Citation Nr: 1826366 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 14-39 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from September 1979 to October 1983. He also served in the Army National Guard from April 1998 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran requested a hearing before the Board in March 2015, but he withdrew his request in May 2015. The issue of entitlement to service connection for a right hip disorder has been raised by the record in February 2018 as well as a request for a higher evaluation for a right knee scar, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Although the issue of entitlement to service connection for the left knee was characterized most recently as a claim to reopen, relevant service treatment records have been associated with the claims file since the last final denial. Specifically, these new records included his navy service treatment records showing injury to his left knee during his first period of service. Therefore, VA must reconsider the Veteran's claim on the merits. See 38 C.F.R. §3.156(c). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The June 2014 examiner who conducted the left knee examination determined that VA Emergency Department records for the Veteran's visit in September 2010 were needed to determine whether the Veteran's left knee injury began during service. A new examination was provided for the knees in December 2017 but no opinion was obtained as to whether his left knee was due to the Veteran's military service. The emergency room record is included in the file. An addendum opinion is needed that considers the emergency room record and all records included in the file since the June 2014 examination. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. Here, the Veteran claims that his depression is caused by his left knee disability. The claims file shows that the Veteran has a current diagnosis of major depressive disorder. See January 2018 VA treatment record. The issue of entitlement to service connection for a left knee disability is also on appeal. Therefore, the Board finds that the evidence of record triggers VA's duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). In fact, the claim filed shows that the AOJ requested a VA examination for depression in April 2018 but it has not yet been scheduled. For these reasons, the Board finds this issue must be remanded so that the Veteran can be afforded a VA examination for his depression. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from a medical professional regarding whether the Veteran's left knee is related to his military service. The medical professional should be requested to review the file and the June 2014 and December 2017 examination reports. Upon completion of that review, the medical professional should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any currently present left knee disability is related to any disease or injury in service. The medical professional should keep in mind that the Veteran served on active duty with the Navy from September 1979 to October 1983. He also had inactive duty for training with the National Guard from September 9, 2000 to September 10, 2000, among other periods. The Veteran specifically claims that he injured his knee during his naval service and it was aggravated later during the National Guard service. In the alternative, he claims that he injured his left knee on September 10, 2000. The medical professional's attention is directed to the injury to his left knee while serving in the Navy dated in November 1982. The medical professional attention is also directed to the following document: a line of duty determination dated in October 2001 for an incident that occurred on September 10, 2000; an emergency room treatment record dated September 10, 2000; VA treatment dated September 14, 2000; October 2000 worker's compensation medical document noting an injury on September 10, 2000. A discussion of the complete rationale for all opinions expressed should be included in the examination report. An examination should only be provided to the Veteran if the medical professional feels that another examination is necessary in order to provide the requested opinion. If the medical professional is unable to offer any of the requested opinions, it is essential that he or she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule a VA examination to determine the nature and etiology of the Veteran's claimed acquired psychiatric disability. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. All indicated studies should be performed. Following review of the claims file and examination of the Veteran, the examiner should identify all currently present psychiatric disabilities. With respect to any currently present psychiatric disability, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disability is related to any disease or injury in service or was either caused or aggravated (worsened beyond normal progression) by any service-connected disability or by the Veteran's left knee disability. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. If the examiner determines that he is unable to provide the requested opinion(s) without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Upon completion of the examinations ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 5. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). The claims 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). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).