Citation Nr: 21001878 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 20-08 132 DATE: January 12, 2021 REMANDED Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a bilateral bunion disability is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Army from January 1962 to January 1965. He also had a period of active duty for training (ACDUTRA) from July 1961 to December 1961. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for depression, PTSD, bilateral bunions, bilateral pes planus, right knee strain, left knee strain, and right hip strain. The appellant filed a timely Notice of Disagreement (NOD), received in August 2018. A Statement of the Case (SOC) was issued in January 2020. A timely substantive appeal was received in February 2020. The appellant agreed to, and was afforded, a tele-hearing before the undersigned Veterans Law Judge in November 2020. A transcript is of record. The Board has recharacterized the issues of entitlement to service connection for PTSD and depression as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant’s description of the claim, reported symptoms, and the other information of record). VA Medical Records The appellant testified during his November 2020 Board hearing that he received treatment at the Holcombe VA Hospital for back and knee pain between 1966 and 1968. He states that he was a VA employee during this period. The appellant was admitted to the VA Hospital in Houston, Texas, on June 30, 1967, for tonsillitis and chronic non-specific urethritis, and discharged July 3, 1967. An October 1976 VA Form 10-7132 states that this was the only admission at a VA facility and that there was no other record of a hospital admission of the appellant. A November 1976 VA Form 3230 Reference Slip states that the appellant had not been admitted at the hospital in 1965. However, these records appear to only indicate a lack of additional hospital admissions, rather than a lack of outpatient treatment. A February 1977 VA Form 119 Report of Contact states that, while the appellant’s health records were kept in his VA personnel file while he was a VA employee, such records had since been sent to the National Personnel Records Center (NPRC). Of record is a February 2018 VA Form 21-0820 Report of General Information which states that outpatient treatment records for the period January 2014 to August 2017 at the Houston VA Medical Center do not exist. A December 1976 VA Form 21-6789 indicates that medical records for the period 1966 to 1968 had been requested and that there was a follow-up to the request, but there are no such medical records in the file, and there is no indication that it was determined that such did not exist. It does not appear that any attempts have since been made to obtain any VA medical records in existence from prior to 2014, including from 1966 to 1968. VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, remand is warranted in order for the RO to undertake appropriate efforts to obtain and associate with the claims file any and all VA outpatient treatment records from prior to 2014, including from 1966 to 1968. 1. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) and depression, is remanded. The appellant contends that he developed an acquired psychiatric disorder as the result of stressful in-service events, such as serving as a paratrooper and being called to Ole Miss University to protect students during integration and had bricks and rocks thrown at him, in addition to racial slurs aimed at him. Additionally, he contends that he developed depression as a result of his service-connected tinnitus. VA’s duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. As there is an indication that the appellant has an acquired psychiatric disorder which may be causally related to a service-connected disability, the Board finds that the appellant should be afforded an appropriate examination to determine the nature and etiology of his claimed acquired psychiatric disorder. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. 5. Entitlement to service connection for bilateral pes planus is remanded. 6. Entitlement to service connection for a bilateral bunion disability is remanded. The appellant was diagnosed with bilateral knee osteoarthritis, bilateral knee osteophytes, bilateral genu varum, right hip osteoarthritis, bilateral flat foot (pes planus), bilateral hallux valgus, bilateral foot arthritis, bilateral plantar fasciitis, and bilateral post-surgical hallux valgus (bunionectomy) in March 2018. He contends that he developed such as the result of multiple parachute landings and the wearing of ill-fitting military boots while on active duty. The March 2018 contracted opinions regarding the diagnosed right hip, bilateral knees, and bilateral feet are all based primarily upon a lack of records showing continuity of treatment since service. The Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, remand is warranted to obtain new etiological opinions regarding the appellant’s right hip, bilateral knees, and bilateral feet disabilities. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain the appellant’s complete VA medical records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The Board is particularly interested in any medical records from the VA Holcombe Hospital between 1966 and 1968. 2. Afford the appellant an appropriate examination to determine the nature and etiology of any current psychiatric disability. Access to the appellant’s claims file must be made available to the examiner for review in connection with the examination. After reviewing the record and examining the appellant, the examiner should delineate all current psychiatric disabilities exhibited by the appellant, if any. The examiner should provide an opinion as to whether it is at least as likely as not that such psychiatric disability identified is causally related to the appellant’s active service or any incident therein. If not, the examiner should offer an opinion as to whether it at least as likely as that such psychiatric disability identified was proximately due to or the result of service-connected tinnitus. If not, the examiner should offer an opinion as to whether it is at least as likely as not that such psychiatric disability identified was aggravated (made worse) by service-connected tinnitus. If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. Diagnoses should be rendered in accordance with DSM 5 and a rationale for all opinions expressed must be provided. If depression is not diagnosed, an explanation should be provided. In providing the requested opinions, the clinician should consider the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant’s reported symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported in-service symptoms represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? 3. Obtain a medical opinion from an appropriate clinician (or clinicians) to determine the nature and etiology of the appellant’s diagnosed right hip, bilateral knee, and bilateral foot disabilities. The claims file must be made available to the clinician. The need for additional examination(s) of the appellant is left to the discretion of the clinician(s) rendering the requested opinions. The examiner should opine as to whether it is at least as likely as not that diagnosed right hip osteoarthritis, bilateral knee osteoarthritis, bilateral knee osteophytes, bilateral knee genu varum, bilateral flat foot, bilateral foot arthritis, bilateral plantar fasciitis, bilateral hallux valgus, and bilateral residuals of bunionectomy had their onset in service or are otherwise causally related to the appellant’s active service. The clinician’s attention is directed to the appellant’s contentions that repetitive trauma to the lower extremities and ill-fitting military boots caused the development of his current disabilities, that he self-treated his feet as much as possible, and that he has experienced continuing symptoms since separation. Attention is also directed to (a) service treatment records which include an April 1962 clinical note regarding a left knee injury and a June 1963 right ankle sprain following a parachute jump, but his October 1964 separation examination was essentially normal with respect to the lower extremities and feet and the appellant denied pertinent complaints on his Report of Medical History ; (b) the appellant’s September 2018 statement that he self-treated symptoms as much as possible due to poor treatment by superiors and fear of retaliation if he sought treatment too often, including due to racial animus on the part of his superior officers; (c) a June 1975 orthopedic examination report regarding left heel pain complaints following parachute jumps and an essentially normal heel examination; (d) his December 1976 hearing testimony regarding a parachute jump with awkward landing in 23-knot wind; and (e) his November 2020 hearing testimony. In providing the requested opinions, the clinician should consider the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant’s reported symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported in-service symptoms represented the onset of his current disabilities, this should be noted. Stated another way, do the appellant’s reports about his in-service injuries and symptoms align with how the currently diagnosed disabilities are known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.