Citation Nr: 18139662
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-37 321
DATE:	September 28, 2018
ORDER
Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is granted.
Service connection for depression (as a separate claim) is dismissed.
REMANDED
An evaluation in excess of 10 percent before September 29, 2014 and in excess of 30 percent from September 29, 2014 for a left knee disability is remanded.
An evaluation in excess of 10 percent for a left ankle disability is remanded.
A total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran has several psychiatric diagnoses that include PTSD, bipolar disorder, depression, and alcohol dependence.  Although a separate claim for depression was on appeal, there is no evidence that the symptoms of depression are separate from the Veteran’s other acquired psychiatric condition symptoms and, furthermore, a July 2017 private evaluation found that his psychiatric symptoms were intertwined.  The Veteran’s depression symptoms cannot be distinguished from the symptoms of his other acquired psychiatric conditions, the grant of service connection for an acquired psychiatric condition will include the Veteran’s depression disability.
2. The Veteran was sexually assaulted in service. The Veteran reported that he was sexually assaulted while he was stationed on shore duty.  The Veteran reported that he did not want to stay his position because of the assault, but did not want to tell anyone about his traumatic experience.  He stated that he reported to his executive officer that he “did drugs” in order to be reassigned.  Personnel records show that the Veteran was counseled for drug activity in the summer of 1977 and that he was subsequently reassigned positions. 
3. The Veteran reported that he witnessed two suicides while in service.  Treatment records show that the Veteran reported ongoing intrusive recollections of these events, which caused “nightmares, difficulty falling asleep, feelings of estrangement, and anxiety.”  
4. Treatment records document ongoing psychiatric symptoms since the Veteran’s time in service.  In private treatment notes from 1995, the Veteran reported that he “suffered trauma during his duration in the Navy.”  Additionally, the Veteran reported on multiple occasions that he had been depressed since his separation from service.
5. In a July 2017 private psychological assessment, the psychologist found that the Veteran’s acquired psychiatric disorder was at least as likely as not related to the Veteran’s military sexual trauma experienced in service.  The examiner noted that the Veteran’s treatment history as well as his reported symptoms show that his acquired psychiatric disorder manifested in service and continued since that time.  Furthermore, the psychologist explained that the Veteran’s abuse in childhood and his left knee and ankle disabilities were not related to his current psychological symptoms. 
CONCLUSION OF LAW
The criteria for service connection for an acquired psychiatric condition have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.
A separate claim for depression must be dismissed as moot.  See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009).
REFERRED
The issues of “arthritis” and “bipolar disorder” were raised in a January 2012 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication.
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant is a Veteran who served on active duty from September 1976 to February 1979.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 
As an initial matter, the Board has recharacterized the Veteran’s claim for PTSD as a claim for an acquired psychiatric disorder.  The record shows that the Veteran has several mental health diagnoses.  Clemons v. Shinseki, 23 Vet App. 1, 5 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of the record).
Service connection for an acquired psychiatric disorder, to include PTSD and depression.
For the reasons stated above, service connection for an acquired psychiatric disorder is warranted.  
The Board notes that the Veteran’s claim for an acquired psychiatric disorder is, in part, predicated on the existence of an in-service sexual assault.  In cases of military sexual trauma, the law provides that VA will not deny a claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor.  Patton v. West, 12 Vet. App. 272, 279-280 (1999).  In this case, however, the Board is granting the full benefit sought on appeal related to the in-service sexual assault, and such records are no longer necessary. 
Although there is no VA psychiatric examination of record and pertinent evidence that could have been developed through the Patton notice has not been obtained, the record contains sufficient evidence for the Board to find that the Veteran’s currently diagnosed acquired psychiatric disorder, to include PTSD and depression, is related to his trauma experienced in service. 
VA is precluded from differentiating between the symptoms of the Veteran’s service-connected acquired psychiatric conditions and the symptoms of depression, in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). In this case, not only is it not possible to distinguish the effects of each condition, but the evidence expressly indicates that the symptoms of the conditions are indistinguishable.  See July 2017 private evaluation (indicating the symptoms are intertwined).  Therefore, the reasonable doubt doctrine dictates that all psychiatric symptoms must attributed to the service-connected acquired psychiatric condition. Id.   Furthermore, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran’s overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). Therefore, because there are no ratable psychiatric symptoms beyond the scope of the already service-connected pathology, there is no remaining nonservice-connected psychiatric disorder for consideration in this appeal and the separate claim for service connection for depression must be dismissed as moot. 
For these reasons, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for an acquired psychiatric condition (to include PTSD and depression). 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 
REASONS FOR REMAND
1. An increased rating for a left knee disability is remanded.
A review of the record shows that the Veteran’s last left knee examination was in September 2014.  VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 170 (2016).  
The previous examination does not fully comport with the requirements of Correia and therefore does not provide VA with the information it needs to decide the claim.  A new examination should be obtained to assess the Veteran’s left knee disability on remand, ensuring compliance with Correia.
2. The Board notes that the Veteran has instability and scars associated with his left knee disability that must also be evaluated in the examination.  Previous examinations revealed the Veteran had instability and in a September 2014 examination, the examiner found that the Veteran had two scars, one 15 cm and one 5 cm, on the left side of the knee from a previous surgery.  These associated manifestations of the Veteran’s left knee disability cannot be addressed until they are evaluated by a medical examiner.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (Board may only use independent medical evidence and may not substitute its own medical opinion for that of competent medical professionals).
3. An increased rating for a left ankle disability is remanded.
A review of the record shows that the Veteran’s last left ankle examination was in September 2014.  As stated above, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The previous examination does not provide VA with the information it needs to decide the claim and, therefore, a new examination should be obtained to assess the Veteran’s left ankle.
4. A TDIU rating is remanded.
As the issue of TDIU is dependent upon his evaluation for his left ankle and left knee disability (as well as his future evaluation for an acquired psychiatric disorder), the issue of TDIU is inextricably intertwined with the issues on remand.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).
The matters are REMANDED for the following action:
1. Ensure the Veteran’s updated VA treatment records are associated with the claims file. 
2. Schedule the Veteran for an examination of the current severity of his left knee disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner should evaluate the degree of instability in the Veteran’s left knee and evaluate the Veteran’s left knee scars.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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).
3. Schedule the Veteran for an examination of the current severity of his left ankle disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the Veteran’s left ankle disability on any occupational functioning and activities of daily

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living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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).

 
VICTORIA MOSHIASHWILI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Showalter, Associate Counsel 

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