Citation Nr: 1807950 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-08 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and depression. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome, right knee. 3. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome, right knee (instability). 4. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active service from March 1974 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of August 2011, October 2013 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Salt Lake City, Utah and Janesville, Wisconsin. Jurisdiction over the case was subsequently transferred to the VARO in New Orleans, Louisiana. The Veteran testified at a hearing before a Veterans Law Judge at the RO in February 2014. A transcript of that hearing has been associated with the claims file and has been considered in support of the Veteran's claim. This matter was previously before the Board, most recently in April 2015, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. The issues of entitlement to higher ratings for the right knee disabilities and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The current acquired psychiatric disorder has been medically related to service. CONCLUSION OF LAW An acquired psychiatric disorder was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The service treatment records (STRs) are remarkable only for one note in May 1984 from the mental health clinic at Shaw Air Force Base (AFB) and Dr. P.F. about a meeting regarding rehabilitation with the notation of "P-enter rehab." No other documentation, treatment or diagnosis for any mental health disabilities is noted in the STRs. Post service evidence does not show complaints of, treatment for, or a diagnosis of a psychiatric disorder for many years after service. The Veteran filed the current claim in September 2010. In a September 2012 VA mental health examination, the Veteran related that he was recommended to see a psychiatrist in service; however, he attributed the onset of his psychiatric symptoms to January 2000, with persistent visual hallucinations and paranoid thinking, and subsequent development of auditory hallucinations around 2003, even with medication, that were aggravated by stress. He relayed a history of two psychiatric hospital admissions. The examiner opined that it was less likely than not that the Veteran's psychiatric disorder was incurred in or caused by the claimed in-service injury or event. She explained that the notation in the STRs regarding rehabilitation were not indicative of treatment, symptoms or a diagnosis of a mental health disorder while the Veteran was in the service; and, that there was no mental health diagnosis until approximately November 2000 with the Veteran's first psychiatric hospital admission. The diagnosis was paranoid schizophrenia. The Board places less probative value on this examination as the opinion is based solely on the absence of documentation of psychiatric symptoms for 16 years after service. The absence of documented treatment since separation from service cannot be the sole basis for a negative nexus opinion as the Veteran is considered competent to establish the presence of observable symptomatology and such lay testimony may provide sufficient support for a service connection claim. In particular, the examiner failed to consider the reported hallucinations in service, the report of a visit to see a psychiatrist while in service, and whether those symptoms represented clear evidence of the onset of schizophrenia - particularly, in light of the private examiner's opinion that the Veteran was a reliable historian with respect to his report of symptoms. Next, at a hearing before a Veteran's Law Judge in February 2014, the Veteran stated that he first experienced visual hallucinations manifested by visions of religious figures while in service, and that this "went on for years." He reported that he was encouraged to see a psychiatrist while in service, but feared the stigma of being considered "crazy" so he never sought treatment. He elaborated that he feared even telling family members about these visions for fear of being thought of as crazy. He admitted to feeling depressed in service, although he was not able to attribute the depression to any particular experience or trigger. In June 2014, Dr. M.P., a private board certified psychiatrist, noted the Veteran's history of psychiatric treatment and diagnoses of paranoid schizophrenia and a depressive disorder. In the letter opinion, she opined that it was at least as likely as not that the Veteran's schizophrenia began in service. She elaborated that even though the Veteran first received a diagnosis in late 2000, that his symptoms actually began in 1983 or 1984 during service with the reported hallucinations. She described him as a reliable historian with respect to his account of his past and current symptoms. In a subsequent July 2014 letter addendum, Dr. M.P. again noted the Veteran's 2000 diagnosis of schizophrenia; however, she indicated that it was not uncommon for individuals suffering from schizophrenia to go years without seeking treatment and that his friends and families' recognition of his paranoid thinking was the threshold needed for him to seek treatment. Dr. M.P. indicated that she thoroughly reviewed the claims file, including post service treatment records and conducted an extensive interview with the Veteran. The June and July 2014 private medical opinions are adequate because the physician thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusion reached. Therefore, the Board assigns them high probative value. Next, in April 2015, the Board remanded the issue for a secondary opinion on whether the Veteran's psychiatric disorder was caused or aggravated by his service-connected right knee disabilities. In an October 2015 opinion, the clinician stated that the Veteran's records were incomplete and that she would be unable to offer an opinion on the etiology of the Veteran's disability in the absence of supporting evidence. While she indicated that there was no clear evidence to suggest that the Veteran's psychiatric disorder was caused by or incurred during service in the absence of mental health treatment or complaints prior to 2000. This opinion is speculative and of little probative value. A February 2016 addendum opinion noted that all records were in fact available. On the basis of the evidence, the clinician opined that it was less likely than not that the Veteran's psychiatric illness was caused or aggravated by his service-connected right knee disabilities. However, the clinician merely quoted the opinion from the September 2015 VA knee examination which found that the Veteran's functional status had not been impaired by his right knee disability, and therefore, a contention linking his psychiatric disorder to his knee disability was medically implausible. While the February 2016 opinion supports a finding that secondary service connection is not warranted, it does not address direct service connection and is of little probative value on the direct service connection theory of entitlement. The Board has also considered the Veteran's lay statements. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. In this case, he is competent to describe his observations and feelings as they relate to his mental health. Based on the above, the preponderance of the evidence supports a grant of service connection. Therefore, the appeal is granted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER Service connection for an acquired psychiatric disorder is granted. REMAND Additional development is required for the remaining claims on appeal. Right Knee. While the Veteran underwent an examination in September 2015, the examiner did not conduct joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint as required under Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, another examination should be scheduled. TDIU. The claim for TDIU is inextricably intertwined with the right knee claims as well as the Board's grant of service connection for an acquired psychiatric disorder which has not yet been rated by the RO. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Schedule the Veteran for an examination to determine the current level of severity of all impairment resulting from his right knee disabilities. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner is asked to provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is also asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner feels that any of the requested opinions 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). 3. Conduct the appropriate development to adjudicate the claim of entitlement to TDIU, to include providing any necessary VA examinations. 4. Readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow for appropriate time for response. Then, return the case to the Board. 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. 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 (2012). ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs