Citation Nr: 21062599 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-29 818 DATE: October 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, post-traumatic stress disorder (PTSD), or substance abuse, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1982 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. At the outset, the Board notes that the Veteran filed claims for service connection for PTSD, depression, and substance abuse issues. As such, the Board has broadened the characterization of his claims into a claim for service connection for an acquired psychiatric disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). At the outset, the Board notes that the Veteran has not been afforded VA examinations with respect to either his claim for an acquired psychiatric disorder or his bilateral knee disability. VA's duties to assist claimants in the development of claims also may include scheduling a medical examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran's VA treatment records indicate that he has sought treatment for symptoms of depression and other mental health issues, as well as bilateral knee pain. As such, the first element of the McLendon framework has been satisfied. Additionally, the Veteran testified at his June 2021 hearing that his knee issues began as a result of his duties while in the Navy, which involved constantly being on his knees to peel and chip paint and to eradicate asbestos from the ship that he was stationed aboard. With respect to his acquired psychiatric disorder, the Veteran submitted a VA Form 21-0781 indicating that he witnessed a murder at a fast food restaurant in 1984 and that an ex-shipmate shot at him while he was in his car following a fight in San Diego in 1985. A service treatment record confirms that he went to the emergency room after being shot at in his car and had shards of glass removed from his elbow. The Board also notes that the Veteran's service personnel records indicate that the Veteran was disciplined for underage possession of alcohol in December 1984, interviewed for drug and alcohol abuse documentation in February 1985, and discharged in August 1985 due to poor performance and failure to meet growth criteria. Ultimately, this evidence satisfies the second element of the McLendon test. Moreover, the Veteran's hearing testimony and other evidence of record, such as his VA treatment records, suggest that his mental health symptoms and knee pain could be related to his military service. To date, however, no VA examinations have been scheduled with respect to these claims. As such, the third and fourth parts of the McLendon test are met, and remand is necessary for the RO to obtain VA examinations with respect to these conditions. Last, the Board notes that the Veteran submitted his VA Form 21-0781 in November 2020, after the matter was certified to the Board. To that end, the RO has not yet been able to undertake development to verify these stressors to the extent that he could have a current diagnosis of PTSD. For this reason, remand is necessary to allow the RO to attempt to verify these stressors. Accordingly, the matters are REMANDED for the following action: 1. Undertake development to obtain evidence to verify the PTSD stressors as listed on the Veteran's VA Form 21-0781 and as further described in testimony before the undersigned. 2. Thereafter, obtain and associate with the claims file any outstanding VA treatment records and outstanding, relevant private treatment records. 3. Next, arrange for the Veteran to undergo a VA examination to obtain findings with respect to the nature and etiology of his bilateral knee disability. The contents of the entire claims folder, to include a copy of this Remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner is asked to opine as to whether the Veteran's bilateral knee disability at least as likely as not (approximately 50 percent probability or greater) had its onset during, or is otherwise related to, his military service. All necessary tests and studies should be performed, with all findings made available to the examiner prior to completion of his or her report. All clinical findings should be reported in detail. A rationale for any opinion offered should be provided. In doing so, the examiner is reminded to consider the Veteran's lay contentions, including his June 2021 hearing testimony. 4. Additionally, arrange for the Veteran to undergo a VA examination to obtain findings with respect to the nature and etiology of the Veteran's acquired psychiatric disorder. The contents of the entire claims folder, to include a copy of this Remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner is asked to do the following: (a.) Identify all current psychiatric conditions that have been present at the time the claim was filed or at any point during the pendency of this appeal. (b.) For any diagnosed psychiatric condition, the examiner shoulder offer an opinion as to whether it is at least as likely as not (approximately 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, his military service, to include his reports of witnessing a murder and being shot at after a fight. All necessary tests and studies should be performed, with all findings made available to the examiner prior to the completion of his or her report. All clinical findings should be reported in detail. A rationale for any opinion offered should be provided. In doing so, the examiner is reminded to consider evidence such as the Veteran's service treatment records, which indicate that he was treated in the emergency room after being shot at, as well as his service personnel records, which document disciplinary issues, and his hearing testimony. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.