Citation Nr: 1802535	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-00 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to a rating in excess of 20 percent for a ventral hernia (previously rated as hernia, abdominal).

2. Entitlement to service connection for a back disability, to include lumbosacral strain and degenerative arthritis of the lumbar spine.

3. Entitlement to service connection for a left knee disability, to include degenerative arthritis of the left knee.

4. Entitlement to service connection for an acquired psychiatric disorder, to include depression and to include as secondary to a hernia disability compensated under 38 U.S.C. § 1151.


REPRESENTATION

Veteran represented by:	James J. Perciavalle, Agent

ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1977 to June 1979.

These matters come before the Board of Veterans' Appeals (Board) from multiple rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

The initial rating decision denying the Veteran's claim for an acquired psychiatric disorder was issued in April 2010. A videoconference hearing was scheduled in April 2014. The Veteran did not appear at the hearing. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d).

The Board remanded the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder in August 2015 and December 2016 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).  A supplemental statement of the case (SSOC) was issued in March 2017.

A January 2016 rating decision granted a 10 percent rating for an abdominal hernia. The Veteran appealed that decision and a March 2017 rating decision granted a 20 percent rating under the diagnostic code for a ventral hernia. A statement of the case (SOC) was issued in April 2017.

A February 2017 rating decision denied service connection for a left leg and back disability, and an SOC was issued in March 2017.

The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and to include as secondary to a hernia disability compensated under 38 U.S.C. § 1151 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's postoperative residuals of hernia repair have not been manifested by a large ventral hernia that is not well supported by a belt under ordinary conditions.

2. The Veteran's current back disability, to include lumbosacral strain and degenerative arthritis of the lumbar spine, is not shown to have had its onset in service, arthritis was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service.

3. The Veteran's current left knee disability, to include degenerative arthritis of the left knee, is not shown to have had its onset in service, it was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 20 percent for status post ventral hernia repair have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.114, Diagnostic Code 7339 (2017).

2. The Veteran's back disability, to include lumbosacral strain  and degenerative arthritis of the lumbar spine, was not incurred in or aggravated by service and arthritis is not presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

3. The Veteran's left knee disability, to include degenerative arthritis of the left knee, was not incurred in or aggravated by service and is not presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist
(a) Duty to Notify

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the Veteran is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

The VCAA duty to notify was initially satisfied by way of pre-adjudicatory letters the RO sent to the Veteran in March 2010, April 2012, and November 2016. The letter informed the Veteran of the evidence required to substantiate the claims and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned.  The claims were last adjudicated by way of a March 2017 SSOC and SOC and an April 2017 SOC. Thus, the Veteran has received all required notice concerning the claims.

(b) Duty to Assist

VA also has a duty to assist a Veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's representative contends that the examinations provided by the Veteran for his left knee and back disabilities were inadequate as they did not address the Veteran's lay statements regarding continuity of symptomatology in the left knee and back since service, nor did the examiner address the service treatment records indicating a diagnosis of chondromalacia patellae or fluid around the left patella.

The Board finds that the history taken by the VA examiner indicates that the Veteran's lay statement regarding continuity of symptomatology were considered by the VA examiners in rendering their ultimate opinions. Additionally, the VA examiners opinions expounded upon the Veteran's STRs and subsequent medical treatment in making their opinions. Finally, the Board finds that the VA examiner specifically noted the Veteran's diagnosis of chondromalacia patellae in his opinion in regard to the Veteran's knee. The Board finds the opinions provided by VA examiners in regard to the Veteran's left knee and back claims to be fully supported after a thorough examination of the Veteran, including his lay statements, and his claims file. As such, the examinations are adequate, and a new examination is not required.

The Board finds that all other necessary development has been accomplished.

II. Increased Rating - Ventral Hernia

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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 would be necessary.

(a) Schedular

Ventral hernia is rated under Diagnostic Code 7339.  38 C.F.R. § 4.114, Diagnostic Code 7339.

Diagnostic Code 7339 provides a 20 percent rating for a small ventral hernia not well supported by a belt under ordinary conditions, or for a healed ventral hernia or post-operative wounds with weakening of the abdominal wall and indication for a supporting belt; a 40 percent rating for a large ventral hernia, not well supported by a belt under ordinary conditions; and a maximum 100 percent rating for a massive, persistent ventral hernia with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable.  Id.

The Veteran attended a VA examination in April 2016. At that examination the Veteran reported that he had his third hernia repair in 2016. The Veteran reported constant pain, which he described as a seven on a scale of one to 10. The Veteran indicated he took oxycodone as needed to treat his pain. He indicated he was unable to bend at the waist without pain, and was unable to walk more than 15 minutes, sit more than 15 minutes, or stand for more than 20 minutes. The examiner indicated that the Veteran's hernia was healed with a weakening of the abdominal wall, and the examiner noted that the hernia was well supported by a belt. 

As the Veteran's hernia is not large and is well supported by a belt, the criteria for a 40 percent rating have not been met. Accordingly, the claim for increase is denied.

(b) Extraschedular

The Veteran's representative asserted that the Veteran's disability warranted an extraschedular rating, as he needed constant support from a belt, was unable to walk or sit for more than 15 minutes or stand for more than 20 minutes, and he is unable to bend without pain. 

An extraschedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Specifically, the Court stated the determination of whether a Veteran is entitled to an extraschedular rating under § 3.321 is a three-step inquiry. First it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated there must be a comparison between the level of severity and the symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." 

Third, when an analysis of the first two steps reveals that 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 the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. 

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The symptoms purported to be not considered by the schedular criteria, including inability to walk, stand, or sit for extended periods of time and the constant need for a supportive belt, are contemplated under the rating criteria. The need for, and effectiveness of, a supportive belt is specifically delineated in the schedular criteria. The Veteran's symptoms of pain and inability to walk, stand, and sit for extended periods of time are contemplated by the criteria specifying whether or not the Veteran has a weakened abdominal wall. As a result, the Board finds the Veteran's ventral hernia disability picture is fully addressed by the rating criteria under which it is currently evaluated.

III. Service Connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

In this case, the disorders at issue are both a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). 

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

(a) Back Disability

The Veteran was diagnosed with a lumbosacral strain and degenerative arthritis of the spine at a November 2016 VA examination, meeting the first requirement of service connection.

The Veteran's service treatment records indicate treatment for back pain on multiple occasions. In May 1978, the Veteran was treated for a muscle spasm. At a follow-up appointment in June, the Veteran indicated that the back pain continued to come and go, noting that the medicinal balm that was provided was not offering substantial relief. In February 1979, the Veteran was again seen for back pain, and a back strain was diagnosed. In March 1979, the Veteran's STRs note that he has a history of back pain for several years, and had sustained a muscle strain after falling off a set of bleachers.

At the Veteran's exit examination, he reported that he was in good health and did not note any back pain. Additionally, the examination did not indicate any ongoing issues with the Veteran's back. Clinical evaluation of the Veteran's spine and other musculoskeletal system at separation was found to be normal. In the Veteran's statements, he alleges that his back pain has continued since being discharged from service. However, the contemporaneous evidence does not support this allegation. For example, in July 2003, the Veteran submitted claims for service connection for liver condition, diabetes, high blood pressure, cholesterol, and hepatitis C. In the VA treatment records from that same period of time, these are the Veteran's disabilities that he is reporting that he is experiencing at that time. In a January 2003 VA treatment record, the examiner noted that the Veteran "reports no pain at the present time." In May 2003, when reporting his medical history, the Veteran reported diabetes mellitus, hypertension, hyperlipidemia, and hepatitis C. The examiner wrote, "Patient's only complaint today is he has some tenderness at the base of his neck posteriorly and has some pain radiating down his right arm." In a June 2003 VA treatment record, the examiner wrote that the Veteran denied any treatment for any medical problems while in service. In that same treatment record, the examiner discussed the Veteran's "Medical History," which did not include back pain. In a separate June 2003 VA treatment record, it was documented that the Veteran reported he had sustained a gunshot wound to his back 12 to 15 years ago (1988 to 1991).

These facts tend to establish that the Veteran did not have ongoing back pain in the years following service discharge and then sustained a gunshot wound to his back approximately 10 years following service discharge. The Veteran was not reporting back pain at the time he reported the gunshot wound, but rather was providing the examiner with his medical history. In 2003, while seeking compensation benefits for other disabilities, the Veteran was not including a claim for a back disability, which tends to establish that he did not have continuous back pain, as he was not reporting back pain when he was seen multiple times by VA in 2003 and reported other disabilities, to include pain in his neck area, which radiated into his right arm. In a Disability Report that the Veteran submitted in December 2003 in connection with a claim for Social Security Administration (SSA) disability benefits, when asked what illnesses, injuries, or conditions limit his ability to work, the Veteran listed diabetes, cirrhosis, high blood pressure, and high cholesterol. 

The 2004 and 2005 VA treatment records also do not document complaints of back pain, versus multiple other health concerns. A May 2004 private hospitalization discharge summary report shows 13 final diagnoses, which does not include back pain or a back disability. A November 2005 examination in connection with the Veteran's claim for SSA disability benefits shows that the examiner noted that when he asked the Veteran his reason or reasons for applying for disability benefits, the Veteran responded with, "My liver." The physician noted that when the Veteran was specifically asked about hypertension, diabetes, and high cholesterol, the Veteran then acknowledged these disabilities. To reiterate, the lack of evidence of complaints of back pain, particularly at a time when the Veteran was reporting multiple medical complaints, tends to show that the Veteran was not having chronic back pain continuously since service discharge.

The Veteran subsequently added "arthritis" as a disability when he was seeking SSA disability benefits, which he appears to have added in approximately 2005 (he had been filing a claim for SSA benefits since approximately 2003). There is no specific location where the Veteran was claiming arthritis. The Board notes that a July 2003 VA treatment record shows the Veteran reported shoulder surgery for arthritis four years prior. But, even then, this inclusion of arthritis in 2005 was made more than 25 years following service discharge. When awarded SSA disability benefits in 2007, the Administrative Law Judge listed the Veteran's impairments as diabetes mellitus, depression, and chronic liver disease with cirrhosis. These impairments do not include a back disability.

A September 2014 VA treatment record shows that the Veteran was being evaluated for preoperative optimization of cardiopulmonary status "as well as other existing chronic conditions."  The past medical history did not include a notation of back pain. When the examiner reviewed the Veteran's systems, the examiner wrote that examination of the back revealed "No pain or tenderness on palpation."  Thus, more than 30 years following service discharge, and the Veteran was not reporting chronic back pain.

Since leaving service the Veteran has worked in multiple physically-demanding jobs, including working on a factory line and employment as a welder. 

At a VA examination in November 2016, the examiner opined that the Veteran's current back disability was less likely than not related to treatment in service for back pain. The examiner reviewed the Veteran's treatment in service for back pain and noted that the Veteran's back strains in service appeared to resolve without residuals. The examiner opined that the Veteran's degenerative arthritis of the lumbar spine was more likely the result of aging and physically demanding employment following discharge from service given that the Veteran's back strains in service resolved prior to separation, specifically noting the significant passage of time between discharge from service and the diagnosis of degenerative arthritis of the spine in 2016.

The Board acknowledges the Veteran's lay statements that he has experienced back pain since being discharged from service in 1979 and notes that the Veteran is competent to report symptoms of pain. However, the Board finds the contemporaneous treatment records, which date from approximately 2003 and show the Veteran complaining of multiple medical symptoms, but not back pain, do not support the Veteran's allegations of chronic back pain since service discharge. Additionally, the VA examiner's November 2016 opinion is more probative of the etiology of the Veteran's back disability when considering the Veteran's separation examination and the lack of treatment for back pain many years following service discharge. As such, service connection cannot be granted as the Veteran does not meet the third and final requirement of service connection-a nexus between the in-service injury and the Veteran's current back disability

The Board notes that degenerative arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331.

However, as noted above, the Veteran's separation examination did not include references to a continuing back disability or chronic pain associated with the Veteran's history of back pain noted in his STRs. Additionally, the claims file does not indicate complaints of continuous back pain or a low back disability until approximately 2016, which is 37 years after discharge from service. As the Veteran's current arthritis disability did not arise within one year of service and the preponderance of the contemporaneous evidence is against a lack of continuity of symptomatology between the Veteran's separation from service and the current disability, service connection on a presumptive basis must also be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim is denied.

(b) Left Knee Disability

The Veteran was diagnosed with and degenerative arthritis in the left knee at a November 2016 VA examination, meeting the first requirement of service connection.

The Veteran's service treatment records indicate treatment for left knee pain in July 1978. At that time, the Veteran indicated he had injured his knee seven months prior, but at the time he sought treatment, he had twisted his knee while running. The Veteran reported that his knee gave out and that he was unable to play basketball or engage in strenuous work. The Veteran was diagnosed with chondromalacia patellae. The Veteran had a follow-up appointment in September 1978 and was treated for fluid in the left patella. This incident resolved prior to discharge from service without any other issues.

At the Veteran's exit examination, he reported that he was in good health and did not note any knee or leg pain. Additionally, the examination did not indicate any ongoing issues with the Veteran's July 1978 knee injury. Additionally, a PULHES score of 1 was assigned for "L" indicating that the Veteran's lower extremities were normal at discharge. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).

The Veteran's statements indicate that his left knee pain has continued since being discharged from service. However, the Veteran's claims file does not indicate any treatment for or complaints of ongoing left knee pain until the Veteran filed his claim in November 2016. Since leaving service, the Veteran has worked in multiple physically demanding jobs, including working on a factory line and employment as a welder.

At the VA examination in November 2016, the VA examiner opined that the Veteran's current left knee disability was less likely than not related to the Veteran's diagnosis of chondromalacia patellae in July 1978 or any other incident in service. The examiner opined, after reviewing the Veteran's STRs and the Veteran's claims file, that because there was a lack of documentation regarding the Veteran's left knee prior to the x-ray findings of degenerative arthritis at this examination, the Veteran's left knee degenerative arthritis was most likely due to aging, not the July 1978 injury, which resolved prior to discharge from service.

The Board acknowledges the Veteran's lay statements that he has experienced left knee pain since being discharged from service in 1979 and notes that the Veteran is competent to report symptoms of pain. However, the Board finds the contemporaneous treatment records, which date from approximately 2003 and show the Veteran complaining of multiple medical symptoms, but not left knee pain, do not support the Veteran's allegations of chronic left knee pain. The analysis above regarding the lack of documentation of back pain apply to the left knee as well. The Veteran was seen for multiple ailments beginning in at least 2003, which did not include the left knee. The Veteran was not including his left knee in connection with his claim for SSA disability benefits. Additionally, the VA examiner's November 2016 opinion is more probative of the etiology of the Veteran's left knee disability. As such, service connection cannot be granted as the Veteran does not meet the third and final requirement of service connection-a nexus between the in-service injury and the Veteran's current left knee disability

The Board notes that degenerative arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331.

However, as noted above, the Veteran's separation examination did not include references to a continuing left knee disability or chronic pain associated with the Veteran's July 1978 left knee injury. Additionally, the claims file does not indicate complaints of continuous left knee pain or disability until 2016, which is 37 years after discharge from service. As the Veteran's current arthritis disability did not arise within one year of service and there is no continuity of symptomatology between the Veteran's separation from service and the current disability, service connection on a presumptive basis must also be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim is denied.


ORDER

Entitlement to a rating in excess of 20 percent for a ventral hernia (previously rated as hernia, abdominal) is denied.

Entitlement to service connection for a back disability is denied.

Entitlement to service connection for a left knee disability is denied.


REMAND

In a brief submitted by the Veteran's representative in support of the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, the Veteran's representative noted that the Veteran was treated in January 2016 at St. Margaret's Hospital. Upon review, the Board finds the Veteran's claims file does not contain these medical records, and, as such, the VA examiner would have been unable to consider these records in providing an opinion as to the etiology of the Veteran's depressive disorder. The VA examination indicates that the Veteran reported this hospitalization at his VA psychiatric examination as a source of his depression, and the VA examiner noted the lack of medical treatment records supporting the Veteran's contention in the opinion provided. As such, the Board finds the RO must attempt to obtain these medical records prior to making a decision on the issue of entitlement to service connection for an acquired psychiatric disorder. After these records have been obtained an evaluated, an addendum opinion to the January 2017 VA examination should be provided.

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran submit or authorize the release of any outstanding treatment records, specifically requesting authorization for any records from St. Margaret's Hospital in January 2016. All development efforts should be in writing and associated with the Veteran's claims folder.

2. After completing the above, the examiner who provided the January 2017 VA psychiatric examination should provide an addendum opinion after consideration of the January 2016 St. Margaret's Hospital records.

If the examiner who provided the January 2017 VA psychiatric examination is no longer available, a new examination should be provided, and after a complete review of the record, the examiner should: 

(a) Identify (by diagnosis) each psychiatric disability found.

(b) Identify the likely cause for each psychiatric disability diagnosed, to include unspecified depressive disorder. For each psychiatric disability diagnosed, the examiner should opine: 

(i) Is it at least as likely as not (a 50 percent or greater probability) that such disability is related to the Veteran's service, which was from July 1977 to June 1979, or events that occurred during service? In responding, the examiner should specifically consider and address the Veteran's reports of feeling depressed in service.

(ii) Is it at least as likely as not (a 50 percent or greater probability) that such disability is proximately due to the Veteran's service-connected ventral hernia? 

(iii) If the answer to (ii) is no, is it at least as likely as not (a 50 percent or greater probability) that such disability has been permanently aggravated by the Veteran's service-connected ventral hernia?

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs