Citation Nr: 18149080 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 273 DATE: November 8, 2018 ORDER Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s right hand disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the preponderance of the evidence is against finding that the disability is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s left hand disability began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The Veteran’s right knee disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the preponderance of the evidence is against finding that the disability is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for a left hand disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to March 1981. The Board notes the Agency of Original Jurisdiction (AOJ) only adjudicated whether the Veteran was entitled to service connection for depression. However, the record shows the Veteran has been diagnosed with other psychiatric disabilities, including affective disorder and bipolar disorder. Therefore, the Board has expanded the matter to include all psychiatric disabilities however diagnosed, and recharacterized the claim, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a compensable degree within one year after the date of separation from 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. §§ 1111, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). 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. 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. Where a chronic disease is shown as such in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If the condition noted during service or within the presumptive period is not shown to be chronic, a showing of continuity of symptomatology after service is required to establish service connection. 38 C.F.R. § 3.303(b) (2018). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for right and left hand disabilities The Veteran seeks service connection for right and left hand disabilities. The medical evidence of record reflects a current diagnosis of bilateral carpal tunnel syndrome as well as right hand arthralgia and arthritis. The Veteran’s service treatment record (STR) do not reflect any complaint, treatment, or diagnosis of a right or left hand condition. Notably, a October 1982 physical examination, indicates that clinical evaluation of the Veteran’s upper extremities was within normal limits. Additionally, on the corresponding report of medical history, the Veteran reported being in good health and expressly denied having arthritis, swollen or painful joints, or any bone or joint deformity. Further, the Veteran has not alleged, and the evidence of record does not demonstrate, an in-service injury, event, or disease to which his right or left hand condition could be associated. Moreover, private treatment records reflect the Veteran reported that his bilateral hand symptoms had its onset approximately in January 2015 and he denied any history of trauma to his wrists or hands. Upon a review of the evidence of record, the Board finds service connection is not warranted for right or left hand disabilities. The evidence of record is against finding an in-service event, injury, or disease related to the Veteran’s hands or evidence of a right or left hand disability for many years thereafter. As such, the most probative evidence of record indicates that the Veteran’s hand disabilities are not related to his active military service. The Board notes the preponderance of the evidence is against the Veteran’s claims; and as such, service connection for the Veteran’s right and left hand disabilities must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.307. Entitlement to service connection for a right knee disability The Veteran seeks service connection for a right knee disability, to include arthritis. The medical evidence of record reflects a current diagnosis of arthralgia on the right knee. Additionally, X-rays performed in March 2015 revealed mild degenerative joint disease on the right knee. The Board observes the Veteran’s STRs do not reflect any complaint, treatment, or diagnosis of a right knee condition. Notably, a October 1982 physical examination, indicates that clinical evaluation of the Veteran’s lower extremities was within normal limits. Additionally, on the corresponding report of medical history, the Veteran reported being in good health and expressly denied having arthritis, swollen or painful joints, bone or joint deformity, or a trick or locked knee. Further, the Veteran has not alleged, and the evidence of record does not demonstrate, an in-service injury, event, or disease to which his right knee condition could be associated. Moreover, private treatment records reflect the Veteran reported his right knee symptoms had its onset approximately in July 2014 and denied any history of prior knee injury, knee instability, numbness, tingling, or weakness. Upon a review of the evidence of record, the Board finds service connection is not warranted for the Veteran’s right knee disability. The evidence of record is against finding an in-service event, injury, or disease related to the Veteran’s right knee or a chronic right disability for many years after service. As such, the most probative evidence of record indicates that the Veteran’s right knee disability is not related to his active military service. The Board notes the preponderance of the evidence is against the Veteran’s claims; and as such, service connection for the Veteran’s right knee disability must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran seeks service connection for an acquired psychiatric disorder, which he contends is related to service. The medical evidence of record reflects a current psychiatric disorder, variously diagnosed as depressive disorder, affective disorder, and bipolar disorder. In a January 2016 statement, the Veteran alleged that his psychiatric disorder was the result of his military service from 1978 to 1981, specifically, his field training in Germany. The Veteran’s Military Personnel Records confirms his service in Germany. Moreover, his Military Personnel Records also document two disciplinary actions taken against him while he was stationed in Germany. To date, no VA examination has been obtained to address the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Under the circumstances outlined above, the Board finds VA must provide such examination pursuant to McLendon. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. Finally, because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a “significant impact” upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). Thus, the Board finds that the issue of entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, should be remanded as well. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims including any recent or additional treatment records related to the claimed disabilities. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e) (2018). 2. After the above is completed to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the nature of any acquired psychiatric disorder and to obtain an opinion as to whether such is possibly related to service. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether any diagnosed psychiatric disorder was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise related to his active service, to specifically include as result of his field trainings in Germany. In so opining, the examiner should address the Veteran’s disciplinary actions in July 1980 and November 1980. For the purposes of this opinion, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for hypertension. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. The Appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). J. A. Anderson Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel