Citation Nr: 21065188 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-00 585 DATE: October 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression, is dismissed. REMANDED Entitlement to service connection for a vestibular condition, to include tinnitus, and including as secondary to service-connected left knee disabilities, is remanded. Entitlement to service connection for lumbar spine degenerative disc disease (DDD), to include as secondary to service-connected left knee disabilities is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disabilities, is remanded. FINDING OF FACT In an August 2020 rating decision, service connection for adjustment disorder with mixed anxiety and depressed mood was granted, resulting in a full grant of the benefit sought on appeal. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for an acquired psychiatric disability, to include depression, have been met. 38 U.S.C. § 7105, 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010, February 2017, and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board denied the claims of entitlement to service connection for tinnitus and lumbar spine DDD. Subsequently, the Veteran filed an appeal to the Court of Appeals for Veterans Claims (the Court) contesting the October 2019 Board decision. In February 2021, the Court issued a Memorandum Decision, and vacated the portions of the Board's October 2019 regarding the tinnitus and lumbar spine claims, and remanded the claims for further development. The claim of entitlement to service connection for a right knee disability was previously remanded by the Board in March 2020. Dismissed Claim 1. Entitlement to service connection for an acquired psychiatric disability, to include depression, The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include depression, was initially denied in an April 2017 rating decision. The issue was properly appealed to the Board and was reopened and remanded in October 2019, and remanded again in March 2020 for additional evidentiary development. Subsequently, in August 2020, the RO granted entitlement to service connection for this disability. This is a full grant of benefits sought on appeal, and there is no case or controversy for the Board to adjudicate. Consequently, the claim is dismissed. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to service connection for a vestibular condition, to include tinnitus, and including as secondary to service-connected left knee disabilities, is remanded. In the Court's February 2021 Memorandum Decision, it determined that the Board took too narrow a view of the claim of entitlement to service connection for tinnitus. Specifically, the Court found that the Board failed to consider whether the Veteran's tinnitus claim encompassed a claim for a vestibular condition manifesting in dizziness, which also impacted the Board's determination that a VA medical examination was not warranted. The Court stated that the Board's findings were not in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Remand is required to obtain a VA medical examination and opinions. 2. Entitlement to service connection for lumbar spine DDD, to include as secondary to service-connected left knee disabilities is remanded. Regarding the Veteran's lumbar spine DDD claim, the Court found that the VA medical opinion that the Board relied on was inadequate. The Court stated that the VA examiner's rationale failed to adequately address the Veteran's assertion that he initially injured his back around 2003 when his left knee buckled while lifting a container of metal at work. Additionally, the Court noted that the VA examiner overlooked the fact that the Veteran has been service-connected for left knee conditions since 2001, prior to the onset of his back problems. Lastly, the Court noted that the VA examiner's aggravation opinion actually only considered whether the left knee caused the Veteran's back condition, rather than whether the left knee problems may have worsened the back condition. Therefore, remand is required to obtain new medical opinions. 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disabilities, is remanded. In the March 2020 remand, the Board instructed that medical opinions be obtained to determine whether the Veteran's claimed right knee disability is related to his military service, is proximately due to his service-connected left knee disabilities, or is aggravated by his service-connected left knee disabilities. Although a VA examiner provided an opinion regarding whether the Veteran's claimed right knee disability is proximately due to his service-connected left knee disabilities, the examiner did not address whether the condition is directly related to the Veteran's military service, nor whether it is aggravated by the service-connected left knee disabilities. Remand is required to obtain the previously requested opinions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed vestibular disability, to include dizziness and tinnitus. The examiner must review the claims file. The examiner must also respond to the following: (a.) Identify any current vestibular disability that is currently present or that has existed during the appeal period. (b.) For each disability, state whether it is at least as likely as not related to service. The examiner must provide rationale in support of the opinions. (c.) For each disability, state whether it is at least as likely as not proximately due to service-connected left knee disabilities. The examiner must provide rationale in support of the opinions. (d.) For each disability, state whether it is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected left knee disabilities. The examiner must provide rationale in support of the opinions. 2. Obtain addendum opinions from an appropriate clinician regarding the Veteran's lumbar spine DDD. The examiner must review the claims file. (a.) State whether it is at least as likely as not that his lumbar spine DDD is proximately due to service-connected left knee disabilities. The examiner must provide rationale in support of the opinion. (b.) State whether it is at least as likely as not that his lumbar spine DDD is aggravated, i.e., worsened beyond its natural progression, by service-connected left knee disabilities. The examiner must provide rationale in support of the opinion. (c.) Attention is drawn to the Veteran's assertion that he initially injured his back around 2003 when his left knee buckled while lifting a container of metal at work. Note that the Veteran has been service-connected for left knee disabilities since January 2001. 3. Obtain opinions from an appropriate clinician regarding the Veteran's right knee condition. The examiner must review the claims file. (a.) State whether it is at least as likely as not that a right knee condition is related to service. The examiner must provide rationale in support of the opinion. (b.) State whether it is at least as likely as not that a right knee condition is aggravated, i.e., worsened beyond its natural progression, by service-connected left knee disabilities. The examiner must provide rationale in support of the opinion. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.