Citation Nr: 21009235 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 04-42 207 DATE: February 22, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent disabling for service-connected left quadriceps femoris muscle fascial defect and muscle hernia with left posterior thigh lipoma and bilateral hip degenerative joint disease and osteoarthritis prior to May 21, 2013 and in excess of 40 percent disabling prior to January 6, 2020 is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression (hereinafter acquired psychiatric disorder) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from December 1972 to December 1992. This case was previously before the Board on multiple occasions, to include most recently in May 2020. In that decision, the Veteran’s claim for service connection for an acquired psychiatric disorder and entitlement to an increased evaluation for his service-connected left leg muscle strain were remanded for additional development, to include scheduling new VA examinations. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected left quadriceps femoris muscle fascial defect and muscle hernia with left posterior thigh lipoma and bilateral hip degenerative joint disease and osteoarthritis prior to May 21, 2013 and in excess of 40 percent disabling prior to January 6, 2020 is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). The Veteran contends that his service-connected left leg and hip condition warrants a higher evaluation throughout the appeal period. As a preliminary matter, the Board observes that Veteran was initially granted service connection a left leg muscle strain in January 1993. At that time, his disability was rated under Diagnostic Code 5399-5313. When an unlisted disease, injury or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding a “99” for the unlisted condition. 38 C.F.R. § 4.27. Pursuant to a February 2020 rating decision, the assigned evaluation for the Veteran’s service-connected left leg muscle strain was increased to 40 percent disabling under Diagnostic Code 5314. An effective date of January 6, 2020 was indicated. Under 38 C.F.R. § 4.73 (2018), an evaluation of 40 percent disabling corresponds with a severe disability and is the highest disability benefit permissible under Diagnostic Code 5314. In 1993, an initial rating was assigned based upon a different muscle group. Pursuant to AB v. Brown, 6 Vet. App. 35 (1993), the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. In this case, the record shows that the Veteran’s service-connected left quadriceps femoris muscle fascial defect and muscle hernia with left posterior thigh lipoma and bilateral hip degenerative joint disease and osteoarthritis (previously rated as ruptured quadriceps muscle, left leg) was evaluated as non-compensable under Diagnostic Code 5399-5313 from January 1, 1993; 10 percent disabling from May 21, 2013 under Diagnostic Code 5312; and 40 percent disabling from January 6, 2020 under Diagnostic Code 5314). Review of the record indicates that the Veteran has been afforded multiple VA examinations. In September 2003, a muscle injuries VA examination considered the Veteran’s left leg muscle strain under Muscle Group XIII, which is evaluated under Diagnostic Code 5313. A subsequent examination in May 2013, evaluated his left leg muscle strain under Muscle Group XII, which is rated under Diagnostic Code 5312. The most recent VA examination found that the Veteran’s left leg muscle strain included a loss of deep fascia. Therefore, it was evaluated as severe under 38 C.F.R. § 4.56(d), and the assigned Diagnostic Code was changed to 5314. No findings were reached as to the Muscle Groups previously considered when evaluating his left muscle strain. See 38 C.F.R. § 4.73, Diagnostic Code 5312, 5313, 5314. In May 2020, the Veteran’s claim was remanded for an addendum opinion. Specifically, the examiner was requested to offer an opinion regarding all identified muscle Group(s) involved in the Veteran’s service-connected disability and determine the level of severity associated with each Group. In render an opinion, the Board specifically called the examiner’s attention to VA treatment records which show treatment for a left knee medial meniscus injury in March 2006. As service connection has not been granted for that condition, the examiner was requested to differentiate the symptoms associated with the Veteran’s service-connected left leg strain and symptoms related to his non-service-connected knee condition. In June 2020, an addendum VA opinion was obtained. The examiner indicated that the Veteran’s left leg muscle strain affects muscle group XIV only. The severity was described as mild. A previous examination in January 2020, referenced intermittent pain in upper left anterior thigh described as causally related to his service-connected left quadriceps strain. Regrettably, the Board finds the January 2020 and June 2020 VA opinions inadequate and they failed to specifically address the May 2020 remand directives. As previously indicated, the VA examiner was requested to identify all muscle Group(s) involved in the Veteran’s service-connected disability, to include dating back to 1993; and assess the level of severity associated with each Group. The examiner was also requested to differentiate symptoms associated with the Veteran’s service-connected left leg muscle strain and symptoms related to his non-service-connected knee disability. The Board notes that a claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). As substantial compliance has not been established, the Board finds that an additional remand is required. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression (hereinafter acquired psychiatric disorder) is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. See also 38C.F.R. §3.159 (a)(3) (2019). In this case, the Veteran’s claims were previously treated as separate claims for service connection for PTSD, bipolar disorder, and depression. However, under Clemons, the Court held that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1(2009). Accordingly, the Veteran’s separate psychiatric claims were broadened and recharacterized as a single claim as reflected above. The Board notes that the Veteran underwent a VA examination for PTSD in March 2013. Therein, the examiner suggested a lack of mental health treatment during active service. However, treatment records confirm an in-patient admission to a VA medical facility in Jackson, Mississippi, in 1994. Again, in December 2014, a VA examiner failed to address favorable evidence of mental health treatment, to include during active service. Pursuant a December 2017 Board remand decision, the agency of original jurisdiction (AOJ) was directed to schedule a new VA examination. On examination in September 2019, a current diagnosis of bipolar disorder not otherwise specified, was rendered. Although the examiner acknowledged that the Veteran’s alleged service-related stressor met the diagnostic criteria for fear of hostile military or terrorist activity, his symptoms were deemed inconsistent with the diagnostic criteria for a current diagnosis of PTSD. Essentially, the stated opinion quoted the language found in the December 2014 VA opinion. In finding the above referenced opinion inadequate, the Board observes that service treatment records document the Veteran’s lay reporting of a nervous breakdown in January 1981 due to stress. During a dental evaluation in May 1985, he attended a stress management program. A report of medical history, dated March 1984, reference a prior hospitalization “for nerves” in October 1983. Reportedly, an additional in-patient admission due to a “brief psychotic episode” occurred in March 1985. No formal psychiatric diagnosis was identified. The Veteran acknowledged participation in group therapy, in July 1987. At separation, a report of medical history listed problems with sleep disturbance, depression, and nervousness in August 1992. The comments section referenced treatment for severe anxiety in October 1983. In spite of evidence noted above, all of the previous VA examinations were silent for any reference to in-service psychiatric treatment and failed to consider whether the Veteran’s in-service psychiatric treatment was causally related to his current acquired psychiatric disorder. Therefore, the examinations were deemed inadequate for VA purposes. In accordance with the May 2020 Board remand decision, an addendum opinion was requested to specifically address the question of whether the Veteran’s in-service psychiatric treatment was causally related to his current diagnosis of an acquired psychiatric disorder. Accordingly, the Veteran underwent an additional VA examination in September 2020. Again, the examiner suggested that service treatment records were silent for evidence of symptoms or treatment for a psychiatric condition. In March 1996, treatment records document an inpatient hospitalization for agitation and delirium of unknown etiology. No related symptoms were observed during the current examination. During a previous VA examination, dated March 2013, a diagnosis of an unspecified bipolar disorder was identified. The current examiner suggested that the condition was resolved or in remission due to a lack of evidence of ongoing mental health treatment or documented prescription of anti-depressants. Although the private physician’s opinion suggesting a current diagnosis of PTSD was acknowledged, no such diagnosis was deemed appropriate. Therefore, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s acquired psychiatric disorder was incurred in or otherwise causally related to active service. In support of the stated conclusion, the examiner determined that the Veteran’s psychiatric symptoms did not meet the diagnostic criteria for PTSD. While the Veteran endorsed use of prescribed medication, Seroquel; the medication was associated with sleep disturbance. Regrettably, the Board finds the above referenced opinion inadequate. Of note, the Veteran’s service treatment records document complaints of psychiatric symptoms, participation in a mental health evaluation and group therapy. Post-service treatment records show mental health treatment for depression, anxiety, and in-patient hospitalizations. While the examiner appeared to consider the private diagnosis of PTSD, no rationale or analysis was provided for the conclusion the stated diagnosis was unsupported by the record. In addition, the Board specifically observes that the VA examiner appeared to ignore evidence of psychiatric treatment for bipolar disorder as indicated by the assertion that the condition was “in remission” or “resolved.” In fact, VA treatment records document a mental status examination in 2013 where the Veteran’s condition was described as stable with use of prescribed medication, Seroquel. Seroquel is an oral medication commonly prescribed to treat mental health and mood conditions, such as bipolar disorder. Moreover, no opinion was offered regarding whether the Veteran’s in-service treatment for psychiatric symptoms was causally related to his current acquired psychiatric disorder. Accordingly, the Board notes that a claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). As substantial compliance has not been established, the Board finds that an additional remand is required. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims. 2. Schedule the Veteran for a VA examination with an appropriate clinician, to consider his reports of worsening symptoms associated with service-connected left leg muscle strain; to include dating back to 1993. The Veteran’s claims file and a copy of this remand must be provided to the examiner and any opinion rendered must confirm its review. All relevant diagnostic testing and related studies must be conducted and associated with the claims file. If available and appropriate, the Veteran should be offered an opportunity for a virtual evaluation. Throughout the appeal period, the Veteran’s service-connected left leg muscle strain has been evaluated under three different muscle groups pursuant to 38 C.F.R. § 4.73, Diagnostic Codes 5312, 5313, 5314. Diagnostic Code 5312, Group XII evaluates the muscles of the foot and leg identified specifically as the function of dorsiflexion (1); extension of toes (2); stabilization of arch (3) and the anterior muscles of the leg: (1) Tibialis anterior; (2) extensor digitorum longus; (3) extensor hallucis longus; (4) peroneus tertius. Diagnostic Code 5313, Group XIII evaluates the muscles of the pelvic girdle and thigh identified specifically as the function of the extension of hip and flexion of knee; outward and inward rotation of flexed knee; acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint. Also, the posterior thigh group, hamstring complex of 2-joint muscles: (1) Biceps femoris; (2) semimembranosus; (3) semitendinosus. Diagnostic Code 5314, Group XIV evaluates Function: Extension of knee (2, 3, 4, 5); simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial (Maissiat’s) band, acting with XVII (1) in postural support of body (6); acting with hamstrings in synchronizing hip and knee (1, 2). Anterior thigh group: (1) Sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris. In analyzing the severity of the Veteran’s disability throughout the appeal period, the examiner is specifically requested to analyze the following: (a.) Consider each of the identified groups above and determine which muscle Group is involved with the Veteran’s service-connected left leg muscle strain. (b.) If more than one muscle Group is involved with the Veteran’s service-connected left leg muscle strain, determine whether the Veteran is entitled to separate ratings for each muscle Group by indicating which muscle Groups are involved. (c.) For each identified muscle Group involved determine the severity of the Veteran’s left leg muscle strain during the appeal period. The examiner is to consider that the Veteran was noted as having a left knee medial meniscus injury in March 2006 that is not service-connected, and the examiner will need to differentiate any symptoms of the Veteran’s service-connected disability and the non-service-connected issue. Have the examining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to obtain an etiological opinion regarding his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran’s claims file and a copy of this remand must be made available for review. Any opinion offered must confirm consideration of the record evidence. All relevant diagnostic testing and related studies must be conducted and associated with the claims file. If available and deemed appropriate, an opportunity for a virtual evaluation must be offered to the Veteran. Thereafter, the examiner should address the following: (a.) Identify any and all psychiatric disorders that the Veteran currently suffers from, to include PTSD; (b.) Upon review and consideration of the Veteran’s service treatment records, to include any reference to symptoms, treatment, or hospitalizations for psychiatric issues during service. (c.) For any psychiatric diagnosis identified, the examiner is requested to opine whether it is at least as likely as not that the condition was manifested during or otherwise causally related to active military service, to include as due to complaints of psychiatric symptoms or treatment reflected in service treatment records. (d.) In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. The examiner is to consider and discuss the Veteran’s report of medical history in March 1984 that he was hospitalized for nerves in October 1983, the in-patient admission in March 1985 due to a “brief psychotic episode,” the group therapy for a period in July 1987, and the Veteran’s separation report of medical history in August 1992 which indicated trouble sleeping, depression, and nervousness, and the note that the Veteran was treated for severe anxiety in October 1983. Have the examining physician/specialist provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 4. Thereafter, re-adjudicate the Veteran’s claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.