Citation Nr: 20003971 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-53 092 DATE: January 16, 2020 REMANDED The claim for an increased rating for anxiety neurosis, rated 50 percent disabling is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for an increased rating for left knee arthritis, rated 10 percent disabling is remanded. The claim for an increased rating for right knee arthritis, rated 10 percent disabling is remanded. The claim for an increased rating for left knee instability, rated 20 percent disabling is remanded. REASONS FOR REMAND The Veteran had active duty from May 1969 to October 1970. The Veteran had requested a hearing before the Board of Veterans’ Appeals. However, by a July 2019 signed submission the Veteran’s authorized representative requested waiver of that requested hearing. Hence, the request for a hearing has been withdrawn. 38 C.F.R. § 20.702(e) (2018). 1. – 2. Claim for increased rating for anxiety neurosis, rated 50 percent disabling; claim of entitlement to a TDIU The Veteran and his representative have expressed entitlement to a 100 percent disability rating for his service-connected anxiety disorder, and alternatively entitlement to a TDIU due to his anxiety disorder or due to all his service-connected disabilities. The Veteran was afforded VA psychiatric examinations in January 2015 and September 2017 to address the severity of his service-connected anxiety neurosis. The January 2015 VA examiner noted that the Veteran was diagnosed with generalized anxiety disorder (GAD) with depressive disorder not otherwise specified (NOS). Other conditions noted to be relevant to understanding the Veteran’s condition included prostate cancer, type II diabetes, and hypertension. The examiner assessed that the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. This assessment was based on review of the Veteran’s medical and mental health records and claims file as well as examination of the Veteran. Social functioning, reported interests, activities, and interactions including upon examination all supported this assessment. At the September 2017 examination the Veteran was again assessed as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. A significant change in the Veteran’s mental health status was not found since the January 2015 examination despite the death of the Veteran’s brother within the past year, relatives threatened by an impending hurricane, and additional physical illness. The Board observes that these recent VA examinations appear consistent with each other and with treatment records and past examination findings. Subsequent to the September 2017 VA examination, the Veteran’s representative submitted a private disability benefits questionnaire (DBQ) by J.R., PhD, dated in April 2018, which assessed that the Veteran suffers from “a severe level of depression and anxiety.” The psychologist also provided a letter dated in July 2018 in which he again emphasized the severity of the Veteran’s depression and anxiety. Regrettably, the Board cannot at the present time resolve the conflicting assessments of the hired psychologist J.R. and the VA examiners in January 2015 and September 2017. It is notable that the VA examiner in September 2017 did not find appreciable difference in the Veteran’s psychiatric disability and functioning from that found in January 2015, in contrast to the Veteran’s self-report of deteriorating functioning and the severe level of impairment indicated in the private psychologist’s report. The difference in level of impairment between these VA and private evaluations is considerable, and cannot be reconciled without further examination by a different VA examiner. The Board recognizes the possibility of psychiatric deterioration since the most recent VA examination notwithstanding prior apparent stability in his psychiatric condition, and hence a more current mental health examination is warranted. The U.S. Court of Appeals for Veterans Claims has held that VA’s duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment. Littke v. Derwinski, 1 Vet. App. 90 (1990). The Veteran and his representative and the submitted private psychologist’s examinations, statements, and opinions amply raise the issue of unemployability due to disabilities the subject of appeal. The Board finds this to constitute an interrelated claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) based on disabilities the subject of appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Impact on employment capacity must be addressed upon remand examination. 3. – 5. Claims for increased ratings for left knee arthritis, rated 10 percent disabling, right knee arthritis, rated 10 percent disabling, and left knee instability, rated 20 percent disabling The Veteran’s knees were last examined for compensation purposes in June 2016, and the Veteran has submitted a private DBQ by Dr. F. S. dated in July 2015 reflecting more severe findings than those found by the VA examiner in June 2016, including notably the VA examiner not finding any instability in the left knee. However, the Veteran has more recently submitted evidence suggesting increased severity of his knee disabilities, including a February 2019 VA treatment record in which an orthopedist recommended bilateral knee replacement. A new VA examination is accordingly warranted to include retrospective evaluation of the Veteran’s knees to try to resolve discrepancies between the June 2016 VA examination and the submitted July 2015 private DBQ, and to address the current status of his knees. Treatment records should also be obtained inclusive of any surgical and hospitalization records. The matters are REMANDED for the following actions: 1. Complete any development necessary regarding the claim of entitlement to a TDIU, to include asking the Veteran to provide a report of her employment history from January 2013 to the present, including reasons for unemployment or underemployment over any intervals during the claim period. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran’s authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained, the Veteran and his representative should be appropriately notified. 3. Schedule the Veteran for an in-person examination to determine the nature and severity of his service-connected anxiety disorder, and the impact of that service-connected psychiatric disability on the Veteran’s functioning. The examiner should review the claims file, conduct a thorough in-person examination, and address the symptoms attributable to the Veteran’s service-connected psychiatric disability, and their impact on the Veteran’s capacity to perform work or work-like functioning as well as their impact on social interactions. Any necessary tests or studies should be conducted, and their findings should be reflected on the examination report. The entire claims file should be carefully reviewed, including in particular records of examination and treatment for psychiatric disability. Due to discrepancies between findings and conclusions of January 2015 and September 2017 VA examinations and findings and conclusions in a submitted private disability benefits questionnaire (DBQ) by J. R., PhD, dated in April 2018, and a subsequent letter by the same J.R., PhD, dated in July 2018, the examiner is asked to address the severity of psychiatric disability retrospectively, over the entire claim period, and attempt to address the contradictory evidence of record. The examiner should also review submitted lay statements and consider the Veteran’s statements at examinations. The examiner should address the presence or absence and impact on functioning including work or social functioning, of Axis I or Axis II conditions present during the claim period. The examiner should then specifically address the relative impact on the Veteran’s employment status of his service-connected psychiatric disability and other disorders identified in the record. If other conditions are not attributable to the Veteran’s service-connected psychiatric disability and are distinguishable in the symptoms and impact on functioning from the Veteran’s service-connected psychiatric disability, then the examiner should not include the symptoms and impacts on functioning of such other conditions when addressing the symptoms and impact on functioning of the Veteran’s service-connected psychiatric disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 4. Schedule the Veteran for an examination of the current severity of his disabilities of each knee, to include questions of impairment due to arthritis, instability, and limitation of motion, etcetera, by an examiner with sufficient expertise to evaluate all such disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be carefully reviewed. The examiner should note findings in VA treatment records and VA and private examination reports during the claim period. The examiner is to be advised that the current examination is based on the Veteran’s assertions of increased disability in each knee since the VA examination in June 2016. However, due to discrepancies between findings at that examination and findings in a submitted private disability benefits questionnaire (DBQ) by Dr. F. S. dated in July 2015, the examiner is asked to address the severity of each knee disability retrospectively, over the entire claim period, and attempt to address the contradictory evidence of record. The examiner is to be advised that the current examination is also required to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). To comply with the Correia v. McDonald, the examiner must test and record the range of motion of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Because disability of each knee must be rated separately, to the extent feasible, the current examiner should attempt to distinguish disability intrinsic to each knee from disability due to impairment of the other knee or due to other causes. All pertinent symptomatology and findings must be reported in detail in accordance with rating knee disabilities. All ranges of motion involving the Veteran’s service-connected left and right knee disabilities should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran’s disabilities, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), separately for each knee, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of symptoms and impairments during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 5. Undertake any other indicated development. 6. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.