Citation Nr: 21001536 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-15 176 DATE: January 8, 2021 REMANDED Service connection for posttraumatic stress disorder (PTSD), based on military sexual trauma (MST), is remanded. Service connection for a RIGHT knee disorder, to include as secondary to service-connected bilateral ankle and bilateral hip disabilities, is remanded. Service connection for a LEFT knee disorder, to include as secondary to service-connected bilateral ankle and bilateral hip disabilities, is remanded. An increased rating greater than 50 percent for depression, NOS, is remanded. INTRODUCTION The Veteran had active duty service from August 2005 to February 2013 in the U.S. Army. Subsequently, from 2013 to 2016, the Veteran had various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Tennessee Army National Guard. The issues of service connection for the knees and an increased rating for depression come to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). With regard to the separate service connection issue for PTSD, by law, a remand is necessary for the AOJ to furnish the Veteran with a Statement of the Case (SOC) for this issue. See 38 C.F.R. § 20.904(c) (2019); Manlincon v. West, 12 Vet. App. 238 (1999). In this regard, the AOJ denied the issue of service connection for PTSD in an October 2013 rating decision. The Veteran has filed a timely October 2014 Notice of Disagreement (NOD) within one year of that rating decision. This will be explained in further detail below in the Remand section of this Board decision. In March 2020, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. REASONS FOR REMAND 1. Service connection for PTSD, based on military sexual trauma (MST), is REMANDED. The issue of entitlement to service connection for PTSD, based on military sexual trauma (MST), is remanded for the AOJ to provide the Veteran with a Statement of the Case (SOC). On this matter, the Veteran filed a February 14, 2013 Application for Disability Compensation (VA Form 21-526EZ) for service connection for PTSD. The AOJ responded with an October 28, 2013 rating decision denying service connection for PTSD, but granting service connection for depression, NOS. (On this point, the Board is cognizant that the scope of a mental health disability claim is not always limited to one disability - Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). In response, the Veteran filed an October 6, 2014 Notice of Disagreement (NOD) (on a VA Form 21-0968) with the October 28, 2013 rating decision, specifically appealing the AOJ’s denial of service connection for PTSD based on a sexual assault. As such, a timely NOD was filed within one year of the October 2013 rating decision for the PTSD issue. See 38 C.F.R. §§ 19.20, 19.21, 19.52(a) (2019). But to date, the AOJ has not issued a SOC for the service connection for PTSD issue. The January 2017 SOC only addressed the issue of an increased rating for depression. The filing of the Veteran’s timely NOD places the service connection for PTSD claim in appellate status. Under 38 U.S.C. § 7104(a), all decisions by the Secretary “shall be subject to one review on appeal to the Secretary.” Since at this time the service connection for PTSD issue cannot be granted in full by the Board, due process requires initial AOJ adjudication in order to avoid prejudice. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Therefore, by law, this necessitates a remand for the AOJ to furnish the Veteran with a SOC for the issue of service connection for PTSD based on military sexual trauma (MST). See 38 C.F.R. §§ 19.20, 19.21, 19.52(a), 20.904(c) (2019); Manlincon v. West, 12 Vet. App. 238 (1999). 2. Service connection for a RIGHT and LEFT knee disorder is REMANDED. First, the AOJ has already secured most of the Veteran’s service treatment records (STRs) dated from 2005 to 2013 for her period of active duty service in the Army. However, the Board was unable to locate (in the claims file) any STR separation / discharge examination dated in 2013. Any STR separation / discharge examination, if it exists, would be important to the adjudication of the Veteran’s service connection claims for the knees. Therefore, the Board finds it necessary to remand these service connection issues to obtain any STR separation / discharge examination dated in 2013 or thereabouts in the possession of the National Personnel Records Center (NPRC), Records Management Center (RMC), or another appropriate facility. Any response must be documented in the claims file. Second, the AOJ has already secured personnel records from the Veteran’s service in the Tennessee Army National Guard from 2013 to 2016. The Veteran’s unit was listed as “HHT 278th Armored Calvary Regiment.” However, it appears that only limited personnel records from her period of National Guard service are present in the claims file. Therefore, the AOJ should contact the NPRC, the RMC, the State Adjutant General, the Commander of the Veteran’s National Guard Unit, the Army Human Resources Command, the Defense Finance and Accounting Service (DFAS), or any other appropriate Federal or State custodian, to secure any additional medical or personnel records dated from 2013 to 2016 for her Tennessee Army National Guard service. Any additional National Guard medical or personnel records dated from 2013 to 2016, if available, may provide more information on the existence of the knee disorders on appeal. If these National Guard records are unavailable or do not exist, a negative reply to this effect is required from the appropriate custodian. Third, for the bilateral knees issue, evidence indicates that there may be outstanding relevant VA treatment records. The Veteran at the March 2020 videoconference hearing testified that she was treated for and underwent X-rays for her bilateral knee disability on appeal at the VA Medical Center (VAMC) in Mountain Home, Tennessee in March 2020 and April 2020. In addition, the Board sees the Veteran’s VA treatment records on file from the above VAMC date to August 2018. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the knee issues on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran’s VA treatment records from the VAMC in Mountain Home, Tennessee, dated from August 2018 to the present. Fourth, the Board cannot make a fully-informed decision on the issue of service connection for RIGHT and LEFT knee disorders because no VA examiner has opined whether the Veteran’s current osteoarthritis in both knees (diagnosed in a November 2015 VA surgery consult) was incurred during her active duty in the Army from 2005 to 2013. See 38 C.F.R. § 3.159(c)(4). In addition, the VA examiner should opine whether the Veteran’s current osteoarthritis in both knees is proximately due to or aggravated beyond its natural progression by her service-connected bilateral ankle and bilateral hip disabilities, as this issue was reasonably raised by the record. See 38 C.F.R. § 3.310. 3. An increased rating greater than 50 percent for depression, NOS, is REMANDED. First, for depression issue, evidence indicates that there may be outstanding relevant VA treatment records. The Veteran at the March 2020 videoconference hearing testified that she had an upcoming appointment for her mental health problems at the VA Clinic in Knoxville, Tennessee in April 2020. In addition, the Board sees the Veteran’s VA treatment records on file from the above VA healthcare system dates to August 2018. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the depression issue on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran’s VA treatment records from the VAMC in Mountain Home, Tennessee, dated from August 2018 to the present. Second, for the service-connected depression disability, a remand is required for a current VA mental health examination. The Veteran was last provided a VA mental health examination in connection with her service-connected depression disability in July 2014, so approximately six and a half years ago. (Although the Veteran was afforded a more recent October 2018 VA psychiatric examination, according to that VA examiner, this examination was an initial PTSD examination to determine if she had PTSD attributable to an alleged in-service sexual assault, as opposed to an increased rating examination to rate the severity of her service-connected depression. Therefore, the appropriate Disability Benefits Questionnaire (DBQ) for an increased rating claim was not utilized at the October 2018 VA psychiatric examination). The Veteran has also testified that she continued to receive VA mental health treatment through 2020. See March 2020 videoconference hearing. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran’s service-connected depression (and possibly PTSD) disability. These issues are therefore REMANDED for the following action: 1. Pursuant to 38 C.F.R. § 20.904(c) (for legacy claims) and the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the AOJ should provide the Veteran with a Statement of the Case (SOC) addressing the issue of entitlement to service connection for PTSD based on military sexual trauma (MST). (This is if the AOJ continues to deny the PTSD claim). This SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal for this service connection for PTSD issue by submitting a timely Substantive Appeal (VA Form 9) in response thereto. (The AOJ should also advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this service connection for PTSD issue following the issuance of the SOC, unless the Veteran perfects her appeal of this issue by submitting a timely VA Form 9. In the alternative, the Veteran may elect to statutorily opt-in to the modernized review system under the Appeals Modernization Act (AMA)). 2. The AOJ should contact the NPRC, RMC, or any other appropriate facility and attempt to obtain the Veteran’s missing STR separation / discharge examination dated in 2013 or thereabouts. (The Board was unable to locate the Veteran’s STR separation / discharge examination in the claims file). If any missing STRs dated from 2005 to 2013 (such as the STR separation / discharge examination) are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these missing STR records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 3. The AOJ should contact the NPRC, the RMC, the State Adjutant General, the commander of the Veteran’s Tennessee Army National Guard Unit (HHT 278th Armored Calvary Regiment), the Army Human Resources Command, the Defense Finance and Accounting Service (DFAS), or any other appropriate Federal or State custodian, in order to secure any additional medical and personnel records from the Veteran’s time in the Tennessee Army National Guard from 2013 to 2016. Such records would include line of duty determinations, point statements, hospital records, examinations, etc. The Veteran says she served with the Tennessee Army National Guard from 2013 to 2016, with various periods of ACDUTRA and INACDUTRA. However, at present, it appears that only limited personnel records from her period of National Guard service are present in the claims file. If these National Guard records are unavailable or do not exist, a negative reply to this effect is required from the appropriate custodian. 4. The AOJ should obtain the Veteran’s VA treatment records from the VAMC in Mountain Home, Tennessee, dated from August 2018 to the present and associate them with the claims file. These records include, but are not limited to: (a.) VA treatment records and X-rays for a bilateral knee disability dated in March 2020 and April 2020; (b.) VA treatment records for depression at the VA Clinic in Knoxville, Tennessee dated in April 2020. 5. After completion of steps 1-4, the AOJ should schedule the Veteran for a VA examination for her bilateral knee disability. The examiner must review the claims file. The VA examiner must provide a rationale to support the opinion(s). If a clinical diagnosis cannot be provided for the Veteran’s bilateral knees, but the Veteran’s knee condition(s) manifests in symptoms that cause functional impairment, then the VA examiner should still consider the knees to be a “disability” for the purpose of providing the requested opinions below. (Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the knees). The VA examiner is asked to provide a response to the following: (a) Is any current bilateral knee disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s military service from 2005 to 2013, including the Veteran’s documented in-service treatment for bilateral knee problems? (b) Is it “at least as likely as not” (i.e., 50 percent or more probable) that current osteoarthritis of one or both knees manifested within one year after discharge from service (that is – did the osteoarthritis first manifest post-service between February 2013 and February 2014)? (c) Is any current bilateral knee disability “at least as likely as not” (i.e., 50 percent or more probable) proximately due to her service-connected bilateral ankle and bilateral hip disabilities? (d) Is any current bilateral knee disability “at least as likely as not” (i.e., 50 percent or more probable) aggravated by, i.e., worsened beyond its natural progression by her service-connected bilateral ankle and bilateral hip disabilities? The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate. For example, a disability can theoretically aggravate another disorder, even if it did not cause it. (e) In rendering the above opinions, the VA examiner is advised of the following: With regard to lay evidence, the Veteran testified that her knees began to hurt during active duty at the same time as her now service-connected ankles in 2005 and 2006. She emphasized she had to march with a 40-pound backpack along with other gear during training exercises. In providing the requested opinion, the VA examiner should consider the Veteran’s lay description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran’s lay reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Service treatment records (STRs) dated in 2005 and 2006 document multiple instances of treatment for left knee pain and tenderness and crepitus and cracking. This left knee pain began after an October 2005 injury in which the Veteran fell and hurt her ankle. The assessment was left knee patellofemoral syndrome, left knee joint pain, and left knee patellar tendonitis. STRs also document that in January 2011 the Veteran stepped in a grate, twisting her right ankle, and also hurting her right knee simultaneously. The diagnosis was a right knee sprain. STRs dated from 2008 to 2012 listed ongoing “chronic” problems as knee joint pain and patellofemoral syndrome and patellar tendonitis. In 2011 STRs the right knee sprain was listed as an “acute” problem. Post-service, six months after discharge, an August 2013 VA primary care admin note documented the Veteran’s report of “sharp” pain in the left knee above the knee cap. In a May 2014 VA call center note the Veteran requested a prescription for bilateral knee pain--from running and exercise-- that works better than her Meloxicam does. The Veteran continued to receive VA treatment for both knees in 2014 and 2015, including the issuance of a left knee brace. In an October 2015 VA primary care note, the Veteran denied any recent injury but says she fell a few times when she was in the Army and could have hurt her knees then. Also, October 2015 VA X-rays of the knees diagnosed the Veteran with “very trace early degenerative change in the right knee.” A November 2015 VA surgery consult assessed early primary osteoarthritis in BOTH knees. On testing there was slight laxity medially. 6. After completion of steps 1-4, the AOJ should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected depressive disorder (and PTSD if the AOJ determines it is also service-connected). The VA examination must be in accordance with the DSM-5. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinion. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The VA examiner must attempt to elicit information regarding the severity, frequency, and duration of psychiatric symptoms. To the extent possible, the VA examiner should identify any symptoms and social and occupational impairment due to the Veteran’s service-connected depression (and PTSD if the AOJ determines it is also service-connected). (Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination   is not feasible for evaluating the severity of the Veteran’s depressive disorder). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.