Citation Nr: 20006975 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-10 122 DATE: January 28, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected bilateral knee disability, is granted. Entitlement to an earlier effective date for the grant of service connection patellofemoral pain syndrome of the bilateral knees is dismissed. REMANDED Entitlement to an increased rating for bilateral knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s acquired psychiatric disorder is proximately due to his service-connected bilateral knee disability. 2. The effective date for the grant of service connection for a bilateral knee disability is the day after his discharge from service—December 2, 2004. There is no legal entitlement to an earlier effective date, nor can there be a freestanding claim for an earlier effective date. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The request for an earlier effective date for service-connected patellofemoral pain syndrome of the bilateral knees is precluded by law and is dismissed. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2004 through December 2004. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from April 2015, July 2015, November 2015, and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedure history, the Veteran was denied an increased rating in excess of 10 percent for his bilateral knee disability in an April 2015 rating decision. He submitted a new and material evidence within one year of the April 2015 decision. In a July 2015 rating decision, claims for service connection for an acquired psychiatric disorder and lumbar strain were denied. New and material evidence was also received within one year of the July 2015 rating decision. A November 2015 rating decision continued to deny his service connection claims for an acquired psychiatric disorder and lumbar strain. The Veteran submitted a timely appeal. Thus, the April 2015, July 2015, and November 2015 rating decisions were not final. Entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected bilateral knee disability The Veteran contends that his acquired psychiatric disorder is caused or aggravated by his service-connected knee disability. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The record confirms a current disability of an acquired psychiatric disorder. See March 2019 VA treatment records and October 2019 Mental Disorders Disability Benefits Questionnaire. He is also service-connected for a bilateral knee disability. Thus, the first two elements for establishing secondary service connection are satisfied. The remaining question for the Board is whether his acquired psychiatric disorder was caused or aggravated by his service-connected bilateral knee disability. The Board finds the competent evidence of record is in relative equipoise on this nexus element. In June 2015, the Veteran was afforded a VA examination for his mental health complaints. He reported thoughts of harming himself and damaging things when angry. He admitted to using marijuana and had a history of alcohol use. He also used prescription drugs, such as Xanax. He was diagnosed with cannabis use disorder, alcohol use disorder, and personality disorder. After an examination of his file and the Veteran, the examiner opined that his anxiety and depressed affect were related to his long-term substance abuse. There was insufficient evidence of any mental health disorder secondary to his bilateral knee disability, as the substance use disorder and personality disorder sufficiently accounted for the Veteran’s mood, lability, and amotivation. In October 2019, the Veteran submitted correspondence from a private psychologist who diagnosed the Veteran with unspecified depressive disorder, unspecified anxiety disorder, and alcohol use disorder. The private psychologist opined that the Veteran’s suffered a significant injury to his knee in-service that more likely than not limited his ability to participate in pleasurable activities, and contributed to the development of depression and anxiety. His depressive and anxiety symptoms extended beyond what could be explained as a personality disorder. Further, the Veteran had used alcohol and drugs to cope with depressive symptoms. The private psychologist also documented that their disagreement with the June 2015 VA examiner’s assessment of a personality disorder based on the Veteran’s record and interview. Regarding medical evidence, there are conflicting medical opinions of record which were provided by competent and credible clinicians concerning whether or not the Veteran’s acquired psychiatric disorder was proximately due to his service-connected bilateral knee disability. As such, the most probative evidence of record is at least in equipoise as to whether the claimed acquired psychiatric disorder is related to service. To the extent that the Veteran has a personality disorder, service connection is not warranted for such as service connection for a personality disorder, absent a superimposed disability, is precluded by law. Resolving all doubt in favor of the Veteran, the record supports that he has a current acquired psychiatric disorder (depression and anxiety) that was caused by his service-connected bilateral knee disability. Effective Date Entitlement to an earlier effective date for a bilateral knee disability. Importantly, neither the Veteran, nor his attorney, has provided argument as to why an earlier effective date for the grant of service connection for his bilateral knee is warranted. The Veteran is assigned an effective date for his bilateral knee disability of December 2, 2004—the day after his discharge from service. There is no legal basis to support an effective date earlier than the day following discharge from service. REASONS FOR REMAND Entitlement to an increased rating for a bilateral knee disability is remanded. The Veteran contends that his bilateral knee disability has worsened. His last VA examination for this disability was in December 2015. Current treatment notes show continued complaints and treatments related to his bilateral knee disability. The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that his lumbar spine disability is related to service, to include as secondary to his bilateral knee disability. In May 2004, the Veteran service treatment records show treatment for reported back pain after lifting an object. In June 2015, the Veteran was afforded a VA examination for his lumbar spine disability. The Veteran reported back pain as a result of shifting from one leg to another because of his bilateral knee disability. He was diagnosed with lumbosacral strain. The examiner opined that it was less likely than not that his lumbar spine disability was proximately due to or the result of the Veteran’s bilateral knee disability. The examiner’s rationale included that he reported chronic back pain since service. Further, back strains could occur with twisting or pulling a muscle or tendon, either from an acute strain or prolonged repetitive movement. Shifting from one leg to another would not cause sufficient torque to the back as to cause a chronic back strain. The June 2015 VA examiner only considered whether the Veteran’s lumbar spine disability was proximately due to his service-connected bilateral knee disability. The examiner did not address whether the Veteran’s bilateral knee disability aggravated his lumbar spine disability, nor did the examiner address direct service connection. A new opinion is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with appropriate clinician to determine the current severity of his bilateral knee disability. 2. Forward the Veteran’s claims file to an appropriate examiner to provide a supplemental opinion as to the etiology of his lumbar spine disability. It is left to the examiner’s discretion whether reexamine the Veteran. The examiner is asked to opine whether it is at least as likely as not related to service, to include the Veteran’s assertion that his lumbar disability is related to his May 2004 in-service injury. The examiner is also asked to provide an opinion as to whether the Veteran’s lumbar spine disability was aggravated by his service-connected bilateral knee disability. (Continued on the next page)   The examiner is asked to provide a complete rationale for any opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.