused numbness, pain, and pinprick sensations. The Veteran was most recently afforded a VA examination in May 2013. The examination report reflects that the Veteran had undergone occupational therapy for her bilateral carpel tunnel syndrome, including paraffin baths, stretching exercises, and strengthening exercises. The Veteran reported constant hand pain, that she was unable to use her wrist splints due to worsening pain, and numbness in the left 4th and 5th finger with radiation sensation from her elbow. The Veteran reported mild constant and intermittent pain, mild paresthesias/dysesthesias, and moderate numbness in the right upper extremity, with moderate constant and intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the left upper extremity. Upon examination, the Veteran was found to have weakened bilateral grip, decreased light touch in her left hand and fingers, with positive Phalen's and Tinel's sign on the right upper extremity. The examiner found incomplete mild paralysis bilaterally of the median nerve and incomplete mild paralysis of the left ulnar nerve. The examiner concluded that the Veteran had mild carpel tunnel syndrome and clinical left ulnar nerve neuropathy not related to her service-connected condition. The record reflects that the severity of the Veteran's carpel tunnel syndrome may have worsened from March 2010 to May 2013, in that she reported being unable to wear her wrist splints due to pain. In light of the more than four years since the Veteran's last VA examination and the record of evidence that suggests her symptoms may be worsening, the Board finds that a new VA examination to assess the current severity of the Veteran's bilateral carpel tunnel syndrome is warranted. Furthermore, Social Security Administration records reflect that the Veteran has continued to seek treatment at the VA, most recently as September 2009. However, the most recent VA treatment records on file are dated in October 2008 and the most recent private treatment records on file are dated in October 2010. Therefore, all outstanding VA treatment records and private treatment records identified by the Veteran should be obtained and associated with the Veteran's electronic claims file. Bilateral knee disabilities The Veteran contends that her service-connected bilateral knee disabilities warrant higher ratings than what is assigned. The Veteran is rated at 10 percent for right knee chondromalacia patella, medial meniscus tear, and chondromalacia of the right knee medial femoratibial cartilage from August 1, 2005 under Diagnostic Code 5257-5003; 10 percent for right knee tibial fracture from August 2005 under DC 5299-5262; and 10 percent for left knee patellofemoral dysfunction secondary to a right knee disability from November 18, 2008 under DC 5257-5003. The Veteran was afforded VA examinations in August 2006, November 2008, February 2010, and May 2013. The Board finds that these examination reports are inadequate for rating purposes. Specifically, VA regulations provide that joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. 38 C.F.R. § 4.59. While the examiners recorded the Veteran's range of motion, the reports do not specify whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Therefore, the examination reports are ambiguous on whether these levels of testing were done. Furthermore, more than four years has elapsed since the Veteran was last afforded a VA examination. Therefore, the Board concludes that a new VA examination is necessary to assess the current severity of the Veteran's bilateral knee disabilities. Depressive disorder The Veteran contends that service connection is warranted for a depressive disorder, to include as secondary to service-connected disabilities. Treatment records reflect that the Veteran was admitted to the hospital in July 2007 where she was diagnosed with major depressive disorder. The Veteran was afforded a VA examination in August 2007. The Veteran reported that in May and July 2006, she began to have forgetfulness, trouble sleeping, sadness, ruminations, suicidal wishes without plan or method, and anxiety. The Veteran reported that her ex-husband, with whom she had a close relationship, had died in August 2007. The examiner noted that the Veteran began psychiatric care in March 2007 and was on medication to treat her psychiatric disorder. The examiner noted a diagnosis of depressive disorder, NOS, but opined that the Veteran's depressive disorder was not caused by or a result of her service-connected right knee disability. The examiner found that there was no evidence of psychiatric complaints, findings, or treatment prior to active service, during active service, or within one year of discharge from active service. Rather, the Veteran sought psychiatric care in 2007, two years after her military discharge and after her ex-husband became ill and subsequently died. Treatment records reflect that the Veteran was admitted to the hospital in August 2007 with continuing depressive symptoms exacerbated by the recent death of her ex-husband. On intake, the Veteran reported a history of depression due to medical conditions, but that it had exacerbated when in July her ex-husband fell ill and was diagnosed with leukemia. See September 2007 discharge summary. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran's back, knee, and carpel tunnel disabilities had all resulted in a restriction of daily activities and social functioning. As a consequence, the Veteran presented with frustration, anxiety, irritability, and a decrease interest and pleasure in most activities. The Board finds the August 2007 VA examiner's opinion inadequate. It is not clear that the examiner considered the Veteran's lay statements that her psychiatric symptoms were exacerbated by, rather than caused by, the illness and death of her husband. The examiner found that the Veteran's psychiatric disorder had its onset upon the death of her ex-husband in July 2007. However, the Veteran reported that she began seeking treatment for her psychiatric disorder in March 2007. Furthermore, although the Veteran reported psychiatric treatment in March 2007, the earliest psychiatric treatment records associated with the Veteran's electronic claims file are from July 2007; therefore, it is unclear whether the examiner was able to review and consider these earlier treatment records when determining that the Veteran's psychiatric disorder was due to her ex-husband's death. The Board finds the October 2010 private opinion inadequate. Although the private clinician opined that the Veteran's disabilities were causing her psychiatric symptoms, the clinician did not provide a rationale or basis for the opinion. As there is no adequate medical opinion, the Board finds that a remand is warranted in order to obtain an adequate VA examination and medical opinion as to the nature and etiology of the Veteran's psychiatric disorder, diagnosed as depressive disorder. The record reflects that the Veteran began seeking treatment for her psychiatric disorder in March 2007 but the earliest psychiatric treatment records associated with the Veteran's claims file are from July 2007. Therefore, an attempt should be made to request information from the Veteran and associate with the electronic claims file any identified records concerning the Veteran's psychiatric treatment. Right hip disability The Veteran contends that service connection is warranted for a right hip disability, to include as secondary to her service-connected right knee disabilities. Service treatment records reflect that during physical training in August 2004, the Veteran injured her right knee. The Veteran's knee improved but she reinjured her right knee during basic training in January 2005. The Veteran continued to seek treatment for her right knee, and a right-sided antalgic gait was observed. See March 2005 service treatment records. The Veteran's service treatment records are silent with regards to complaints of or treatment for a right hip disability. Post-service treatment records reflect that the Veteran reported right hip pain that started while receiving physical therapy for her right knee and lumbar back pain, specifically, while exercising on the stationary bicycle. See March 2007 VA treatment records. The Veteran was afforded a VA examination in August 2007. The Veteran reported pain in the sacral area of her hip, with right side greater than left. Upon examination, the examiner found tenderness in the right hip at the sacral area, but noted that that the Veteran's gait was non-antalgic. Flexion of the right hip was to 125 degrees, with pain in the last 20 degrees, but no functional loss noted. The examiner diagnosed the Veteran with right hip sacroiliitis, but opined that the right hip sacroiliitis was not etiologically or biomechanically related to the Veteran's service-connected right knee disability, as the Veteran's gait had not affected her right hip area. The examiner further opined that the right hip sacroiliitis could be related to strenuous exercises during service yet to be seen in the claims folder. The Board finds the August 2007 examiner's opinion inadequate. Although the examiner stated that the Veteran's claims folder had been reviewed, it is not clear whether the examiner reviewed the Veteran's service treatment records, to include an observed antalgic gait, in light of the speculative nexus opinion provided. Furthermore, it is not clear that the examiner considered the Veteran's lay statements concerning onset on hip pain during physical therapy for her knee, nor did the examiner render an opinion as to whether the Veteran's right hip disability was aggravated by her service-connected right knee disability. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran developed weight-bearing problems due to her knee disability, resulting in bad posture, loss of correct alignment, and loss of curvature of the spine. As a consequence, and degenerative changes in the hip and ankles could be secondary to changes of her neck and back. However, the Board finds the private opinion inadequate as it is speculative. Although the private clinician opined that the Veteran's hip disability could be secondary to her knee disabilities, the clinician did not provide a basis or rationale for the opinion. Therefore, the Board finds that a remand is warranted in order to obtain an adequate VA examination and medical opinion concerning the nature and etiology of the Veteran's right hip disability, diagnosed as sacroiliitis. Lumbar spine disability The Veteran contends that service connection is warranted for a lumbar spine disability, to include as secondary to her service-connected right knee disabilities. Service treatment records reflect that during physical training in August 2004, the Veteran injured her right knee. The Veteran's knee improved but she reinjured her right knee during basic training in January 2005. The Veteran continued to seek treatment for her right knee, and a right-sided antalgic gait was observed. See March 2005 service treatment records. The Veteran's service treatment records are silent with regards to complaints of or treatment for a lumbar spine disability. Post-service treatment records reflect that in August 2006, the Veteran reported a history of low back pain since falling on her right side during active service in January 2005. Imaging studies revealed minimal mild lumbar levoscoliosis. An August 2006 VA examination for her right knee reflects that the Veteran reported that when she fell in January 2005, she began to feel pain in her low back, more marked in the right side and that low back pain continued to bother her. The Veteran reported that she thought this pain was secondary to her knee problem and thus did not report it separately during active service. In January 2007, the Veteran reported to her treating physician that her back pain started insidiously and that she thought it was related to her knee pain. Upon examination, the examiner found tenderness in the paraspinal thoracic-lumbar area. The physician diagnosed the Veteran with mechanical low back pain due to thoracic-lumbar myositis and clinical right sacroiliitis, possibly as compensatory to right knee problems, and the Veteran was prescribed physical therapy. The Veteran was afforded a VA examination in August 2007. The Veteran reported having pain in her lumbar area since its onset in 2005 lasting three to five hours a day and aggravated by prolonged standing, ambulation, or bending forward. Range of motion was limited and the Veteran's lumbar area was tender. The Veteran's gait was non-antalgic. The examiner diagnosed the Veteran with lumbar strain myositis but opined that the lumbar condition was not related to the Veteran's service-connected right knee disabilities in terms of pathophysiology, actual gait biomechanics, or etiology. The Board finds the August 2007 VA examiner's opinion inadequate, as the examiner did not provide a rationale or basis for the opinion. Furthermore, although the examiner opined that the Veteran's lumbar condition was not related to her service-connected right knee disabilities, the examiner did not provide an opinion as to whether the Veteran's lumbar condition was aggravated by her service-connected right knee disabilities, or whether the lumbar condition was incurred in service, manifested within one year of discharge, or otherwise related to any disease, event, or injury during service, including her fall in 2005. In an October 2010 private letter, the Veteran's treating clinician stated that the Veteran developed weight-bearing problems due to her knee disability, resulting in bad posture, loss of correct alignment, and loss of curvature of the spine. As a consequence, her neck and back were affected. However, the Board finds the private opinion inadequate as it is speculative. Although the private clinician opined that the Veteran developed weight-bearing problems due to her knee disability, and this caused problems with her neck and spine, the clinician did not provide a basis or rationale for the opinion. Therefore, the Board finds that a remand is warranted in order to obtain an adequate VA examination and medical opinion concerning the nature and etiology of the Veteran's lumbar spine disability. TDIU The Veteran contends that she is entitled to a total disability rating based upon individual unemployability (TDIU) due to her service-connected disabilities. In a September 2010 rating decision, the RO denied entitlement to TDIU. With regard to the issue of entitlement to a TDIU, a decision on the increased rating claims for bilateral knee disabilities and bilateral carpel tunnel syndrome and service connection claims for a psychiatric disorder, right hip, and lumbar spine disabilities being remanded herein may affect the claim for a TDIU. Any grant of an increased rating or service connection claim could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran's overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, the Board remands the issue, so that a supplemental VA opinion can be obtained to address whether unemployability due to service-connected disabilities is demonstrated. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records dated since October 2008 and private treatment records identified by the Veteran since October 2010. Any VA psychiatric treatment records and private records identified by the Veteran prior to July 2007, to include treatment records dated in March 2007, should also be obtained. 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected bilateral carpel tunnel syndrome. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings. The examiner is asked to comment on the October 2010 letter from the Veteran's treating clinician concerning the severity of the Veteran's carpel tunnel symptoms. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for a VA examination to assess the current severity of her service-connected bilateral knee disabilities. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must pay particular attention to the following: (a) The examination must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. (b) The examiner must provide an opinion on additional loss of range of motion due to pain, weakness, fatigability, and/or incoordination. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. (c) The examiner must provide an opinion as to whether there is additional loss of range of motion during flare-ups. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. To the extent possible, the examiner is asked to estimate the loss of motion of the bilateral knees during flare-ups and due to pain currently and as reported in the August 2006, November 2008, February 2010, and May 2013VA examination reports. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of her claimed psychiatric disorder, diagnosed as depressive disorder. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to (a) Whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's psychiatric disorder, diagnosed as depressive disorder, was incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event. (b) If it is determined that the Veteran's psychiatric disorder was not incurred in service or otherwise related to in-service event, then the examiner must opine as to whether it is at least as likely as not that the Veteran's psychiatric disorder is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression of the disability) by her service-connected disabilities. If the examiner finds that the Veteran's service-connected disabilities aggravated her psychiatric disorder, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the non-service connected psychiatric disorder before onset of aggravation. The examiner is asked to comment on the onset of the Veteran's psychiatric symptoms in relation to the diagnosis of her ex-husband's terminal illness as well as the October 2010 letter from the Veteran's treating clinician. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the term "as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 5. Schedule the Veteran for a VA examination to address the nature and etiology of the Veteran's right hip sacroiliitis. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to: (a) Whether it is at least as likely as not that the Veteran's right hip sacroiliitis was incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event, to include any strenuous exercise. (b) If it is determined that the Veteran's right hip sacroiliitis was not incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event, then the examiner must opine as to whether it is at least as likely as not that the Veteran's right hip sacroiliitis is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression of the disability) by her service-connected bilateral knee disabilities. If the examiner finds that the Veteran's service-connected right knee disabilities aggravated her right hip sacroiliitis, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the non-service connected sacroiliitis before onset of aggravation. The examiner is asked to comment on the Veteran's lay statements concerning onset of hip pain during post-service physical therapy for her lumbar back and service-connected right knee disabilities, as well as the October 2010 letter from the Veteran's treating clinician. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the term "as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 6. Schedule the Veteran for a VA examination to address the nature and etiology of the Veteran's lumbar spine disability. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to: (a) Whether it is at least as likely as not that the Veteran's lumbar spine disability was incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event, to include during the January 2005 fall in which her right knee was injured. (b) If it is determined that the lumbar spine disability was not incurred in service, manifested within one year of discharge from service, or otherwise related to in-service event, then the examiner must opine as to whether it is at least as likely as not that the Veteran's lumbar spine disability is proximately due to or aggravated (i.e., permanently worsened beyond the natural progression of the disability) by her service-connected bilateral knee disabilities. If the examiner finds that the Veteran's service-connected right knee disabilities aggravated her lumbar spine disability, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the non-service connected lumbar spine disability before onset of aggravation. The examiner is asked to comment on the Veteran's lay statements concerning onset of back pain in 2005 while in service, the treatment note questioning whether the Veteran's lumbar spine disability was due to compensation from a knee disability, and the October 2010 letter from the Veteran's treating clinician. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the term "as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 7. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs