Citation Nr: 1400665 Decision Date: 01/08/14 Archive Date: 01/23/14 DOCKET NO. 10-30 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied service connection for depressive disorder and a bilateral knee disability. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board must remand the claims so that a VA examination and an addendum clarification opinion can be provided. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has a current diagnosis of depressive disorder, he reported experiencing some mental health issues in service and was noted as possibly having an adjustment disorder, he has stated that his depression has continued since service, and otherwise there is insufficient competent medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a VA examination is needed to determine whether the Veteran's depressive disorder is etiologically related to his service. With respect to the June 2010 knee examination, the VA examiner opined that ninety percent of the Veteran's left knee problem is "arbitrarily attributed" to the Veteran's 1992 work-related accident. The examiner further stated that the Veteran has been left with a minimal disability in the left knee as a result of a single episode of knee trauma which was sustained in service. It is unclear from these statements whether the examiner found that the Veteran's bilateral knee disability was or was not related to his active duty service. As the opinion is unclear, the claim must be remanded so that clarification can be provided. While on remand, appropriate efforts must be made to obtain any further VA treatment records from May 2010 forward, as well as any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain any further VA treatment records from May 2010 forward. Also appropriate efforts must be made to obtain any further medical records identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with an examiner of sufficient expertise to discuss the nature and etiology of his depressive disorder. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's depressive disorder was incurred or aggravated in service? Review of the entire file is required; however, attention is invited to the service treatment records that note an adjustment disorder, and the Veteran's SSA records, in which the Veteran states that he has been depressed ever since his 1992 work-related injury. A detailed rationale supporting the examiner's opinion should be provided. The examiner 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 to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After undertaking the development listed in Directive 1 to the extent possible, return the Veteran's claims file to the examiner who conducted the June 2010 VA knee examination (or another qualified medical professional, if that examiner is not available). The claims file must be reviewed by the examiner and a note that it was reviewed should be included in opinion. After reviewing the file, the examiner should provide a clarifying opinion as to the following: a. Explain what was meant by the statement that "the only aspect of [the current degenerative arthritis of both knees] that can even partially be attributed to the active duty medical record involves the left knee." b. Specifically, does this mean that it is at least as likely as not that the Veteran's current left knee degenerative arthritis is due, in part, to the in-service complaints of left knee pain? c. Is it at least as likely as not that the Veteran's current right knee degenerative arthritis is due to the Veteran's service. Again, attention is invited to the service treatment records, as well as the Veteran's SSA records, in which the Veteran states he has had knee pain since his 1992 work-related accident. In rendering the opinion, the examiner should use the phrases "more likely as not," "at least as likely as not," or "less likely as not," as appropriate, when evaluating the likelihood that the Veteran's bilateral knee disability is causally linked to his service. A detailed rationale supporting the examiner's opinion should be provided. The examiner 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 to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BETHANY L. BUCK 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) (2013).