Citation Nr: 18153695 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-41 215 DATE: November 28, 2018 ORDER Service connection for depressive disorder is granted. REMANDED The claim for service connection for a left knee disability is remanded. The claim for service connection for a right knee disability is remanded. The claim for service connection for hypertension, to include as secondary to depression, is remanded. The claim for service connection for sleep apnea, to include as secondary to depression, is remanded. The claim for service connection for coronary artery disease, to include as secondary to depression, is remanded. The claim for service connection for a left leg disorder, to include as secondary to a knee disability, is remanded. The claim for service connection for a right leg disorder, to include as secondary to a knee disability, is remanded. The claim for service connection for a left foot disorder, to include as secondary to a knee disability, is remanded. The claim for service connection for a right foot disorder, to include as secondary to a knee disability, is remanded. The claim for service connection for a left hip disorder, to include as secondary to a knee disability, is remanded. The claim for service connection for a right hip disorder, to include as secondary to a knee disability, is remanded. FINDING OF FACT Psychiatric problems are demonstrated during service and a private psychologist has determined that the Veteran has depressive disorder that was incurred in service. CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSIONS As an initial matter, the Veteran’s attorney has raised the issue of entitlement to a total disability rating for compensation based on individual unemployability(TDIU), and this matter is referred to the Agency of Original Jurisdiction (AOJ). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). In cases such as this in which service treatment reports (STRs) are incomplete or unavailable, the obligation of VA to explain its findings and conclusions is heightened. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). However, O’Hare does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. Case law does not establish a heightened “benefit of the doubt,” only a heightened duty to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a Veteran’s medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). While the Veteran’s STRs from his active duty from February 1977 to August 1986 are not available, official military records reflect mental problems suffered by the Veteran during service and mental health professionals concluded that the Veteran was unfit for further service due to such problems. The record also reflects an uncontradicted opinion by a private psychologist received in November 2015 that references the in-service mental problems suffered by the Veteran and concluded that the Veteran had depressive disorder that was the result of service. In short therefore, there is sufficient evidence of record to warrant a grant of service connection for depressive disorder. REASONS FOR REMAND Argument submitted by the Veteran’s prior attorney in November 2015 and his current attorney in May 2018 referenced a statement by Homer Skaggs, M.D. that asserted a relationship between the Veteran’s psychiatric problems and the development of sleep apnea and coronary artery disease. Review of the record does not reflect this statement. As such, and given the grant of service connection for a psychiatric disorder above, the AOJ will be directed to conduct efforts to secure the statement by Dr. Skaggs, or document that such a statement if not obtainable. Regardless of the results of such development, the undersigned also finds that given the assertions of the Veteran’s attorney and the clinical evidence of relevant post-service symptomatology, the record indicates the need for a VA examination that includes opinions as to whether the Veteran has sleep apnea, hypertension, or coronary artery disease that was incurred in service or is proximately due or the result of the Veteran’s depressive disorder, to include by way of aggravation. With respect to service connection for a bilateral knee disability, the post-service clinical evidence reflects treatment for bilateral knee pain, to include the injection of lidocaine and Kenalog in both knees, with diagnoses to include arthralgia and degenerative joint disease. Given such evidence of post-service knee pathology, and as the Veteran is competent to assert that his knee problems began in service and have continued to the present time, the undersigned has assumed the credibility of such assertions and finds that the record indicates the need for a VA examination that includes an opinion as to whether the Veteran has a knee disability that was incurred in service. As the record otherwise reflects relevant post-service symptomatology associated with the other orthopedic disabilities alleged to be secondary to a knee disability, to include bilateral leg pain and hip pain (with diagnoses to include arthropathy in the hips), the undersigned finds that the record indicates the need for VA examinations that include opinions as to whether the Veteran has a leg, foot, or hip disorder that was incurred in service or is proximately due or the result of a knee disorder, to include by way of aggravation. For the reasons stated above, this case is REMANDED to the AOJ for the following action: 1. Obtain the statement from Dr. Skaggs referenced in argument submitted by the Veteran’s prior attorney in November 2015 and his current attorney in May 2018. If this statement is not available, such fact should be documented for the record. 2. Arrange for a VA examination(s) to address the claims for service connection for sleep apnea, hypertension, and coronary artery disease. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be reviewed by the examiner(s). Following a review of the record and examination of the Veteran, the examiner(s) is to address the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has sleep apnea, hypertension, or coronary artery disease as a result of service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran developed hypertension or coronary artery disease within one year of the Veteran’s August 1986 separation form service? c) Is at least as likely as not (a 50 percent or greater probability) that sleep apnea, hypertension, or coronary artery disease is caused by to the Veteran’s depressive disorder, to include by way of aggravation? A complete rationale for the opinions offered should be provided. 3. Arrange for a VA examination to address the claims for service connection for bilateral knee, foot, leg, and hip disabilities. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be reviewed by the examiner. Following a review of the record and examination of the Veteran, the examiner(s) is to address the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has a disability in either knee as a result of service? b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran developed arthritis in either knee within one year of the Veteran’s August 1986 separation form service? c) Is at least as likely as not (a 50 percent or greater probability) that a leg, foot, or hip disorder is caused by, to include by way of aggravation, to a knee disability incurred in service?   A complete rationale for the opinions offered should be provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel