Citation Nr: 1808776	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-19 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, and if so whether the reopened claim should be granted. 

2.  Whether new and material evidence has been received to reopen a claim for service connection for a left knee disorder, and if so whether the reopened claim should be granted. 

3.  Entitlement to service connection for a psychiatric disorder.

4.  Entitlement to service connection for a lung disorder.

5.  Entitlement to service connection for a right leg disorder.

6.  Entitlement to service connection for a cervical spine disorder.

7.  Entitlement to a compensable rating for a left little finger disability.  

8.  Entitlement to a compensable rating for a right index finger disability.  

9.  Entitlement to an increased rating for a right knee disability, rated at 20 percent for status-post meniscectomy and 10 percent for degenerative joint disease prior to September 18, 2014, and 50 percent for limitation of extension and 10 percent for status-post meniscectomy from September 18, 2014.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran had active service from February 1974 to February 1978.  

This matter came before the Board of Veterans' Appeals (Board) from a June 2010  decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran previously submitted a claim of entitlement to service connection for a psychiatric disorder which was denied in an August 1992 rating decision.  Service connection was denied, at least in part, due to the absence of evidence of a service-connectable psychiatric disorder.  The August 1992 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period.  See 38 C.F.R. § 3.156(b).  In connection with the Veteran's claim to reopen, evidence has been added to the record which includes medical evidence of a chronic psychiatric disorder.  Thus, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  


FINDING OF FACT

The Veteran's psychiatric disorder is secondary to the service-connected right knee disorder.  


CONCLUSION OF LAW

The criteria for service connection for a psychiatric disorder have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. § 3.303, 3.310 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131, 1137; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).   

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b).

Service connection is warranted for a psychiatric disorder, diagnosed as major depressive disorder and generalized disorder.  The record includes a November 2013 VA examiner's opinion that it is at least as likely as not that the mental disorder are caused or exacerbated by the Veteran's service-connected knee disability.  The examiner explained that there is a definite bi-directional correlation between chronic pain, limited physical abilities, and depression.  In the absence of medical evidence against the claim, and resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for a psychiatric disorder.   


ORDER

Service connection for a psychiatric disorder is denied.


REMAND

The Board finds there are outstanding records that should be requested.  The record indicates that the Veteran was previously awarded disability benefits from the Social Security Administration (SSA).  See November 2013 VA examination record (reporting historic receipt of social security disability).  Records in the possession of the SSA could be supportive of the Veteran's claims.  Thus, further development to obtain those records is in order.  The record also indicates that the Veteran filed a claim for workers' compensation related to a low back injury in approximately 1998.  The Board finds these records would be beneficial to adjudicating the application to reopen.  Finally, the record indicates that the Veteran received nonVA treatment in September 2011 for a fall that resulted in femoral nerve palsy.  The Board finds the associated records should be requested.  

Furthermore, the Board finds the Veteran should be afforded additional VA examinations to determine the current severity of the right knee and finger disabilities.

Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate development to obtain a copy of any SSA disability determination(s) for the Veteran and a copy of the records associated with any such determination(s).

2.  Undertake the appropriate development to obtain all available records associated with the Veteran's claim for worker's compensation based on an injury in October 1998.  If the records are not available, this should be noted in the record and the Veteran should be so informed.

3.  Undertake appropriate development to obtain any other outstanding medical records pertinent to the Veteran's claims, including those associated with treatment from Lourdes Hospital and K.R. Rehabilitation Center in September 2011.   

4.  Afford the Veteran a VA examination to determine the current severity of the (a) right knee, (b) right index finger, and (c) left little finger disabilities.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.  

Ensure that the examiner provides all information required for rating purposes.  In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing.  The examiner should also be directed to perform the same range of motion tests for the Veteran's left knee.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so.  

The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups experienced, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment experienced during a flare-up of symptoms and/or after repeated use over time.  Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).


5.  Thereafter, readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.

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).

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 2012).



____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs