Citation Nr: 21066381 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-55 996 DATE: October 29, 2021 REMANDED Entitlement to service connection for a back disability, to include degenerative disc disease (DDD) of the spine is remanded. Entitlement to service connection for a left knee disability, to include ostearthritis of the knee status post total knee replacement is remanded. Entitlement to service connection for an acquired psychiatric disability, to include unspecified anxiety disorder is remanded. Entitlement to service connection for residuals of a traumatic brain injury is remanded. Entitlement to service connection for coronary arteriosclerosis is remanded. Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to October 1973. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions dated in September 2014 and April 2015, and an October 2018 notification letter of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Specifically, the Veteran's claim for service connection for a heart disability was denied in September 2014; his claims for a psychiatric disability, back disability, and left knee disability were denied in April 2015; and his claim for nonservice-connected pension was denied in October 2018. The Veteran was afforded a Board hearing for all issues on appeal in July 2021. A copy of the transcript has been associated with the record. Unfortunately, as explained in more detail below, a remand of the Veteran's claims is required for additional development. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. 1. Entitlement to service connection for a back disability, to include DDD of the spine is remanded. 2. Entitlement to service connection for a left knee disability, to include ostearthritis of the knee status post total knee replacement is remanded. 3. Entitlement to service connection for coronary arteriosclerosis is remanded. The Board notes that the AOJ requested inpatient treatment records from Fort Knox. However, the dates of the request were from September 1, 1973 to October 1, 1973. The dates requested do not correspond with the Veteran's dates of service, as the Veteran was not discharged until October 25, 1973. Therefore, all issues must be remanded for request of the records. On remand, the AOJ should request inpatient records through the end of the Veteran's service. Additionally, the Veteran was not afforded a VA examination for his back or knee claims, and the Board concludes that a VA examination is warranted for each. First, regarding the Veteran's knee disability, the Veteran testified to an in-service event: being pushed off a bus at basic training. The Veteran also testified that he had no trauma to his knee after service. In January 2020, the Veteran submitted a private opinion from his treating orthopedist indicating that his in-service injury gradually developed into arthritis and eventually required a knee replacement. The Board finds this opinion inadequate to grant the claim, in part, because it does not address the correct legal standard. However, the Board finds that the Veteran should be afforded a VA examination and the VA examiner should address the private opinion and the Veteran's reports of symptomatology. Second, regarding the Veteran's back disability, the Veteran reported that he injured his back in the same in-service event. The Veteran has also contended that his back disability is secondary to his knee disability because of decades of gait changes and limping with improper weightbearing. The Board concludes that a VA examination is warranted to address the Veteran's contentions. 4. Entitlement to service connection for an acquired psychiatric disability, to include unspecified anxiety disorder is remanded. 5. Entitlement to service connection for residuals of a traumatic brain injury. The Veteran's personnel records indicate that he was discharged because of a "specific learning defect." The Veteran contends that he does not have a learning disability, but rather, that he suffered a traumatic brain injury (TBI) in service, which then caused him not to meet fitness standards. While the Veteran did not file a claim for service connection for TBI residuals, the Board will expand his claim to include any residuals he might be experiencing. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (a claim is not limited by the terminology used by a veteran, and must include any disability reasonably raised by the record, including the description of his or her symptoms). The Board notes that the Veteran testified before a Decision Review Officer (DRO) in June 2017 to hitting his head and getting stiches over his eye. The DRO noted that the Veteran had a scar over his right eye. The Veteran was afforded a VA examination in April 2015. The examiner diagnosed the Veteran with a sedative and alcohol used disorder, and unspecified anxiety disorder with a rule-out diagnosis of substance-induced anxiety. The examiner indicated there was no TBI because none was shown in the records. As noted above, a remand is required to attempt to obtain complete records. The April 2015 VA examiner opined that the Veteran's acquired psychiatric disorder, including anxiety, depression, and headaches, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event. The VA examiner explained that the records showed that the Veteran's symptoms existed prior to service and there was no evidence that they became worse. The Board finds the opinion inadequate because it does not allow the Board to make an informed decision on the Veteran's claim. First, the examination report does not account for the fact that the Veteran did not endorse any nervousness or depression in September 1973, but he reported these symptoms in October 1973. Second, the examination report does not address the Veteran's "specific learning defect" or the lay reports of hitting his head. Legally, there is a distinction between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90 (July 18, 1990). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." Id.; VAOPGCPREC 67-90 (July 18, 1990). In other words, if the evidence as a whole establishes that a disease (but not a defect) of congenital, developmental, or familial (hereditary in) origin was first manifested during service, or preexisted service and progressed at an abnormally high rate during service, then service connection may be granted for such a disease. See, e.g., VAOPGCPREC 82-90; VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 1-90 (March 16, 1990). On the other hand, defects of congenital, development or familial (hereditary) origin may not be service-connected, because they are not diseases or injuries under the law. 38 C.F.R. § 3.303 (c). However, many such defects can be subject to superimposed disease or injury. If, during service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In this case, the April 2015 VA examiner did not address whether the Veteran had a "specific learning defect" that was subject to superimposed disease. For the foregoing reasons, a remand is required in order for the AOJ to obtain an adequate opinion regarding the nature of the Veteran's learning defect, any acquired psychiatric disability, and any TBI residuals. Finally, the April 2015 VA examiner seemed to suggest that the Veteran's unspecified anxiety disorder is related to his back and knees. The examiner explained that the Veteran felt depressed because of physical limitations, attributed his anxiety to chronic conditions, and had sleep disturbances because of pain. However, the examiner did not provide an adequate opinion regarding secondary service connection. The Board recognizes that the Veteran is not service connection for any physical disabilities; however, as those claims are being remanded and they are intertwined, the AOJ should obtain a secondary service connection opinion. 6. Entitlement to nonservice-connected pension benefits is remanded. The Veteran's claim for pension must be remanded because it is intertwined with his claim for a psychiatric disability. Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C. § 1521 (a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements for pension if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). The Veteran does not contend that he has at least 90 days of service. However, he contends that he was discharged from service during a period of war because of a service-connected disability. As noted above, the Veteran's claim for service connection for a psychiatric disability is being remanded. Since the outcome of the Veteran's claim for service connection potentially impacts the claim for pension, both claims must be remanded. The matters are REMANDED for the following action: 1. Request any inpatient records for the Veteran from Fort Knox for the period from October 1, 1973 to October 25, 1973. Any separately stored mental health clinic records should also be obtained. 2. After the above development is completed, schedule the Veteran for an examination from an appropriate VA examiner to determine the nature and etiology of the Veteran's left knee disability. The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. If an in-person examination is not feasible, an examination by other means should be afforded. All necessary tests should be conducted. The examiner should respond to the inquiries below: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disability is the result of, caused by, or related to, active duty service. (b.) In answering the inquiry above, the examiner should address the following evidence: (1) the Veteran's report that he had no trauma to the knee after service and before his knee surgery; (2) the December 2019 opinion from Dr. T. M. indicating that the Veteran's injury and persistent pain developed into arthritis; and (3) the Veteran's testimony that he limped because of his left knee since service. 3. Schedule the Veteran for an examination from an appropriate VA examiner to determine the nature and etiology of the Veteran's back disability. The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. If an in-person examination is not feasible, an examination by other means should be afforded. All necessary tests should be conducted. The examiner should respond to the inquiries below: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability is the result of, caused by, or related to, active duty service. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine DDD is proximately due to, the result of, caused by, or aggravated beyond its natural progress by the Veteran's left knee disability, including due to gait changes and improper weightbearing. 4. Schedule the Veteran for an examination from at least one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon) to determine the nature and etiology of any TBI residuals and any psychiatric disability. The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. If an in-person examination is not feasible, an examination by other means should be afforded. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner(s) should respond to the following inquiries: (a.) The examiner must determine if the Veteran has a current diagnosis of TBI or any residuals since the Veteran fied a claim with VA in March 2015. Please explain why or why not. In doing so, the examiner should address the Veteran's contentions and testimony regarding: (1) hitting his head in service; (2) having a scar above his right eye; (3) printing his name on documents in October 1973 instead of signing in cursive; (4) not having a stutter before enlistment; and (5) having had brain surgery in the same location as his in-service injury, that would not have occurred but for the TBI. (b.) The VA examiner must clarify whether the Veteran's specific learning defect, as noted in the service treatment records, is a congenital disease or defect. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (c.) In addressing whether the Veteran has or had a congenital defect, the examiner should address the Veteran's reports that: (1) the narrative regarding "mental retardation" in the STRs is wrong; (2) his testing scores before his head injury were good and higher than post-injury scores; and (3) he was, in fact, discharged for TBI residuals and not an actual learning disability. The examiner should also address the Veteran's aptitude test scores in the personnel records. (d.) For any congenital defect, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during active duty service resulting in a current psychiatric or cognitive disability. (e.) For any congenital disease, the examiner should state the date of onset, to include whether manifestations of the disease preexisted the Veteran's service. If so, the examiner should state whether it is at least as likely as not (i.e., at least a 50 percent probability) that there was an increase in the severity during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. (f.) The examiner should also identify/diagnose any headache disorder and DSM-5 diagnosis, including unspecified anxiety disorder, that exists or has existed at any time since March 2015. (g.) For each diagnosis identified that is not congenital and/or did not preexist service, the examiner should opine as to whether it at least as likely as not (50 percent probability or greater) a residual of an in-service TBI, had its onset in, or is otherwise causally or etiologically related to, the Veteran's active service. (h.) The examiner should identify any other symptoms or diagnoses present at any time since March 2015 which are at least as likely as not residuals of an in-service TBI. (i.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's unspecified anxiety disorder is proximately due to, the result of, caused by, or aggravated beyond its natural progress by the Veteran's knee disability or back disability. A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.