Citation Nr: 1824877	
Decision Date: 04/23/18    Archive Date: 05/03/18

DOCKET NO.  14-31 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder. 

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to a higher initial rating for a service-connected right knee disability with subluxation and instability, currently evaluated as 10 percent disabling.

4.  Entitlement to a higher initial rating for a service-connected right knee disability with degenerative joint disease and limitation of flexion, currently evaluated as 10 percent disabling. 

5.  Entitlement to a higher initial rating for a service-connected left knee disability with degenerative joint disease and limitation of flexion, rated as noncompensable prior to July 8, 2014, and as 10 percent disabling from that date.

6.  Entitlement to a higher initial rating for a service-connected left knee disability with instability, currently evaluated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

A. Vieux, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training from June 1985 to August 1985 and on active duty from August 1989 to August 1992.

This case comes to the Board of Veterans' Appeals (Board) on appeal from March 2014 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

This matter was previously before the Board in September 2016 and was remanded for additional development.

The issues of entitlement to service connection for a psychiatric disorder; and entitlement to higher initial ratings for bilateral knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  Service connection for an acquired psychiatric disorder was denied in the January 2015 Board decision.

2.  Evidence received since the January 2015 Board decision is new and raises a reasonable possibility of substantiating the previously denied claim.


CONCLUSIONS OF LAW

1.  The January 2015 Board decision is final.  38 U.S.C. § 7105(b) (2014); 38 C.F.R. §§ 3.104, 20.1100 (2017).

2.  The criteria for reopening the claim of service connection for an acquired psychiatric disorder have been met.  38 U.S.C. §§ 5108, 7103(a), 7104(a) (2014); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Since the January 2015 Board decision, new medical evidence has been associated with the claims file.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  Specifically, medical records and a February 2016 VA examination have been added to the claims file.  These records relate to previously unestablished facts.  Further, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  For these reasons, reopening of the previously denied claim of service connection for an acquired psychiatric disorder is warranted.  This matter is discussed further in the Remand section.


REMAND

Acquired Psychiatric Disorder

The Veteran asserts entitlement to service connection for sleep disruption or disorder secondary to service-connected bilateral knee disabilities.  Further, he filed a claim for a sexual disorder and a personality disorder.  

The Veteran was afforded a VA examination in February 2016.  The examiner diagnosed sexual disorder unspecified, and personality disorder NOS with borderline and passive tendencies.  The examiner opined that the Veteran exhibited no mental disorder, including a mental sleep disorder, secondary to the service-connected knee disabilities.  The examiner opined that the Veteran exhibited a sexual disorder and personality disorder which are not caused by, incurred in, due to, or aggravated by military service.  The examiner's opinion does not specifically address aggravation.  As such, an addendum opinion that addresses aggravation is necessary.

Bilateral Knee Disabilities

Remand is required to obtain compliance with a prior Board remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that an United States Court of Appeals for Veterans Claims (Court) or Board remand confers upon the appellant the right to compliance with that order).

The Veteran was afforded a VA examination in October 2016 in accordance with a September 2016 remand.  The September 2016 remand instructed the VA examiner to record the results of range of motion testing for the bilateral knees on both active and passive motion, and in weight-bearing and nonweight-bearing states.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  

The October 2016 VA examiner indicated that there was evidence of painful motion in the right and left knees.  However, the examiner did not indicate if the range of motion testing for pain was on active or passive movement.  Further, the examiner noted that the Veteran reported flare-ups of the knee and/or lower leg with prolonged standing or walking.  The examiner indicated that the exam was not conducted during a flare-up and the exam was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups.  Nevertheless, the examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups.  

In Correia, the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59.  Thirty-eight C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions.

A new VA examination is necessary because the October 2016 VA examination report does not indicate if the range of motion testing of the right and left knees for pain was on active or passive movement.  Further, the examiner did not obtain the Veteran's lay statements as to the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information.  Since the information required pursuant to the September 2016 remand was not provided, the examination report is inadequate for rating purposes.  See Stegall, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any outstanding VA treatment records.

2.  Obtain an addendum opinion from the VA examiner who provided the February 2016 VA mental disorders examination, or other qualified examiner, if unavailable.  No additional examination is necessary, unless the examiner determines otherwise.

The examiner is asked to indicate whether the diagnosed sexual disorder, is at least as likely as not (i.e., at least a 50 percent probability) aggravated by the Veteran's service-connected bilateral knee disabilities. 

The term "aggravation" means a chronic worsening of a disability beyond its natural progression.  If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the psychiatric disorder prior to aggravation by the service-connected knee disabilities.

Please include a thorough rationale for all opinions expressed.  Additionally, if you are unable to render an opinion without resorting to speculation, please explain why this is so.

3.  Schedule the Veteran for an appropriate VA examination to determine the current severity of his bilateral knee disabilities.  The claims folder, AND A COPY OF THIS REMAND, should be made available to and reviewed by the examiner.  All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail.  The examiner is requested to address the following:

(a)	Provide the current ranges of motion testing for pain on both active and passive motion as well as in weight-bearing and in nonweight-bearing states for the bilateral knees.  If the examiner is unable to conduct the required testing or concludes that such testing is not necessary in this case, the examiner should clearly explain why that is so.

In reporting the range of motion, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time.

If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so.

The examiner should also express an opinion as to whether there would be additional functional impairment on repeated use over time or, during flare-ups.  The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible.  

If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, or if the examination is not conducted immediately after repeated use over a prolonged period of time, the examiner should still provide an estimate of additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations.  If it is not feasible to estimate or precisely determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so.

(b)	Review the bilateral knee examinations in November 2013, July 2014, August 2016, and October 2016 and opine as to whether the above requested measurements for active and passive range of motion and in weight-bearing and nonweight-bearing would be similar if taken at the time of the prior examination, and if not, how they would have differed.

Comprehensive rationales must be provided for the opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation.  

4.  After completion of the above and any other development deemed necessary, readjudicate the appeal.  If the benefits sought remain denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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 (2014).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs