Citation Nr: 1808955 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-05 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include depression. 3. Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee disability. 4. Entitlement to service connection for a left knee disability, to include as secondary service-connected right knee disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due exclusively to service-connected internal derangement of the right knee and service-connected hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran had active service from May 1969 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2004, June 2008, and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A Travel Board hearing was held at the RO in February 2009 before the undersigned Veterans Law Judge and the hearing transcript is of record. As an initial matter, the Board finds that brief review of the complex procedural history involved in this case is necessary as there are multiple appeal streams at issue. The Agency of Original Jurisdiction (AOJ) initially denied service connection for a low back disability in a February 2004 rating decision. The Veteran submitted additional relevant evidence within one year of the February 2004 rating decision which rendered it non-final for VA adjudication purposes under 38 C.F.R. § 3.156 (b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). In September 2004, the AOJ once again denied service connection for a low back disability, as well as a left knee disability. The Veteran perfected an appeal as to these issues. In June 2008, the AOJ denied the claim for TDIU due exclusively to service-connected internal derangement of the right knee and service-connected hepatitis C. The Board remanded the claims for service connection for the back and left knee, in June 2009 and again in April 2011, for additional development, including VA examinations. In both remands, the Board also remanded the claim of entitlement to TDIU for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The SOC was issued in February 2012 and the Veteran perfected his appeal as to that issue. While the foregoing appeals were in process, the Veteran pursued a claim for PTSD that was denied by the AOJ in a May 2011 rating decision. The Veteran perfected an appeal for that claim. Following (attempted) completion of the development requested in the April 2011 remand, the appeal for service connection for the left knee and back, as well as the claim for TDIU were merged the appeal for service connection for PTSD and addressed by the Board in August 2015. In August 2015 the Board expanded the Veteran's claim for PTSD to encompass claims for service connection for PTSD and for an acquired psychiatric disability other than PTSD, to include depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board denied the claim for service connection for PTSD and remanded the claim for an acquired psychiatric disorder other than PTSD for additional development. Also in August 2015, the Board granted a higher rating for Hepatitis C, denied higher ratings for right knee disabilities, denied service connection for a right hip disorder, and remanded claims for service connection for low back and left knee disorders pursuant to Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). The Board also remanded claims for service connection for erectile dysfunction, a liver condition, and renal disease for issuance of a statement of the case pursuant to Manlincon, supra. The Veteran appealed the Board's August 2015 decision denying service connection for PTSD to the Court of Appeals for Veterans Claims (Court) but did not appeal the other decisions reached in the August 2015 decision. In January 2017, the Court issued a Memorandum Decision setting aside the Board's decision to deny service connection for PTSD. The claims for service connection for low back and left knee disorders that were remanded by the Board in August 2015 are now again before the Board. The Board notes that the Veteran has additional appeals, other than those listed on the title page above, that are active at this time. Specifically, the Veteran perfected his appeal for service connection for erectile dysfunction, a liver condition, and renal disease. He requested a hearing in connection with the appeal for these issues; thus, the Board will not address those issues at this time. The Veteran also recently perfected a separate appeal for higher ratings for his service-connected right knee disabilities. A review of Veterans Appeals Control and Locator System (VACOLS) indicates that the appeal is pending at the AOJ and is not yet ripe for review by the Board. The Board also acknowledges the Veteran's February 2016 statement asking what happened to his claims for service connection for hearing loss and dental problems. A review of the record indicates that he withdrew the appeal for service connection for hearing loss at the time of the February 2009 Board hearing. See Hearing Transcript. The dental claim is herein referred to the AOJ. The issue of entitlement to dental benefits was raised in an April 2015 submission from the Veteran, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over that, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With respect to the claim for service connection for PTSD, having considered the January 2017 Memorandum Decision, along with additional evidence added to the record since the Board issued its August 2015 decision, the Board finds that further development is required. As discussed in the Court's Memorandum Decision, a May 2015 VA treatment record indicated that the Veteran has PTSD linked to stressors of fellow service members who committed suicide in service. Thus, it is imperative that the appropriate development be done to assist the Veteran with confirming the incurrence of the stressor. Consistent with the Memorandum Decision and the request by the Veteran's representative, further inquiry is necessary from the Joint Services Records Research Center (JSRRC) to confirm the incurrence of the non-combat related deaths of the Veteran's fellow service members. New evidence has been added to the record since the August 2015 Board decision. Specifically, the Veteran's representative identified a narrower time frame for which the AOJ may be able to request confirmation from the JSRRC regarding confirmation of the stressful events in service. See November 2017 Informal Hearing Presentation. The Veteran's representative also noted that the AOJ should seek morning reports that may confirm the Veteran's stressors regarding the deaths of fellow service members. The Board agrees. The Board observes that while the appeal for service connection for PTSD was pending, the AOJ took action to develop the claim. An April 2017 response from Defense Personnel Records Information Retrieval System (DPRIS) confirms that one service member died as a result of a vehicle accident in November 1971. DPRIS noted that it was unable to locate the unit information for the deceased service member and thus, could not confirm that the service member was in the Veteran's unit. The DPRIS response noted that further information could be found by seeking records from the Director, U.S. Army Crime Records Center, or by requesting a morning report search from the National Personnel Records Center (NPRC). Another April 2017 DPRIS response regarding the AOJ's request for information specific to the Veteran's unit, indicates that the AOJ should resubmit the request with the Veteran's unit information down to the lowest possible level, and use the narrower time frame provided by the Veteran's representative. In determining that further development is necessary, the Board acknowledges that the Veteran's VA treating psychiatrist, Dr. H.G., submitted a statement in September 2015 indicating that the Veteran has PTSD related to combat in Vietnam. However, the Board is not able to grant the claim based upon this opinion as it appears to be based upon inaccurate facts. The Veteran's military personnel records indicate that his only foreign service was in Germany. The Veteran has not reported any stressors involving fear of enemy combatants. Rather, he has described stressful events of fellow service members either committing suicide or being killed by virtue of gravity and motor vehicle accidents. As it appears that the September 2015 opinion was not based upon an accurate factual basis, the Board is not able to grant the claim for service connection of PTSD based on the opinion. Dr. H.G. also indicated that the Veteran's PTSD was caused or aggravated by his service-connected hepatitis C and knee disabilities; however, this opinion was rendered following discussion of the Veteran's treatment for major depressive disorder. Given Dr. H.G.'s additional opinion that PTSD was due to combat, it appears that the reference to PTSD being caused or aggravated by service-connected disabilities may have been an error. Further, as the Veteran has a pending claim for service connection for an acquired psychiatric disorder other than PTSD, clarification is required to determine whether Dr. H.G. intended to communicate that the Veteran's major depressive disorder was caused or aggravated by the service connected disabilities. The Board observes that the Veteran was also provided a VA psychiatric examination in September 2015 regarding any acquired psychiatric disorders other than PTSD and any relationship to service or service-connected disability. The VA examiner was unable to relate the Veteran's current acquired psychiatric disorders to service as the examiner determined that the earliest manifestation of any such disorder was in July 2003. Further, the examiner found that the Veteran's current disorders may have been related to the frequency of his past alcohol consumption. Following the September 2015 VA examination, in a January 2016 statement, the Veteran responded to the examiner's conclusions and reiterated his assertion that his current disorder began in service. The Veteran reported that he drank alcohol to escape the stressful environment of having to prepare to be sent to Vietnam (even though he ultimately was not sent there) and every month, hearing of all of the soldiers who did not return from Vietnam. He reported that he was reprimanded for behavior associated with his alcohol consumption in service, and that he was arrested multiple times for behaviors associated with his alcohol consumption following service. In January 2016, Dr. H.G., submitted letter explaining that the Veteran's alcohol consumption was his way to self-medicate during the Vietnam era. In light of this new evidence indicating a connection between the Veteran's current depressive disorder and service or service-connected disabilities, an addendum opinion should be obtained from the September 2015 VA psychiatric examiner. With respect to the claims for service connection for the back and left knee, the Board finds that VA opinions obtained pursuant to the August 2015 remand are inadequate and addendum opinions must be obtained. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Specifically, the September 2015 VA examiner opined that it was less likely than not that the Veteran's left knee disability was related to service or service-connected right knee disability, but did not provide any rationale. The examiner simply explained that there is no supportive evidence or pathophysiology to reply without mere speculation but did not explain what evidence was necessary in order to reach a decision. The AOJ attempted to correct the inadequacy by obtaining an addendum opinion in January 2016. Taking together the September 2011 VA opinion and January 2016 VA opinion, the Board finds that no further opinion is required with respect to direct service connection. However, regarding the Veteran's primary assertion that his left knee disorder is secondary to the right knee disability, further explanation is required as the January 2016 VA examiner reiterated that the Veteran's left knee condition was not aggravated beyond its normal progression but did not explain how the conclusion was reached. Neither the September 2015 nor the January 2016 opinion addressed the Veteran's February 2012 statement regarding his observations of posture and gait cycle changes, demonstrated by the difference in the wear patterns of his shoes. The January 2016 VA examiner simply pasted the September 2011 VA opinion into the January 2016 VA opinion. For background, the September 2011 VA examiner noted that the Veteran's right knee showed mild degenerative joint disease on X-ray in 2010 and explained that mild degenerative joint disease in the right knee would not lead to the Veteran's left knee pathology. In the August 2015 remand, the Board found the September 2011 VA opinion inadequate because the examiner did not consider the Veteran's assertions that his right knee disabilities altered his gait, thereby causing or aggravating the left knee disorder. Regarding the low back disability, the January 2016 VA opinion based the finding that the Veteran's current low back disability was not due to service on the lack of documented treatment for the back for 30 years post-service. It does not appear that the examiner considered the Board's previous direction that examiners should not base a negative conclusion on a lack of treatment. Additionally, none of the VA opinions obtained since the April 2011 remand fulfilled the Board's April 2011 remand instruction to address the possibility of whether the Veteran's back disorder was caused or aggravated by the service-connected right knee disability, to include any abnormal gait that resulted from the right knee disability. Thus, an addendum opinion is required. See Stegall, supra. Further, following the most recent statements of the case, additional private and VA treatment records were added to the record. All of these records should be reviewed prior to readjudication. As the Veteran continues to be treated at VA facilities regularly, any outstanding VA treatment records should be obtained on remand. The claim for TDIU is intertwined with the claims and actions discussed above. As such, the TDIU claim should be readjudicated by the AOJ following the completion of the requested development. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since October 2017. 2. Perform the appropriate inquiries to confirm the Veteran's asserted PTSD stressors, to include seeking the additional information as suggested in the April 2017 DPRIS responses. 3. Seek clarification from the Veteran's VA treating psychiatrist, Dr. H.G., who authored the September 2015 and January 2016 letters. Ask Dr. H.G. if it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's major depressive disorder was related to service or caused or aggravated by service-connected disabilities. The basis for the opinion must be provided. 4. Following completion of items 1 through 3, seek an addendum opinion from the September 2015 VA examiner regarding whether any current acquired psychiatric disorder other than PTSD is related to service or service-connected disability. The examiner is requested to review all pertinent records associated with the claims file. The Board leaves it to the discretion of the clinician to determine whether the Veteran need be reexamined. The examiner is asked to address the following questions: a) Whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed acquired psychiatric disorder other than PTSD, to include major depressive disorder or a mood disorder, is related to service. The examiner must acknowledge and discuss any lay evidence of continuity of symptomatology. The examiner is also asked to consider Dr. H.G.'s January 2016 letter indicting that the Veteran's alcohol consumption was his way to escape stress during the Vietnam era. The examiner is also asked to consider the Veteran's January 2016 letter in response to the September 2015 VA examination report. b) If not directly due to service, address whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed acquired psychiatric disorder other than PTSD, is caused or aggravated by the Veteran's service-connected right knee disabilities, to include pain. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The electronic claims file must be provided to the examiner for review. The examiner must state in the examination report that the electronic claims file was reviewed. 5. Following completion of item 1, obtain VA addendum opinions as to whether the Veteran's current low back and left knee disorders are related to service or service-connected disability. The examiner is requested to review all pertinent records associated with the claims file. The Board leaves it to the discretion of the clinician to determine whether the Veteran need be reexamined. The examiner is asked to address the following questions: a) Whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed left knee disorder was caused or aggravated by the Veteran's service-connected right knee disabilities, to include any abnormal gait. Consider the Veteran's February 2012 statement that his stride has shortened on the right side and that it affects his posture and gait cycle; that the wear pattern on his shoes demonstrate an altered gait; and that his gait does not feel normal when he walks - his movements are not smooth and there is no cooperation when he transfers weight from one leg to another. Also consider the Veteran's August 2012 statement regarding the post-service fall on the job in 1986. The Veteran reported that he fell because his service-connected right knee gave way. b) Whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed low back disorder, to include a low back strain and/or herniated discs, is related to service. The examiner must acknowledge and discuss any lay evidence of continuity of symptomatology. c) If not directly due to service, address whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed low back disorder is caused or aggravated by the Veteran's service-connected right knee disabilities, to include any abnormal gait. Again, consider the Veteran's February 2012 statement regarding his observations of his altered gait and effect on posture, as well as the August 2012 statement that he fell on the job in 1986 because his service-connected right knee gave way. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The electronic claims file must be provided to the examiner for review. The examiner must state in the examination report that the electronic claims file was reviewed. 6. Following completion of items 1 through 4, perform any additional development required as a result of the actions listed in this remand. Then, readjudicate the claims, including the claim for TDIU, based on all of the evidence of record. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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 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 (2012). _________________________________________________ MARJORIE A. AUER 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).