Citation Nr: 20046971 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 16-00 316A DATE: July 14, 2020 ORDER Service connection for a left knee disability, variously identified as patellofemoral syndrome, tendinosis, and arthralgia, is granted. REMANDED Entitlement to a rating in excess of 20 percent for osteochondritis dissecans, chronic right ankle sprain (hereinafter, “right ankle disability”), exclusive of a period of temporary total rating from May 3, 2010 to November 30, 2010, is remanded. Entitlement to service connection for right knee disability, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran has a current left knee disability, variously identified as patellofemoral syndrome, tendinosis, and arthralgia. 2. It is at least as likely as not that the Veteran’s left knee disability has been aggravated by her service-connected right ankle disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1986 to June 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. The Veteran’s claim for service connection for a left knee disability was previously denied in a March 2005 rating decision. However, new and material evidence was thereafter received in April 2005, if the form of medical evidence linking the Veteran’s left knee disability to her service-connected right ankle disability. Accordingly, and because the claim was not thereafter readjudicated until March 2011, the current claim must be considered an original claim, rather than a claim to reopen. See 38 C.F.R. § 3.156(b). The Veteran’s psychiatric claim has been expanded to include all disorders that have been reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for a left knee disability The Veteran seeks to establish service connection for a left knee disability. She maintains that the disability is secondary to the service-connected disability of her right ankle. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence supports the Veteran’s claim for service connection for a left knee disability. There is no dispute that she has a current disability of her left knee, inasmuch as the available treatment records clearly reflect diagnostic assessments of patellofemoral syndrome, tendinosis, and arthralgia. In addition, a treating VA physician opined in April 2005 that the left knee disability had been “exacerbated and sped up secondary to her right ankle being non-weight bearing . . . , placing most of her stress over her left leg and knee.” There are no contrary opinions of record. The United States Court of Appeals for Veterans Claims (Court) has held that aggravation of a non-service-connected disability need not be permanent in order to establish service connection on a secondary basis under 38 C.F.R. § 3.310. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Accordingly, and in light of the foregoing, the Board is satisfied that the criteria for an award of service connection for the Veteran’s left knee disability have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to an increased rating for right ankle disability is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim. The record reflects that pertinent VA-generated evidence was added to the claims file after the agency of original jurisdiction (AOJ) last adjudicated the Veteran’s claim in a December 2015 statement of the case (SOC), and prior to certification, and that no supplemental SOC (SSOC) was issued. See 38 C.F.R. § 19.31. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial review by the AOJ if a Veteran submits evidence to the AOJ or the Board concurrent with or following the filing of a substantive appeal, that provision does not apply to evidence added to the file by VA, such as VA treatment records. 38 U.S.C. § 7105(e). A remand is required for the AOJ to consider the new evidence. The record also reflects that the Veteran was found to be disabled for her position as a letter carrier in 2012 due, in part, to the disability of her right ankle. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying that determination. Because such records could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Finally, the Veteran should be afforded a new examination of her right ankle that comports with the Court’s recent holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to service connection for right knee disability, to include as secondary to service-connected right ankle disability, is remanded. VA has a duty to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Under applicable law, a medical examination and/or opinion is deemed “necessary” if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the present case, the evidence demonstrates that the Veteran has a current disability of the right knee, to include degenerative changes. The evidence also suggests that the right knee disability may have been caused or aggravated by the service-connected right ankle disability. See, e.g., December 2010 and December 2014 VA treatment records (noting the Veteran’s reports that she developed knee pain after walking unevenly and undergoing physical therapy as a result of her right ankle disability). As such, an examination is warranted. Because no examination has thus far been obtained, further development is necessary. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is remanded. In her January 2012 notice of disagreement, the Veteran advanced argument to the effect that she suffered from a mood disorder/depression as result of her combined conditions and the mental effect they had had on her. Elsewhere in the record, she also raised the issue of her entitlement to service connection for PTSD based on military sexual trauma. Thus far, no specific development has been undertaken to address the Veteran’s PTSD claim. Neither has an examination and medical opinion been obtained to address the question of whether she has an acquired psychiatric disorder that has been caused or aggravated by her service-connected disabilities. That needs to be accomplished. These matters are REMANDED for the following action: 1. Undertake appropriate notice and development of the Veteran’s claim for service connection for PTSD based on military sexual trauma. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 3. Ask the United States Office of Personnel Management to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for disability retirement, to include any medical records considered in making a decision on that application, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. If the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran and her representative should be notified. 4. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 5. After the foregoing development has been completed, arrange to have the Veteran scheduled for an examination of her right ankle. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of her limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that she or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 6. Also arrange to have the Veteran scheduled for a VA examination of her right knee. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any right knee disabilities that are present. Then, with respect to each such disability, the examiner(s) should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. If it is the examiner’s opinion that it is unlikely that an identified disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran’s service-connected disabilities, to particularly include the disabilities of her left knee, right ankle, and feet, to include as a result of altered gait mechanics. A complete medical rationale for all opinions expressed must be provided. 7. Arrange, in addition, to have the Veteran scheduled for a VA mental disorders examination. The examiner(s) should review the record. All indicated tests (to include psychological testing, if necessary) should be conducted and the results reported. After examining the Veteran and reviewing the record, to include the results of any necessary testing, the examiner should indicate whether the Veteran has met the DSM-5 diagnostic criteria for PTSD. If it is the examiner's opinion that the diagnostic criteria for PTSD have been met, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to a verified stressor, to include military sexual trauma. If psychiatric disorders other than PTSD are diagnosed (or are found to have been present at any time pertinent to the present appeal), the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder had its onset in, or is otherwise attributable to, service. If it is the examiner’s opinion that it is unlikely that an identified psychiatric disability other than PTSD had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran’s service-connected disabilities. A complete medical rationale for all opinions expressed must be provided. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel 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.