Citation Nr: 21072175 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-01 173 DATE: December 3, 2021 REMANDED Service connection for a left hip, to include as secondary to a service-connected disability, is remanded. Service connection for a right knee disorder, to include as secondary to a service-connected disability, is remanded. Service connection for an acquired psychiatric disorder is remanded. The appeal for a rating in excess of 10 percent prior to August 12, 2016, for a left foot disability featuring calcaneal spurs with hallux valgus and a rating in excess of 20 percent after August 12, 2016, is remanded. The appeal for a rating in excess of 10 percent prior to August 12, 2016, for a right foot disability featuring calcaneal spurs with hallux valgus and a rating in excess of 20 percent after August 12, 2016, is remanded. The appeal for a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for back pain is remanded. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for right hip pain is remanded. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for a left knee lateral meniscal tear is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty for training from July 1992 to March 1993 and on active duty from January 1994 to March 1996. The increased rating and TDIU issues come before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in August 2018, which granted a joint motion for remand (JMR) vacating a July 2017 Board decision and remanding the issues on appeal for additional development. The appeal initially arose from a May 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded these issues in April 2019. The issues for entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood, a left hip disorder, and a right knee disorder arose from a March 2018 rating decision. They were addressed in a March 2020 statement of the case and perfected for appellate review in April 2020. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that an initial claim of entitlement service connection for a specific psychiatric disorder should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. Therefore, the issue on appeal as to this matter has been revised to include consideration of the other applicable acquired psychiatric disorder diagnoses of record in this case. In September 2020, the Board remanded all the issues contained in this remand. VA received a January 2018 VA 21-526b Supplemental Claim for Compensation, which included a claim for service connection for erectile dysfunction. This claim was never adjudicated at the RO level; therefore, the Board is referring this issue for adjudication to the RO. 1. Service connection for a left hip, to include as secondary to a service-connected disability, is remanded. 2. Service connection for a right knee disorder, to include as secondary to a service-connected disability, is remanded. The above two issues were addressed at the same VA examination, on the same day; thus, the Board will address them together here for the sake of judicial efficiency. In a March 2021 VA examination for the Veteran's right knee, the examiner diagnosed a right knee strain. The Veteran reported he injured his knee as a result of altercation with Dallas police in 2012. The March 2021 examiner also noted that the Veteran has a non-antalgic shuffling gait with no gluteal swing through but did not address the cause in their opinion. The examiner did not provide an opinion as to whether the Veteran's right knee condition was aggravated by his service-connected disabilities nor does the examiner address whether the altered gait was caused by his foot disabilities when then caused or aggravated his right knee or left hip. In a March 2021 VA examination for hip pain, the Veteran was diagnosed with left hip degenerative arthritis. The Veteran reported that his symptoms began in 1994 when he fell from a telegraph pole. The examiner did not provide an opinion as to whether the Veteran's hip condition was aggravated by his service-connected disabilities, nor does the examiner address the Veteran's persistent report of symptoms since the in-service injury. Therefore, remand is required to obtain new VA examinations. 3. Service connection for an acquired psychiatric disorder is remanded. In September 2020, the Board remanded the Veteran's claim for service connection for an acquired psychiatric disorder back to the RO to obtain a VA examination. Unfortunately, the May 2021 VA examiner did not provide an opinion as to whether the Veteran's psychiatric disorder was aggravated by his service-connected foot condition and the pain from his feet. Further, the examiner stated that the Veteran's psychiatric disorder developed after service (within one year) but did not address the notation of treatment for alcoholism during service was indication of a potential underlying mental health issue. Therefore, a remand is needed to obtain an addendum medical opinion. 4. The appeal for a rating in excess of 10 percent prior to August 12, 2016, for a left foot disability featuring calcaneal spurs with hallux valgus and a rating in excess of 20 percent after August 12, 2016, is remanded. 5. The appeal for a rating in excess of 10 percent prior to August 12, 2016, for a right foot disability featuring calcaneal spurs with hallux valgus and a rating in excess of 20 percent after August 12, 2016, is remanded. Despite the additional and regrettable delay, another remand is required because the December 2020 VA examination for the Veteran's feet conditions did not provide an opinion on the estimated level of functional loss during flare-ups and did not provide an opinion that addresses whether the Veteran's additional foot conditions are aggravated by his service-connected feet conditions. Additionally, the examiner does not opine as to whether the Veteran's other foot conditions could be the result of the styloid surgery, which would be important for establishing service connection on a secondary basis. Therefore, a remand is needed to obtain another VA examination. 6. The appeal for a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. 7. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for back pain is remanded. 8. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for right hip pain is remanded. 9. The appeal as to whether new and material evidence was obtained to reopen a service connection claim for a left knee lateral meniscal tear is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's September 2020 remand directive to provide the Veteran with a statement of the case on the three above issues. See Stegall v. West, 11 Vet. App. 268 (1998). A remand is also required for additional development explained in the specific directives below. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Send the Veteran and his attorney a statement of the case that addresses the issues as to whether new and material evidence was obtained to reopen service connection claims for back pain, right hip pain, and left knee lateral meniscal tear. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected foot disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) Regarding the December 2020 VA examination opinion, are the Veteran's current feet diagnosis at least as likely as not (50 percent or greater probability) 1) CAUSED or 2) AGGRAVATED by the styloid surgery to correct his service-connected disability. (b.) Prior to the surgery, were the Veteran's symptoms for other feet disabilities at least as likely as not (50 percent or greater probability) 1) CAUSED or 2) AGGRAVATED by the styloid surgery to correct his service-connected disability. In evaluating the service-connected disabilities, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain another VA examination from an appropriate clinician for the Veteran's left hip and right knee disabilities. The examiner must address the following: (a.) The examiner must opine whether the Veteran's left hip or right knee disabilities at least as likely as not are (a) caused by; or, (b) aggravated (i.e., worsened) by the Veteran's service-connected disabilities, to particularly include his bilateral foot conditions. The examiner is reminded that he or she must address both prongs (a) and (b) above. (b.) Specifically, the Board notes the March 2021 VA examiner noted that the Veteran has a non-antalgic shuffling gait with no gluteal swing through. Is this condition at least as likely as not caused by the Veteran's service-connected foot disabilities? If so, did the abnormal gait CAUSE or AGGRAVATE the Veteran's left hip or right knee disabilities? (c.) The examiner must opine whether the Veteran's left hip and right knee disabilities are at least as likely as not are proximately due to the fall the Veteran experienced in service. [By law, a lack of medical treatment records in service, is not by itself, sufficient to deny service connection.] The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) 1) CAUSED or 2) AGGRAVATED by his service-connected disabilities. Whether to conduct a new VA examination or any other diagnostic testing is left to the discretion of the clinician. In answering the above, the examiner should address the following: (a.) The May 2021 examiner indicated the Veteran was sent to alcohol treatment and AA while on active duty. (b.) The Veteran was shot within one year of separation from service and witnessed a friend shot and killed, which was not prosecuted, and the Veteran began to have bad feelings toward people. [By law, if a chronic disability (including psychoses) manifest to a degree of 10 percent or more within the first year following discharge, it is presumed related to service absent "affirmative evidence to the contrary."] The May 2021 addressed this fact but did not assess to what degree the Veteran's psychiatric disorder could have manifested to during the first year after separation. (c.) Is at least as likely as not (50 percent or greater probability) that the Veteran's alcohol abuse in-service was a symptom of a manifested psychiatric disorder during service that was later aggravated by his post-service stressors? The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 6. Conduct any necessary development on the Veteran's January 2018 claim for service connection for erectile dysfunction; then, adjudicate the claim and make all legally required notifications to the Veteran and his representative. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.