Citation Nr: 21068329 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-03 416 DATE: November 10, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for chondromalacia patella of the right knee (right knee disability) is remanded. Entitlement to an increased rating in excess of 10 percent for chondromalacia patella for the left knee (left knee disability) is remanded. Service connection for a low back disorder is remanded. Service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to service connection for treatment purposes only for a psychosis is remanded. REASONS FOR REMAND The Veteran had active duty in the Army from August 1973 to January 1974. The issues are on appeal from an October 2013 rating decision. Briefly reviewing the procedural history, the issues were remanded in November 2015 by the Board of Veterans' Appeals (Board) for additional development. Subsequently, the Veteran submitted a form opting into the Rapid Appeals Modernization Program (RAMP) to have his claims reviewed under the Appeals Modernization Act (AMA) in February 2019. However, in July 2019, the Agency of Original Jurisdiction (AOJ) notified the Veteran that it received his RAMP election past the entry deadline of February 19, 2019. Therefore, the Veteran's claims were to remain and continue under the Legacy Appeals process. A March 2020 supplemental statement of the case (SSOC) was issued by the AOJ. In July 2020, the Board erroneously found that it did not have jurisdiction over the increased ratings claims and service connection claims for low back disorder and an acquired psychiatric disorder. The Board also denied entitlement to service connection for treatment purposes only for a psychosis on the basis that the Veteran had not developed active psychosis within two years of his separation from active wartime service. The Veteran appealed the July 2020 decision to the United States Court of Appeals for Veterans Claims (Court) and in June 2021, the Court issued a Joint Motion for Remand (JMR) that vacated the Board's decisions and remanded the Veteran's claims. In the June 2021 JMR, the Court found the Board had erred when it failed to provide an adequate statement of reasons or bases in support of its denial, when it did not attempt to obtain additional medical records from the Veteran's active-duty period, and when the Board did not adequately explain its finding that the issues involving bilateral knee disability, back condition, and acquired psychiatric disorder were not properly on appeal before the Board. As discussed in the paragraph above, the latter directive in the JMR was an error and the Board apologizes to the Veteran for the procedural mistake. As stated in the Court's JMR, the Board notes that the issues of increased ratings for bilateral knee disabilities, service connection for back condition, and service connection for an acquired psychiatric disorder are properly on appeal before the Board under the legacy adjudication system. These issues are remanded below. 1. Entitlement to an increased rating in excess of 10 percent for chondromalacia patella of the right knee (right knee disability) is remanded. 2. Entitlement to an increased rating in excess of 10 percent for chondromalacia patella for the left knee (left knee disability) is remanded. The Veteran was last examined by VA for his left and right knee disabilities in April 2019. Since that time, the Veteran has asserted that symptoms associated with his knee disabilities have worsened and he has continued to receive medical treatment for his knees. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right and left knee disabilities. 3. Service connection for a low back disorder is remanded. 4. Service connection for an acquired psychiatric disorder, to include depression, is remanded. 5. Entitlement to service connection for treatment purposes only for a psychosis is remanded. A November 1973 service treatment record shows the Veteran was unhappy in the Army, thought of committing suicide or possibly taking another's life, and was diagnosed with depression. The subsequent plan included referring the Veteran immediately to a mental hygiene clinic. As discussed by the Court, a review of the claims file does not find that the AOJ or Board ever attempted to verify whether records from in-service treatment at a mental hygiene clinic exist and if so, ever attempted to obtain these records. The Veteran's current service treatment records are silent beyond the November 1973 consult regarding any additional mental health treatment or treatment at a mental health clinic. In his February 2013 and July 2019 VA examinations, the Veteran told the examiner that he received mental health treatment or was sent to a psychiatrist for four to five sessions during his active duty tenure. Additionally, the Board notes that in addition to the Veteran's current claims regarding psychiatric disorder, missing in-service treatment records could also potentially benefit the Veteran's claim for service connection of a low back disorder. In a May 2002 VA examination, the Veteran reported experiencing back pain since 1973. However, the AOJ has continued to deny service connection for low back disorder after finding a lack of in-service incident or nexus between a low back disorder diagnosis and active duty. On remand, the Board finds that remand is needed to ensure the duty to assist is satisfied and underatke efforts to obtain any missing in-service medical records. 38 C.F.R. § 3.159(c)(3). If VA is unable to obtain these records, the Veteran and his representative should be notified. 38 C.F.R. § 3.159(e). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records, to include documents pertaining to treatment at a mental health facility during active duty. All efforts should be documented in the claims file. If any records could not be obtained, this should be noted in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continue on next page) 3. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.