Citation Nr: 21064875 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-36 751 DATE: October 21, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active-duty service from November 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in April 2021 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran's claims were remanded by the Board in June 2021 to acquire VA examinations assessing the nature and etiologies of the conditions for which service connection is sought. As detailed at greater length below, additional development is needed prior to adjudication of these claims by the Board. 1. Entitlement to service connection for a lower back condition is remanded. 2. Entitlement to service connection for a right knee condition is remanded. 3. Entitlement to service connection for a left knee condition is remanded. Upon remand, the July 2021 VA examiner opined that no evidence of record indicated causation or presence of the claimed conditions during service, and that knee or back problems would more likely than not have been recorded in the Veteran's medical records. Regarding the Veteran's lay statements/testimony of record concerning injuries to his knees and back during service, the VA examiner dismissed it altogether, noting that unless those complaints are accompanied by concurrent objective service treatment records, it is of no additional value. Here, the Board finds that the VA examiner's opinion subverts the Court's holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), as an absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. As such, the Board finds that another remand is required here to obtain an addendum medical opinion, one that properly considers the lay evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. At the outset, the Boards notes that relative to the Veteran's diagnosis of unspecified depressive disorder, a verified stressor does not need to be shown for that condition to be service connected. See also June 2021 Board remand. Upon review of the July 2021 VA examiner's medical opinion, the Board finds that the VA examiner's rationale primarily relied upon the fact that the Veteran's stressors have not been verified. As such the July 2021 VA medical opinion is inadequate for purposes of adjudicating the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board also finds of import that the June 2021 VA examiner did not otherwise indicate an etiology for the Veteran's diagnosed unspecified depressive disorder, and that the Veteran reported having experienced depression for years. Additionally, the National Archives Records Administration (NARA) was unable to locate copies of unit records submitted by the 436th Anti-Aircraft Artillery Battalion for the January December 1956 time period. See August 2017 DPRIS Response. As such, VA has a heightened duty to assist the Veteran in developing his claim. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). The Veteran's testimony regarding the alleged in-service events, namely that he witnessed a fellow soldier's injury during service, as well as the downing of a plane that burst into flames, has been consistent throughout the appeal period, as well as corroborated by way of buddy statements submitted in support of his claim. See April 2021 Board hearing testimony; August 2016 Buddy Statement(s). Accordingly, the Board finds that an addendum medical opinion should be obtained upon remand, one that applies the correct legal standard regarding the in-service element to service connection relative to the Veteran's diagnosis of an acquired psychiatric disorder other than PTSD. The matters are REMANDED for the following action: Obtain addendum medical opinions for the Veteran's claimed bilateral knee condition, a lower back condition, and an acquired psychiatric disorder. Upon review of the record, to include this remand, and as indicated below, the VA examiner is requested to opine as to all of the following: Bilateral knee conditions... a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a currently diagnosed bilateral knee condition that incurred during service, or is otherwise related to an in-service injury, disease or event? The VA examiner should specifically address the competent and credible lay testimony of record, namely that the Veteran suffered bilateral knee pain during service due to having to lift heavy weights, such as ammo, as well as from having to march in boots on hard pavement. See VBMS document entitled "Hearing Transcript" dated April 23, 2021. Lower back condition... b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a currently diagnosed lower back condition that incurred during service, or is otherwise related to an in-service injury, disease or event? The VA examiner should specifically address the competent and credible lay testimony of record, namely that the Veteran suffered back pain during service due to having to lift heavy weights, such as ammo. See VBMS document entitled "Hearing Transcript" dated April 23, 2021. An acquired psychiatric disorder... c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a currently diagnosed acquired psychiatric disorder, to include, but not limited to depression, that incurred during service or is otherwise related to an in-service injury, disease or event? The VA examiner should specifically address the Veteran's competent and credible lay testimony of record regarding in-service events. See VBMS document entitled "VA 21-0781, Statement in Support of Claim for PTSD" dated May 3, 2017; VBMS document entitled "Hearing Transcript" dated April 23, 2021; see also VMBS document(s) entitled "Buddy/Lay Statement" dated August 16, 2016. For all remanded claims, the examiner is advised that an absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. The VA examiner(s) are asked to provide the underlying reasons for all opinions expressed, and are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.