Citation Nr: 1648546	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-18 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for depressive disorder, not otherwise specified (NOS).

2.  Entitlement to a rating in excess of 10 percent for left knee residuals of a medial collateral ligament tear.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

A. Budd, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1991 to April 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision as to depressive disorder, and an August 2011 rating decision as to the left knee.  Both rating decisions were issued by the   Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  These matters were previously remanded by the Board in February 2014.  

The Veteran and his spouse testified before a Veterans Law Judge (VLJ) at a hearing in April 2013.  A transcript of that hearing is of record.  

The issues of entitlement to a rating in excess of 10 percent for left knee residuals of a medial collateral ligament tear, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's depression has been productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity.



CONCLUSION OF LAW

Throughout the rating period on appeal, the criteria for a rating of 50 percent and no higher have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. 
§§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.   

A June 2009 VA letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records and VA treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  Records from the Social Security Administration (SSA) have also been obtained.  38 C.F.R. § 3.159(c)(2).  There is no indication of relevant private treatment records.

VA examinations were conducted in September 2009 and August 2014.  The record does not reflect that the examinations were inadequate for purposes of rating the Veteran's disability.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiner reviewed the claims folder or obtained a medical history from the Veteran consistent with the claims folder, conducted an examination of the Veteran, and provided findings relevant to the criteria for rating the disability.    

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The Veteran was assisted at the hearing by an accredited representative from The American Legion.  The representative and the VLJ asked questions to draw out the current state of the Veteran's disability during the period on appeal.  The VLJ solicited information from the Veteran as to the existence of any potential outstanding evidence to substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).   

Law and Regulations

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In determining the present level of a disability for any increased evaluation claim, staged ratings must be considered.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 

When evaluating a mental disorder, the rating is to be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  The extent of social impairment must be considered, but a rating may not be assigned solely on the basis of social impairment.  See 38 C.F.R. § 4.126(b).  Age may not be considered as a factor in evaluating a service-connected disability.  38 C.F.R. § 4.19. 

A 30 percent disability rating is assigned for a mental disorder when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, DC 9434.

A 50 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work or social relationships.  Id. 

A 70 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted if the evidence establishes there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  Id.  

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994).  A GAF score ranging from 61 to 70 reflects the presence of some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulties in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally indicates one is functioning pretty well, and has some meaningful interpersonal relationships.  A GAF score of 51 to 60 is illustrative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  See Diagnostic and Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994); 38 C.F.R. § 4.130.   

Facts and Analysis

A June 2009 VA treatment note indicates that the Veteran reported he was discharged from his last job because he was unable to keep up with the normal work expectation.  The Veteran's mood was euthymic, his thought process was organized, and he denied suicidal or homicidal ideation.  His judgment was intact, and he was assigned a GAF score of 70, indicative of mild symptoms.  

A June 2009 Questionnaire as to Mental Residual Functional Capacity completed by the Veteran's treating VA psychiatrist has also been associated with the claims file.  This questionnaire indicated that the Veteran experienced moderate impairment of social interaction, including ability to accept instruction from or respond appropriately to criticism from supervisors or superiors, and ability to respond appropriately to co-workers or peers.  The psychiatrist indicated that the Veteran would be less anxious when having minimal contact with others.  The psychiatrist went on to find that the Veteran had marked impairment of his ability to perform and complete work tasks in a normal work day or week at a consistent pace; his ability to maintain attention and concentration for more than brief periods of time; and ability to perform at production levels expected by most employers.  The Veteran was noted to have moderate impairment of his ability to work in cooperation with or proximity to others without being distracted by them; ability to process subjective information accurately and use appropriate judgment; and ability to carry through instructions and complete tasks independently.  In the section of the questionnaire dedicated to adaption, the Veteran was noted to have marked impairment to his ability to respond appropriately to changes in a work setting and his ability to behave predictably, reliably, and in an emotionally stable manner.  His ability to remember locations and workday procedures and instructions, ability to be aware of normal hazards and take necessary precautions, and ability to tolerate customary work pressures were moderately impaired.  He had no impairment of his ability to maintain personal appearance and hygiene.  

A VA examination was conducted in September 2009.  The Veteran reported that he most recently felt depressed about two weeks ago.  He described the duration of his feeling of depression as approximately one week, and reported its severity as mild/moderate at that time, and minimal at present.  The Veteran stated that he slept 4-8 hours per night, and his sleep was interrupted by pain.  He denied anhedonia, and stated that his energy, concentration, and self-esteem fluctuate.  The Veteran and his wife had been married for twelve years at the time of the examination, but have been separated since 2005, which the Veteran attributed to financial problems.  The Veteran's children live with his wife, and the Veteran described his relationship with the children as "fine."  He had two close friends and two social friends.  His thought process and thought content was unremarkable, and his judgment was such that he understood the outcome of behavior.  His memory was normal.  The Veteran was assigned a GAF score of 70.  The examiner stated that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning.  

A September 2009 VA treatment note discussed nightmares related to his service that he believed may have been triggered by the VA examination.  In spite of these nightmares, his judgment was intact and his mood was euthymic.  The Veteran was assigned a GAF score of 65.  

In January 2010, the Veteran's mood was somewhat improved and he was less easily agitated, and rarely had nightmares.  However, the Veteran did discuss recent nightmares after the death of a family member, and discussed interrupted sleep.  His energy was low, and his thought process was logical, coherent, and goal-directed.  His mood was within normal limits, his memory was intact, and his concentration was intact to conversation.  Unfortunately, a March 2010 treatment note indicated an increase in nightmares such that he experienced them twice a week.  His mood was dysphoric and he was assigned a GAF score of 55, indicative of moderate symptoms.

In July 2010, the Veteran's nightmares improved to the point where he only had them once a week.  He discussed coping mechanisms when his mood wanes, and was assigned a GAF score of 55.  In January 2011, the Veteran's mood was stable in spite of the recent death of his grandmother, and he was not having nightmares.  His memory and concentration were fair, and his thought process was organized.  He was again assigned a GAF score of 60.  

A January 2012 treatment note indicates that the Veteran has ups and downs in mood, but is usually stable and thinks his mood is better.  He reported that his nightmares were much less frequent, the last occurring six weeks ago.  He reported occasional thoughts of death but denied any thoughts of self-directed violence or harm to others.  His thought process was organized, and his judgment was intact.  He was assigned a GAF score of 65.  

In March 2013, the Veteran reported recurrent bouts with depression.  He stated that sometimes it was hard to get things done when he felt down and out.  He felt that his nightmares got worse when dealing with his VA claim, and that he was bothered by his inability to physically do the things he did in the past.  His judgment was intact, and he was assigned a GAF score of 65.  

Another Questionnaire as to Mental Residual Functional Capacity was completed in March 2013.  This questionnaire indicated that the Veteran had marked impairment in every category of social interaction, indicative of impairment that seriously affects ability to function in a work setting.  His impairment in the areas of sustained concentration or persistence and adaption remained unchanged from the June 2009 questionnaire.  

A hearing was conducted in April 2013.  The Veteran described nightmares every two weeks or so and trouble sleeping, and asserted that his depression contributed to his leaving the workforce.  He stated that he had one friend, and that he is not violent, although he does have occasional outbursts towards people if they say the wrong thing to him.  He also testified that he becomes angry because he is unable to do the things he used to be able to do, and discussed strategies he uses to try to calm himself when he becomes irritated.  The Veteran's wife also testified to his irritability, and stated that she notices that the Veteran has a dragging, lingering mood, but is more uplifted around his children.

The most recent VA examination was conducted in August 2014.  The examiner indicated that the Veteran suffered from occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The examiner noted that the Veteran's symptoms were depressed mood, anxiety, and chronic sleep impairment.  He reported sleeping an average of 6 hours per night.  

The Board is required to resolve all issues material to the determination of this claim in favor of the Veteran where there is an approximate balance of positive and negative evidence.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the VA examinations indicate that the Veteran's psychiatric symptoms are at worst mild to moderate, and transient, such that they only decrease work efficiency during periods of significant stress.  By contrast, the Veteran's treating VA psychiatrist has indicated in June 2009 and March 2013 questionnaires that the Veteran has a marked impairment of his ability to behave predictably, reliably, and in an emotionally stable manner.  The questionnaire defines "marked" as an impairment that seriously affects the ability to function in a work setting.  This finding is directly relevant to the requirement by the rating schedule that occupational and social impairment with reduced reliability and productivity be assigned a 50 percent rating.  Therefore, although the symptoms discussed in the Veteran's treatment record are not among those listed under 50 percent in the rating schedule, the functional impairment caused by the Veteran's symptoms most closely approximates that of reduced reliability and productivity.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Therefore, a 50 percent rating is merited in this case.  

A rating in excess of 50 percent is not warranted because the Veteran's depression is not productive of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  Although the Veteran is separated from his wife, he has stated that this separation is due to financial circumstances, not his psychiatric disability.  He indicated that his relationship with his children was not strained in spite of this separation.  Therefore, there is no deficiency in his family relations due to his service-connected depressive disorder.  The Veteran's judgment has consistently been found to be intact in his VA treatment records.  Additionally, the questionnaires completed by the Veteran's treatment provider indicated moderate, rather than marked, impairment in the ability to use appropriate judgment.  The Veteran's outbursts of irritation have not risen to the level of impaired impulse control such as unprovoked irritability with periods of violence, as the Veteran testified in his hearing that his anger has not risen to the level of violence.  The Board finds that the consistently intact judgment in the treatment records coupled with the moderate impairment indicated by the questionnaire is closer to the impaired judgment contemplated by the 50 percent rating than the deficiency in judgment under the 70 percent rating.  

Although the questionnaires did indicate a marked impairment of ability to maintain attention and concentration for more than brief periods of time, the Veteran's thought process has consistently been described as well-organized, unremarkable, or within normal limits.  Additionally, the treatment notes indicate generally fair or normal memory, and there is no indication of suicidal or homicidal ideation, or delusions or hallucinations.  The record as a whole thus does not support a finding of deficient thinking.  

For these reasons, in spite of the Veteran's contention that his psychiatric disability causes or significantly contributes to his inability to work, even if the Board found a deficiency in mood, the record does not reflect that his depression is productive of functional impairment comparable to deficiencies in most areas.  Therefore, the Veteran's symptoms do not warrant a 70 percent rating.  

Total occupational and social impairment due to the service-connected depressive disorder, so as to warrant a 100 percent schedular rating, has not been shown in any medical reports, as outlined above.

Additional Considerations

The Board considered referral for extra-schedular consideration.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2015).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

With respect to the first prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular ratings for service-connected depressive disorder are inadequate.  The Veteran's disability is rated under Diagnostic Code 9434, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology.  Higher ratings are assignable, but the clinical findings do not show that the manifestations are present to warrant higher ratings.  The Board finds that the criteria for the currently assigned rating reasonably describes the Veteran's disability level and symptomatology.  Further inquiry is not required and referral for extra-schedular consideration is not warranted.  See Thun, supra.

Under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit-of-the-doubt under Mittleider v. West, 11 Vet. App. 181 (1998), this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating for compensation purposes based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  In this case, the claim for a TDIU is remanded, and will be discussed below.  


ORDER

Entitlement to a rating of 50 percent and no greater for depressive disorder (NOS) is granted.  


REMAND

As to the issue of entitlement to a rating in excess of 10 percent for left knee residuals of a medial collateral ligament tear, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 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 VA examination reports of record, including the report related to the most recent August 2014 examination, do not comply with Correia.  Accordingly, the Veteran must be afforded new VA examination to address the deficiencies noted above.   

The TDIU claim is dependent upon consideration of the severity of all of the Veteran's service-connected disabilities.  The TDIU claim is thus intertwined with the claim of entitlement to a higher rating for left knee residuals of a medial collateral ligament tear.  All issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Therefore, the TDIU claim must also be remanded.  

The claims folder should also be updated to include VA treatment records compiled since June 20, 2014.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1. Obtain all records of the Veteran's treatment from the North Florida/South Georgia Veterans Health System and all associated outpatient clinics, including the Tallahassee Outpatient Clinic, dated from June 20, 2014 to the present.  If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).  All attempts to obtain the records must be documented in the claims file.

2.  Thereafter, schedule the Veteran for a VA examination to ascertain the nature and severity of his left knee residuals of a medial collateral ligament tear.  The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail.  

Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing.  Additionally, these range of motion findings should be made as to the paired right knee joint.

The examination report should address whether the Veteran's functional ability is limited during flare-ups or when the left knee is used repeatedly over a period of time.  The examiner should provide the degree of any additional range of motion loss due to pain on use or during flare-ups.  If the examiner is unable to do so without resorting to speculation, he or she must explain why the information needed could not be feasibly provided, such as whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).

The examiner should also provide an opinion as to the functional impact of the service-connected left knee disability on the Veteran's ability to secure and follow substantially gainful employment consistent with his educational and occupational history, without regard to age or nonservice-connected disabilities.  A complete rationale must be provided for the opinion expressed.  

3.  The Veteran's claims file should be forwarded to a vocational expert for an opinion as to the functional impact of the service-connected left knee residuals of medial collateral ligament tear and service-connected depressive disorder, considered in combination, on the Veteran's ability to secure and follow substantially gainful employment consistent with his educational and occupational history, without regard to age or nonservice-connected disabilities.  A complete rationale must be provided for the opinion expressed.  

4.  After completing the above development, readjudicate the issues on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.  

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

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




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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