Citation Nr: 1736630	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-04 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a bilateral ankle disorder.

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the right knee.

4.  Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the left knee.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney-at-Law



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S.M. Kreitlow


INTRODUCTION

The Veteran had honorable active military service from November 1991 to August 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued is July 2009 (knees and ankles) and May 2012 (acquired psychiatric disorder) by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in October 2014.  A transcript of this hearing is associated with the claims file.  Thereafter, in March 2015, the Board issued a decision in which it reopened the Veteran's claim for service connection for an acquired psychiatric disorder and remanded the merits of that claim, as well as the remaining claims on appeal, for further development and adjudication.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.



REMAND

Unfortunately, the Board finds that remand of the Veteran's claims is required for additional development prior to final adjudication in order to afford her all due process and to ensure VA complies with its duty to assist her in developing her claims to the fullest extent to ensure there is a complete record upon which to render a decision.

Bilateral Ankle Disorder 

The Board notes that, subsequent to the last Supplemental Statement of the Case being issued in April 2017, VA treatment records were associated with the claims file between May and August.  VA treatment records received in May 2017 show the Veteran was evaluated in March 2017 by Physical Therapy at which she complained of bilateral ankle pain, which she reported having for 20 years but getting progressively worse with increased pain in the past two to three years.  She reported pain in her bilateral ankles of an intensity of 6 out of 10.  Inspection showed the medial longitudinal arch was present in static standing but her bilateral feet externally rotated (right greater than left).  On gait assessment, she had decreased toe off and both lower extremities were externally rotated throughout the gait cycle.  Range of motion testing of the bilateral ankles showed active dorsiflexion was limited to 0 degrees and passive dorsiflexion was limited to 5 degrees.  All other ranges were within normal (full) limits (passive was not tested on all ranges).  Muscle strength was decreased at 4/5 throughout the ankles bilaterally, except for 4-/5 on inversion bilaterally.  

The Veteran had previously undergone VA examination in September 2015 at which time the VA examiner did not find any abnormal findings related to the Veteran's bilateral ankles except for checking "Yes" to there being a suspicion of instability or dislocation without explanation.  The VA examiner stated that the Veteran did not have a current diagnosis associated with the claimed bilateral ankle condition.   

In providing a nexus medical opinion requested by the Board in its March 2015 remand, the VA examiner opined the claimed bilateral ankle disorder is less likely than not (less than 50 percent improbability) incurred in or caused by the claimed in-service injury, event or illness.  His rationale is that there is no evidence of any ankle injuries which would cause a chronic ankle condition, and also the ankle examination was normal.  

However, the March 2017 physical therapy examination was clearly not normal thereby indicating a possible worsening of the Veteran's bilateral ankle condition of which she has been complaining since she was last examined and allowing a diagnosis of it.  

In addition, a private treatment note in the claims file from January 2010 show a diagnosis of tenosynovitis was given by her private physician.  The VA examiner did not address this diagnosis of record in rendering his medical opinion although it was given during the appeal period.  

Based on the foregoing, the Board finds that remand is warranted for a new VA examination of the Veteran's bilateral ankles to determine whether there is a current diagnosis to explain her complaints, to include the January 2010 diagnosis of tenosynovitis provided by the private physician.  A contemporaneous medical examination may be warranted in service connection claims when the condition is subject to worsening over time.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (The duty to assist includes providing the veteran a thorough and contemporaneous examination.).  Furthermore, a new medical nexus opinion should be obtained that includes consideration of all medical diagnoses of record regardless of whether the condition has resolved at the time of examination.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (requirement for current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed or during the pendency of the claim even though the disability resolves before final adjudication of the claim).  


Acquired Psychiatric Disorder 

In August 2017, the RO associated additional service records with the Veteran's claims file that include personnel records relating to her discharge from active duty by reason of a "personality disorder."  Prior to this, none of the service records associated with the Veteran's claims file provided any information regarding her discharge except for her DD Form 214, which merely showed the narrative reason for discharge was "personality disorder."  Thus, none of these new service records were before the RO at the time of the prior adjudications and they are clearly relevant to the present claim.  Consequently, the Board cannot proceed to adjudicate the Veteran's claim without the RO considering them first.  

Furthermore, the Board finds that these records appear to indicate there may be additional records available that have not been obtained.  Specifically, it appears that the Veteran underwent mental health treatment for at least a few weeks before her discharge in 1993, including with medication based upon a March 2017 statement she submitted along with a copy of a May 1993 clinical note from her service treatment records showing she was on Prozac.  Those mental health treatment records would be very relevant to the Veteran's claim and should be sought on remand.

In addition, the Veteran had previously submitted the copy of a July 1992 in-service Memorandum that recommended she participate in a Group therapy program once a week for four weeks from August 21, 1992 to September 11, 1992 at Community Mental Health Services at Fort Hood, Texas.  The Veteran testified at the October 2014 Board hearing that she attended those sessions but that she did not really remember the reason why her commander wanted her to do so.  However, the Veteran has reported that she witnessed her bunkmate commit, or attempt to commit, suicide and that she has had issues with that ever since.  See October 2014 Board testimony and April 21, 2017 VA Mental Health note and thereafter.  It may be possible that this treatment was related to that.  Whatever the reason, those treatment records may show the Veteran had mental health issues prior to going to Panama and, therefore, may be relevant to her claim.  
Consequently, the Board finds that remand is warranted to seek in-service mental health treatment records from when the Veteran served at Fort Hood, Texas and Panama.  Mental health treatment records are generally stored separately from regular clinical records for privacy purposes and, therefore, a specific request has to be made for them.  

Furthermore, at the October 2014 Board hearing, when asked how her mental health problems are related to her time in service, the Veteran testified that she had "a couple of instances" that she remembers a lot and that she does not like to talk about such as that "the girl above me tried to kill herself."  She indicates that she had talked with her therapist about these things but she was not aware if her therapist had written them down in her treatment notes.  Unfortunately, a review of her treatment notes shows no notation of the Veteran's military service from her initial mental health consultation in June 2011 (where she merely related she was counseled for anxiety related issues, treated with a trial of Prozac for two months and discharged for failure to adapt) until April 2017 when reported a history of trauma in the military with her mental health symptoms beginning after a bunkmate committed suicide.  Prior to that, all her mental health treatment focused on her health issues and how they affected her mental health functioning as her primary diagnosis was a "mood disorder secondary to a general medical condition."  The Board notes that the April 2017 treatment note was received in May 2017 after the last SSOC was issued.  Consequently, it has not been considered in adjudicating the Veteran's claim.  

Finally, the Board finds that a VA examination is warranted to establish a current diagnosis and to obtain nexus opinions.  Not only has the Veteran asserted that her current mental health disorder(s) is directly related to her military service, but the evidence raises the questions as to whether it may be secondary to her service-connected disabilities.  As to direct service connection, the Board notes that the new service records clearly demonstrate the Veteran was treated for depression in service in 1993; however, her depression was reported to be secondary to a personality disorder that was causing the Veteran to be unable to adjust to her new unit.  The VA treatment records currently show the following various diagnoses:  Mood Disorder (secondary to a general medical condition), Depressive Disorder, Not Otherwise Specified (NOS), Major Depressive Disorder (MDD), Anxiety Disorder/Generalized Anxiety Disorder (GAD), Panic Disorder, Somatoform Disorder, NOS, and Social Phobia.  As the Veteran is currently diagnosed to have depressive disorders, a medical opinion is needed to determine whether there is a medical nexus between her present depression and that seen in her service records.

Furthermore, the Veteran has a diagnosis of Mood Disorder secondary to a general medical condition and she is service-connected for chondromalacia of the bilateral knees (also diagnosed as patellofemoral pain syndrome in the VA treatment records) that she reports causes significant pain and limitation.  The Board acknowledges, however, that the VA treatment records show she has other significant medical problems to include fibromyalgia and IBS, which are not service-connected disabilities (she is currently seeking service connection for these disorders).  However, even if not solely responsible for her mental health issues, it is possible the Veteran's service-connected bilateral knee disabilities may play a significant role in her mental health problems and, therefore, a medical opinion is necessary to determine whether that is so.  

Service-Connected Bilateral Knee Disabilities 

As to the Veteran's bilateral knee disabilities, the Board finds that the evidence indicates there has been a worsening of her condition since she was last examined in September 2015.  VA treatment records associated with the claims file in May 2017, after the last SSOC was issued in April 2017, show the Veteran returned to physical therapy with reports of increased knee pain over the past two to three years.  She reported the intensity of her knee pain to be 7 out of 10 with functional difficulty with stairs, vacuuming, making the bed, dishes and laundry.  Active range of motion of the knees was limited to 85 degrees in the right knee and 95 degrees in the left knee.  At the September 2015 VA examination, the Veteran had active range of motion limited only to 135 degrees in the right knee and 130 degrees in the left knee, and the examiner stated she had no functional impairment due to her bilateral knee disabilities.  

As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of her service-connected bilateral knee disabilities.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Thus, the Board has no discretion and must remand these claims.

In addition, the Board notes that, while the Veteran's appeal was on remand, the Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016).  In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence of § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.  

The Veteran was afforded VA examinations in March 2009, April 2010 and September 2015.  A review of the reports of these examinations reveals that, although range of motion testing of both knees was conducted at all examinations, it is unclear whether it was active or passive, or was weight-bearing or nonweight-bearing.  Consequently, the Board finds that all three examinations are inadequate for rating purposes pursuant to Correia and remand is warranted for a new VA examination to obtain the appropriate range of motion testing.  In addition, a retrospective medical opinion would be helpful in satisfying the requirements of Correia.

Finally, with regard to all the Veteran's claims, the Board notes the Veteran submitted in March 2017 the copy of a May 2014 decision of an Administrative Law Judge that awarded her Social Security disability benefits effective January 2011.  According to the decision, she had claimed disability based upon anxiety, panic attacks, irritable bowel syndrome (IBS) and joint pain.  Consequently, there may be evidence in the Social Security Administration (SSA) records relating to the appellant's claims and such records should be obtained prior to the Board's adjudication.  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the Veteran's claims file outstanding VA and non-VA treatment records, including updated records from the VA New Jersey Healthcare System, including from the Lyons VA Medical Center and the East Orange VA Medical Center.

2.  Obtain the Veteran's Social Security Administration records.  All efforts to do show should be documented in the claims file, especially a negative response if records are not available.

3.  Request the appropriate agency conduct a search for the Veteran's mental health treatment records for the following periods and locations:
a)  From August to September 1992 at Fort Hood, Texas; and
b) From May 1993 to July 1993 at Fort Clayton, Panama.
A negative reply should be requested if any records are not available.

4.  After development requested in #1-3 has been accomplished, the Veteran should be scheduled for the following VA examinations.  The claims file should be made available to each examiner for review in conjunction with the examination.  

Each examiner should provide a complete explanation for all opinions given.  If an examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

Ankles examination - All necessary diagnostic tests and/or studies should be conducted.  After reviewing the claims file (to include this remand) and examining the Veteran, the examiner should render an appropriate diagnosis, if any, of all current ankle disorders, whether unilateral or bilateral.  In rendering a diagnosis, the examiner should consider and discuss whether any condition was present at the beginning of the appeal period (February 2009) but has resolved since, specifically considering the February 2010 diagnosis of tenosynovitis of the bilateral ankles provided by the Veteran's private physician.

If a diagnosis of an ankle disorder (whether unilateral or bilateral and whether present now or at any time during the appeal period) is rendered, then the VA examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the diagnosed ankle disorder is related to any injury, disease or event incurred during the Veteran's active military service.  In rendering an opinion, the examiner should consider and discuss the Veteran's lay statements as to an onset in service and a continuity since service (see especially her October 2014 Board testimony), as well as the June 2010 buddy/lay statements concerning onset and continuity.  

Knee and lower leg examination - The VA examiner should conduct an appropriate examination to determine the current severity of the Veteran's bilateral knee disabilities.  

All indicated tests should be performed.  The examiner is requested to delineate all symptomatology associated with, and the current severity of the bilateral knee disabilities.  In particular, the examiner should be requested to provide the following:

a.  The examiner should test the range of motion of the Veteran's bilateral knees in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible.  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.

b.  The examiner should consider the Veteran's reports of flare-ups and portray any related functional loss in terms of additional range of motion loss.  If the examiner is unable to do so, the examiner must indicate why.

c.  The examiner should review the prior VA examination reports from May 2009, April 2010 and September 2015 and provide a retrospective opinion which identifies the range of motion of the Veteran's bilateral knees in active motion, passive motion, weight-bearing, and nonweight-bearing.  If it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given.  

d.  The examiner should set forth all functional impairment caused by the Veteran's bilateral knee disabilities and the impact such has on the Veteran's ability to perform work-related functions.

Mental disorders examination - All necessary diagnostic tests and/or studies should be accomplished.  After reviewing the claims file (including this remand) and examining the Veteran, the examiner should render an opinion as to the following:

a. Is it at least as likely as not (i.e., at least a 50 percent probability) that any psychiatric disability is related to any injury, disease or event incurred during her active military service.  The opinion should address each of the Veteran's mental health disorder(s) diagnosed during the appeal, including:  

(i) Mood Disorder (secondary to a general medical condition), 
(ii) Depressive Disorder, Not Otherwise Specified (NOS), 
   (iii) Major Depressive Disorder (MDD), 
(iv) Anxiety Disorder/Generalized Anxiety Disorder (GAD), 
(v) Panic Disorder, 
   (vi) Somatoform Disorder, NOS, and 
   (vii) Social Phobia 

In rendering an opinion, the examiner should consider and discuss as necessary the evidence showing mental health treatment during the Veteran's service.  

b. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any currently diagnosed mental health disorder is proximately due to the Veteran's service-connected bilateral knee disabilities.  In rendering an opinion, the examiner should consider and discuss the evidence of record showing the Veteran is diagnosed to have a mood disorder secondary to a general medical condition and the extent to which her service-connected bilateral knee disabilities contribute to her mental health issues.

c. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any currently diagnosed mental health disorder is aggravated by the Veteran's service-connected bilateral knee disabilities.  

5.  After all additional development is complete and ensuring the VA examinations are adequate, readjudicate the Veteran's claims.  If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative.  An appropriate period of time should be allowed for response.  Thereafter, these claims should be returned to this Board for further appellate review, if in order.  

The Veteran has the right to submit additional evidence and argument on the  matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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