Citation Nr: 1808487 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-04 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Counsel INTRODUCTION The Veteran had active duty service from January 1978 to January 1981. These matters on appeal before the Board of Veterans' Appeals (Board) arise from a February 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania. The Veteran had a videoconference hearing in June 2014 before another Veterans Law Judge (VLJ). A hearing transcript is of record. In September 2017, however, the RO notified the Veteran that the previous VLJ who presided over the 2014 videoconference was no longer available and inquired if he would desire another Board hearing. The Veteran elected to forego another Board hearing. In a July 2015 decision, the Board reopened the claim for service connection for an acquired psychiatric disability and denied service connection, on the merits, for an acquired psychiatric disability, to include PTSD. In addition, the Board denied service connection for a bilateral knee disability. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a February 2017 memorandum decision, the Court vacated that part of the July 2015 Board decision, which denied service connection for an acquired psychiatric disability and bilateral knee disabilities. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding the Veteran's claim for an acquired psychiatric disability, as mentioned above, the Court vacated the Board's denial of the claim. The Court, however, declined to adjudicate the claim on its merits because the Board had not determined whether the Veteran's incarceration in a Japanese prison for alleged theft constituted "willful misconduct." Even before a determination can be made on this issue, the Veteran should be afforded another VA examination. The Veteran's claims file shows that he has been diagnosed with depression and anxiety, but the VA examination of record does not address these other diagnosed conditions. In addition, the Veteran asserts that his psychiatric disability is a result of other incidents in service, including being subject to racism from service members and his superiors. He alleges that he received a lower performance appraisal than warranted. He cites an instance where he refused unwanted advance from a service member and it resulted in him being "written up" for making a threat. Based on this information, further medical commentary is necessary. As mandated by the February 2017 Court memorandum, the claim for a bilateral knee disability is being remanded for another VA examination. The Court determined that the May 2011 VA examination was inadequate because there was no rationale to support the examiner's conclusion that the bilateral knee disability was not related to service, even though there was evidence in the Veteran's service treatment records (STRs) that he was treated for the same conditions during service. Therefore, another VA examination is necessary. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Make arrangements to obtain the Veteran's VA treatment records from February 2017. 2. Thereafter, schedule the appropriate VA examination to determine the nature and etiology of any psychiatric disability. The claims file, including this remand, must be reviewed by the examiner and such review must be noted in the examination report. The examiner should identify all current psychiatric disorders found on examination. For each diagnosed psychiatric disorder, the examiner is to provide the following opinion: Is it as least as likely as not (a 50 percent probability or more) that any diagnosed psychiatric disorder had its onset during military service or is otherwise etiologically related to such service? Whether it is at least as likely as not that any diagnosed psychiatric disorder had its onset within one year of service separation? The examiner should consider the Veteran's statements, including being subject to racism from service members and his superiors. A complete rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence. 3. Schedule an appropriate VA examination to determine the etiology of the Veteran's bilateral knee disability. The claims file, including this remand, must be reviewed by the examiner and such review must be noted in the examination report. The examiner is asked to provide an opinion on whether it is as least as likely as not (a 50 percent probability or more) that the bilateral knee disability had its onset during military service or is otherwise etiologically related to such service, including the December 1978 STR reflecting that the Veteran twisted his right knee while playing football; a January 1980 STR showing that the Veteran had a two year history of knee pain and also reported fracturing his right tibula and fibula in a 1975; and another January 1980 STR entry showing that the Veteran complained about knee aches from physical activity, prolonged standing, use of stairs and/or squats. A complete rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence. 4. Finally, and after undertaking any additional development deemed necessary, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 (West 2014). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).