Citation Nr: 1312062 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 07-27 758A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service connected left knee and lumbar spine disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. This matter was remanded in March 2011 for further development. The Board also remanded the issue of entitlement to service connection for a lumbar spine disability, to include lumbar spine degenerative joint disease. The AMC issued a May 2012 rating decision in which it granted service connection for degenerative joint disease of the lumbar spine. The grant of service connection constitutes a complete grant of the claim. Consequently, the issue is no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Right knee In an October 2001 statement in support of the claim (VA Form 21-4138), the Veteran stated that when he injured his right knee, he was treated at the VA Medical Center in Charleston, South Carolina in 1975. The claims file does not include any treatment records from the VA Medical Center in Charleston; nor does the record show that the records were requested. Rather, the treatment records on file are from the VA Medical Center in Columbia, South Carolina, and are dated July 1998 to the present. VA has a duty to obtain relevant VA treatment records. 38 C.F.R. § 3.159(c)(2)-(3) (2012). Psychiatric disability In its March 2011 remand, the Board noted that there was evidence that that the Veteran's psychiatric disabilities pre-existed service. The issue was remanded so that the Veteran could undergo a VA examination and so that the examiner could opine whether the Veteran's psychiatric disabilities were caused by, or aggravated by, service. The Veteran underwent a VA examination in April 2011. However, the opinion of the examiner is inadequate in that it is not entirely clear and it fails to comply with the proper statutory language. She stated that it appears that the Veteran's psychotic disorder and depressive symptoms had their onset prior to service, and that these disorders appear to have gotten progressively worse over time. She then stated that the worsening represented the normal progression of the disabilities. However, she also stated that it appears that knee and back pain have added to the depression to some degree. A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. In this case, the Veteran's entrance examination was normal. Consequently, the Veteran is presumed to have been in sound condition and the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. The April 2011 examiner did not state whether there was clear and unmistakable evidence that the Veteran's psychiatric disabilities preexisted service, and if so, whether there was clear and unmistakable evidence that the disabilities were not aggravated by service. Moreover, her opinions appear to be somewhat contradictory. She first stated that the worsening of the disabilities represented the normal progression of the disabilities. She then stated that it appeared that knee and back pain had added to the depression to some degree. Even in the absence of service connection on a direct basis, disabilities which are proximately due to or the result of a service-connected disease or injury shall be service connected on a secondary basis. 38 C.F.R. § 3.310. Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). Clarification is needed. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction should obtain records of the Veteran's treatment for knee or psychiatric disabilities at the Charleston, South Carolina VA Medical Center, including records of the Veteran's reported treatment for a knee disability in 1975. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. The Veteran should be informed of any records that cannot be obtained, of the efforts made to obtain the records, and of any further actions that will be taken with regard to his claims. 2. If the claim for service connection for right knee disability is reopened, the Veteran should be afforded a VA examination to determine whether any current right knee disability is, at least as likely as not, related to an injury in service. The examiner should review the claims folder. The examiner should provide reasons for this opinion that take into account the Veteran's reports of in-service injuries and in-service and post-service symptoms and treatment. If the examiner cannot provide an opinion without resorting to speculation, the examiner must provide a reasons as to why this is so, and must indicate what if any additional evidence would permit an opinion to be made. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. The Veteran should be afforded a VA examination for the purpose of determining whether the Veteran's current psychiatric disabilities are related to service or a service connected disability. The examiner should review the claims folder. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disability began during or is causally related to service. The examiner should also provide an opinion as to whether any psychiatric disability was caused, or aggravated (made permanently worse) by, his service connected lumbar spine and/or left knee disabilities. The examiner should comment on the December 1988 VA discharge summary reflecting the Veteran's reports that he attempted suicide by taking a drug overdose in 1971 and that he experienced auditory hallucinations prior to service. If psychosis is diagnosed, the examiner should indicate whether it was manifested in service or within one year of the Veteran's discharge from service in September 1975. Specifically, the examiner should render an additional opinion addressing: (a) whether any diagnosed acquired psychiatric disorder clearly and unmistakably preexisted the Veteran's entrance into service and clearly and unmistakably was not aggravated in service; and whether any (b) whether any in severity clearly and unmistakably represented the natural progression of the condition. The examiner should provide reasons for the opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner must provide reasons as to why this is so, and must indicate what if any additional evidence would permit an opinion to be made. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 4. If any claim on appeal remains denied, issue a supplemental statement of the case, before returning the record to the Board, 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 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 Supp. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).