Citation Nr: 18145531 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 10-10 070 DATE: October 30, 2018 ORDER Entitlement to service connection for a low back condition is granted. REMANDED Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. FINDING OF FACT The Veteran's degenerative arthritis of the lumbar spine is related to his active service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1976 until August 1976 and September 1977 until May 1979. These matters come before the Board of Veteran's Appeals (Board) from the August 2008 and July 2017 rating decisions of the Department of Veteran Affairs (VA), Regional Office (RO). Entitlement to service connection for Hepatitis C and an initial rating in excess of 10 percent for degenerative arthritis of the right knee were remanded by the Board in December 2015 and February 2017. In an October 2017 decision the Board denied the Veteran's claims for entitlement to service connection for Hepatitis C and an initial rating in excess of 10 percent for degenerative arthritis of the right knee. In response to the October 2017 decision denying the claims, the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In July 2018, the Court granted a Joint Motion Remand (JMR) filed by the parties, which requested a remand of the October 2017 decision addressing the claims. The appeal has now returned to the Board for further action. In October 2015, the Veteran was provided a Board hearing, via video conference, before the undersigned Veterans Law Judge. The hearing transcript has been reviewed. Entitlement to service connection for a low back condition With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that he has a low back condition related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a back disorder that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran's degenerative arthritis of the lumbar spine is etiologically related to the Veteran's active service. VA medical treatment records note the Veteran as having degenerative arthritis of the lumbar spine. While on active service the Veteran complained and was treated for chronic low back pain. In its July 2017 rating decision, VA conceded that in-service treatment records reflect complaints and treatment similar to the claimed condition. In a May 2017 VA examination report the examiner opined that the Veteran’s claimed back condition is less likely than not related to his military service. The examiner relied, in part, that the Veteran’s separation examination did not note a recurrent back pain or condition. However, the March 1979 Report of Medical History did note the Veteran with recurrent back pain. As the May 2017 medical opinion is based on incorrect facts, the Board finds it of no probative value. In light of the Veteran's confirmed in-service incurrence, the probative objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for degenerative arthritis of the lumbar spine and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for degenerative arthritis of the lumbar spine is granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for Hepatitis C is remanded. As noted above, in July 2018, the Court vacated the Board's October 2017 decision denying the Veteran's claim of entitlement to service connection for Hepatitis C. The parties found that the February 2017 VA medical opinion to be inadequate as it failed to provide adequate rationale. Thus, in compliance with the July 2018 JMR, the Board finds a supplemental opinion is necessary in regard to the claim. 2. Entitlement to service connection for an acquired psychiatric disorder, to include Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder is remanded. While the Veteran's claim currently on appeal was adjudicated as entitlement to service connection for PTSD by the RO, the medical evidence of record reveals an additional diagnosis of Major Depressive Disorder. The United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue has been recharacterized as shown on the title page and encompasses all reasonably related acquired psychiatric disorders, to include PTSD and dysthymia. The Veteran was provided a VA mental health examination in May 2017. The examiner concluded that the Veteran did not meet the criteria for PTSD. Additionally, the examiner opined the that the Veteran’s Major Depressive Disorder was less likely than not incurred in or caused by his military service. However, the examiner failed to provide a rationale for the offered medical conclusion. The Board finds that a supplemental examination/opinion is necessary prior to adjudicating this claim. The Board finds that an examination and opinion assessing the Veteran's current mental condition, his consistent lay statements, mental health treatment, and his active military service is appropriate. 3. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. The July 2018 JMR concluded that the February 2017 VA examination was not adequate as it failed to provide results for passive motion. Thus, in compliance with the July 2018 JMR, the Board finds a new examination is necessary in regard to the claim. The matters are REMANDED for the following action: 1. Obtain a supplemental clinical opinion in regard to the claim of entitlement to service connection for Hepatitis C. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's Hepatitis C is related to, or aggravated by, his military service. Any opinion should include a complete rationale. The clinician should consider the entire claims file, to include the Veteran's STRs and his credible lay statements of being forcibly shaved with dirty razors in-service. If the examiner cannot provide an opinion without speculation, the examiner must provide an explanation as to the basis for the conclusion that a non-speculative opinion cannot be offered. If the clinician cannot provide an opinion without another examination, the Veteran should be scheduled for such. 2. Schedule the Veteran for a VA medical examination in order to obtain a retrospective evaluation in regard to his service-connected right knee disability. The Veteran should be provided reasonable notice of the scheduled examination to ensure his ability to obtain transportation. The claims folder should be provided to the examiner in connection with the examination of the Veteran. The examiner should, to the extent possible, provide a retrospective opinion addressing prior range of motion of the right knee, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations from June 28, 2007, date of his initial claim. This retrospective opinion should also include comparison with any paired joints. 3. Schedule the Veteran for a VA mental health examination with the appropriate provider in regard to the claim to service connection for an acquired psychiatric condition. The clinician is requested to furnish the following opinions: a.) Whether it is at least as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric condition that is related to, or aggravated by, his military service and b.) Whether it is at least as likely as not that the Veteran has an acquired psychiatric condition that is related to, or aggravated by his service-connected disabilities. 4. In providing the requested opinions, the examiner is instructed to consider the Veteran's medical treatment records, previous diagnoses, his military service, and his consistent credible statements in regard to the claimed condition. Any opinion provided should include a complete rationale. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel