Citation Nr: 21072289 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-56 856 DATE: December 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for the service-connected low back strain is remanded. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected low back strain, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected low back strain, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and a depressive disorder, including as secondary to the service-connected low back strain, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from November 1973 to November 1976 and from July 1982 to May 1987. In April 2021, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Board of Veterans' Appeals (Board) has recharacterized the Veteran's claims for service connection for PTSD and for depression as is listed above to reflect better the extent of the acquired psychiatric conditions he is seeking to service connect. (An award of service connection would result in the same compensation for all psychiatric symptoms.) Entitlement to an increased rating for the service-connected low back strain The Veteran seeks a higher rating for his low back disability. The record reflects that he was scheduled for a VA examination to ascertain the current severity of this disability in December 2018, as he was last examined by VA for his low back in December 2013. The Veteran failed to appear for the December 2018 VA back conditions examination, but submitted written statements in January 2021, at which time he stated that he never received correspondence from VA notifying him of the examination. In that regard, the claims file does reflect that a few notification letters sent from VA to the Veteran around that timeframe were "returned to sender" and marked "insufficient address unable to forward." Subsequent communications from the Veteran, however, confirm that the address VA used during that time is his correct address. See January 2021 Handwritten Statement from Veteran (wherein he explained why he failed to appear and noted his address at the top of the statement). Oddly, subsequent communications from VA to this address were not returned as undeliverable. Thus, the Board finds the Veteran's statements that he did not receive the notice to be credible as clearly something was amiss with his ability to receive mail at his address around the time that the notification of the examination was sent to him. Thus, good cause has been shown for his failure to appear for the December 2018 VA examination. Having shown good cause for failing to appear for the December 2018 VA back conditions examination, the Board finds that the Veteran should be afforded an opportunity to present for a new VA examination to assess the current severity of his service-connected low back disability before it can decide this claim. Entitlement to service connection for bilateral knee disability, to include as secondary to the service-connected low back strain The Veteran also seeks service connection for a bilateral knee disability which he asserts is due to his service-connected low back disability. He has not been afforded a VA examination to address the nature and etiologies of these claimed disabilities. Further, the Veteran's VA treatment records only reveal that he has been diagnosed with chronic pain of his bilateral knees. As such, a VA examination is needed to determine whether the Veteran has a current diagnosable right or left knee disability or pain amounting to a functional limitation in earning capacity in either knee and to obtain an appropriate etiological opinion, if needed, before the Board can decide these claims. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and a depressive disorder, including as secondary to the service-connected low back strain The Veteran also seeks service connection for an acquired psychiatric disability. He has asserted that he has PTSD due to stressful events which arose while performing his duties in service. He also asserts that he has a depressive disorder that he believes is due to pain he suffers from his low back disability. He submitted a private psychological assessment in July 2021, but it does not appear that this assessment is sufficient for awarding service connection for his psychiatric condition. Although the examiner stated that the Veteran met the DSM-5 criteria for PTSD, he supported this conclusion with information which included an Axis V GAF score, a hallmark of a DSM-4 diagnosis, which is no longer used in DSM-5 diagnoses. Further, it is unclear whether the asserted "stressor" meets the DSM-5 criteria for a diagnosis of PTSD, given the DSM-5 requirements. Thus, the Board can not solely rely upon this psychological assessment in deciding his claim. Also, the Veteran was scheduled to appear for a VA psychological examination in December 2018, concurrent with a VA back examination, but failed to appear. As previously discussed, good cause has been shown for his failure to appear, and the Board finds that a new VA examination is warranted in this case, given that the current evidence is insufficient for the Board to render a decision in this claim. The examination should diagnose all acquired psychiatric disabilities the Veteran has, or has been properly diagnosed with under the appropriate DSM criteria during the appeal period, and render appropriate etiological opinions for each condition. Entitlement to a TDIU The Veteran's claim for a TDIU is inextricably intertwined with the other claims being remanded herein. Therefore, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, these matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. 2. Then, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected low back strain. The examiner should review the claims file in conjunction with the examination, including the Veteran's April 2021 testimony regarding his current low back symptoms. All necessary tests should be completed, and all pertinent pathology associated with this service-connected disability should be annotated in the examination report. 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 upsas well as the degree of functional loss after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding additional functional loss due to repetitive use over time or flare-ups 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). A rationale for all requested opinions shall be provided. 3. Also after the development has been completed pursuant to directive 1, above, schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed right and/or left knee disability, to include any such condition manifested by chronic pain. The examiner should review the entire claims file, including the Veteran's April 2021 Board hearing testimony, and conduct all necessary tests and studies, to include imaging studies of the bilateral knees, and provide the following requested opinions: (a.) Does the Veteran have a diagnosable right and/or left knee disability manifested by pain on current examination or at any time during the pendency of the appeal (from December 2013 to the present)? (b.) If the Veteran does not have a diagnosed right and/or left knee disability manifested by pain on current examination or at any time during the current appeal, is his right and/or left knee condition characterized by pain that reaches the level of functional impairment of earning capacity? (c.) If the Veteran has either a diagnosed disability of the right and/or left knee, including such a disability manifested by pain that reaches the level of functional impairment of earning capacity of the right and/or left knee, the examiner should also answer the following: i. Is it at least as likely as not (i.e., 50 percent probability or greater) that such right and/or left knee disability was related to any incident of active service? ii. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such right and/or left knee disability was caused by his service-connected lumbar spine disability? iii. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such right and/or knee disability was aggravated (i.e., made worse) by his service-connected lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also after the development has been completed pursuant to directive 1, above, schedule the Veteran for a VA psychiatric examination with an appropriate examiner. The examiner should diagnose any acquired psychiatric disability, to include PTSD and a depressive disorder, using the DSM-5 criteria, that the Veteran has or has had at any time during the appeal period (from December 2013 to present). For each identified acquired psychiatric disorder, the examiner should provide an opinion on the following: (a.) Is it at least as likely as not (50 percent probability or more) that any such diagnosed psychiatric disorder originated during, or is otherwise etiologically related to, the Veteran's military service? If PTSD is diagnosed, the specific stressors giving rise to the condition must be identified. (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed acquired psychiatric disorder was caused by his service-connected lumbar spine disability, to include as a result of the pain he has suffered therefrom? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such acquired psychiatric disability was aggravated (i.e., made worse) by his service-connected lumbar spine disability, to include by the pain he has suffered therefrom? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.