Citation Nr: 21011833 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-01 641 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to an initial rating in excess of 10 percent left knee instability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2003 through September 2007 and January 2008 through July 2015. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from October 2015 and August 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board denied entitlement to increased ratings for low back and left knee disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the June 2019 Board decision and remand the these claims back to the Board for further consideration as consistent with the JMPR. The appeal has since returned to the Board. Entitlement to increased ratings for lumbar spine and left knee instability disabilities In the July 2020 JMPR, the parties agreed that the Board erred in failing to ensure that the duty to assist was satisfied in providing VA examinations for both the left knee and low back disabilities that comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the JPMR noted that the September 2015 VA examination did not provide estimates of limitations for non-weight-bearing or with active and passive motion. The April 2017 VA examination was similarly flawed because it did not discuss active motion, nor provide estimates of range of motion limitations on weight-bearing and non-weight-bearing. The JMPR instructed the Board to order new examinations which complies with the range of motion requirements laid out in Correia. Additionally, the Veteran has asserted that she has arthritis in her left knee. While the June 2019 Board decision noted the absence of imaging confirming the presence of arthritis, the parties agreed that the Board should consider whether x-ray testing is required under 38 §4.71a, DC 5003. Upon remand, the Board finds that x-ray testing of the Veteran’s left knee should be performed as part of the Veteran’s new VA examination. As such, further development is required. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran contends her acquired psychiatric disability is related to service. An August 2020 Supplemental Statement of Case (SSOC) continued the deny the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability because the evidence did not show an acquired psychiatric disorder, nor was there any evidence that an acquired disability is related to service. However, a February 2016 VA treatment note confirms that the Veteran has of active problems of anxiety and depression. VA treatment notes also contain the Veteran’s report that she was treated for low mood while in the military. Relatedly, a review of the Veteran’s service treatment records document depression screen examinations with elevated scores in 2013 and other reports from the Veteran during service that could potentially relate to symptoms of an acquired psychiatric disorder during service. Despite the aforementioned, no VA examiner has opined whether the Veteran’s current acquired psychiatric disorder is related to her service. As such, further development is necessary. Entitlement to a total rating based on individual unemployability is remanded. In the June 2019 Board decision, the Board found that the issue of TDIU has been raised by the record. Because a decision on the issues of entitlement to increased ratings for the Veteran’s low back and left knee disabilities and her claim for entitlement to service connection for an acquired psychiatric disability impact a decision on the issue of entitlement to TDIU, these issues are inextricably intertwined. Thus, a remand for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the severity of her service-connected low back and left knee disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must test for pain in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The VA examiner is asked to obtain x-ray imaging of the Veteran’s left knee. 2. Obtain an opinion as to the nature and etiology of the Veteran’s acquired psychiatric disability. The clinician is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acquired psychiatric disability is related to her active duty service? The examiner should discuss the Veteran’s in-service statements of symptomology related to depression. See VBMS, document labeled STR-Medical, receipt date 8/3/2015, page 62, STR-Medical, receipt date 7/15/2015, page 105, 147 of 148, STR-Medical, receipt date 7/15/2015, page 89 of 122 and CAPRI, receipt date 12/19/2019. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.