Citation Nr: 21010997 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-01 880 DATE: February 26, 2021 REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left hand disability is remanded. Entitlement to service connection for right hand disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing treatment under the provisions of 38 U.S.C. § 1702 is remanded. Entitlement to nonservice-connected pension is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1975 until April 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before a Decision Review Officer (DRO) at a December 2013 DRO hearing. A DRO conference report is of record. In December 2016, the Veteran testified at a Board hearing before a now retired Veterans Law Judge (VLJ). A transcript of the hearing is of record. In September 2019 the Veteran declined the opportunity to testify at a new hearing. However, the Veteran was subsequently scheduled for a new Board hearing in November 2020, which was postponed. In a December 2020 correspondence, the Veteran was notified that his November 2020 Board hearing was scheduled inadvertently and he was advised that in light of this oversight, he could request a new Board hearing or, if no response was received from the Veteran within 30 days, the Board would proceed with the adjudication of his appeal without a Board hearing. The 30-day period has expired and to date, a response has not been received requesting an optional Board hearing. Thus, the Board will proceed as though the Veteran has declined the opportunity to testify at a new hearing. In an August 2015 correspondence, the Veteran’s representative withdrew. As the Veteran has not appointed a new representative, he is pro se. This appeal was remanded by the Board for development in September 2017 and has been returned to the Board for appellate review. 1. Entitlement to service connection for a left and right knee disability is remanded. The Veteran has been diagnosed with degenerative arthritis and patellofemoral pain syndrome of the bilateral knees. See January 2013 and October 2019 VA knee examination reports. An April 1977 service treatment record (STR) revealed the Veteran had complaints of left knee pain and was diagnosed with a possible ligament strain. In a January 2013 VA opinion, the VA examiner opined that the Veteran’s left knee degenerative arthritis is less likely related to service. In support of this opinion, the examiner stated that the Veteran had no chronic ongoing treatment or condition for left knee degenerative arthritis in service. The examiner noted the Veteran was seen briefly in April 1975 for left knee pain, but there was no chronic ongoing treatment or condition. An opinion which relies on the absence of documented treatment is inadequate. The October 2019 VA examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by the claimed relation to service. The examiner did not discuss the April 1977 STR, which showed the Veteran had complaint of left knee pain and was diagnosed with a possible ligament strain. Further, the examiner did not discuss the Veteran’s reports that his knee condition is due to falling down five stairs in service. See February 2010 VA Form 21-526. The October 2019 VA knee examiner further opined that the left knee condition was not caused by major depressive disorder, alcohol use disorder, and degenerative arthritis of the thoracolumbar spine. However, the examiner did not address whether the left knee condition was aggravated by any service-connected disability, including back disability as directed in the September 2017 Board remand. In light of these deficiencies, remand for a new opinion is necessary. 1. Entitlement to service connection for right knee disability is remanded. The Veteran has been diagnosed with degenerative arthritis and patellofemoral pain syndrome of the bilateral knees. See January 2012 and October 2019 VA knee examination reports. A January 1979 STR indicated the Veteran reported pain in his right knee from being kneed in the leg while playing basketball and was diagnosed with tendonitis vs. contusion. The January 2013 VA examiner opined that the Veteran’s right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner stated there is evidence of one evaluation of the claimant’s right knee during his military service and there is no evidence of a chronic right knee condition. An opinion which relies on the absence of documented treatment is inadequate. The October 2019 VA examiner opined that the Veteran’s right knee condition was less likely than not incurred in or caused by the claimed relation to service. However, the examiner did not discuss the January 1979 STR which indicated the Veteran reported pain in his right knee from being kneed in the leg while playing basketball and was diagnosed with tendonitis v. contusion. Further, the examiner did not discuss the Veteran’s reports that his knee condition is due to falling down five stairs in service. See February 2010 VA Form 21-526. The October 2019 VA knee examiner further opined that the right knee condition was not caused by major depressive disorder, alcohol use disorder, and degenerative arthritis of the thoracolumbar spine. However, the examiner did not address whether the right knee condition was aggravated by any service-connected disability, including back disability as directed in the September 2017 Board remand. In light of these deficiencies, remand for a new opinion is necessary. 2. Entitlement to service connection for left hand disability is remanded. The Veteran has been diagnosed with bilateral hands osteopenia. See January 2013 VA hand examination report. He contends that he fell down five stairs in service and hurt his hands. See February 2010 VA Form 21-526 The October 2019 VA examiner opined the Veteran’s bilateral hands condition was less likely than not incurred in or caused by the Veteran’s military service. The opinion is inadequate because the examiner noted the Veteran did not recall any major hand trauma; however, the Veteran has reported hurting his bilateral hands when he fell down five stairs in service, which the examiner did not address. The October 2019 VA examiner further opined that the Veteran’s bilateral hand condition was less likely than not incurred or caused by the claimed service-connected disabilities. However, the examiner’s rationale is nonresponsive as he did not provide any discussion related to the Veteran’s service-connected disabilities and instead, merely repeated the same rationale from his opinion addressing whether the hands were directly related to military service. Thus, remand is necessary for a new medical opinion. 3. Entitlement to service connection for right hand disability is remanded. The Veteran has currently diagnosed bilateral hands osteopenia. See January 2013 and October VA hand examination reports. He contends that he fell down five stairs in service and hurt his hands. See February 2010 VA Form 21-526. Moreover, an April 1977 STR noted the Veteran was treated for laceration of the fifth digit, right hand. A May 1976 STR noted the Veteran was treated for three right hand blisters from doing pull ups. The October 2019 VA examiner opined the Veteran’s bilateral hands condition was less likely than not incurred in or caused by the Veteran’s military service. The opinion is inadequate because the examiner noted the Veteran not recalling any major hand trauma; however, the Veteran has reported hurting his bilateral hands when he fell down five stairs in service. Moreover, the examiner failed to discuss the April 1977 STR that noted the Veteran was treated for laceration of the fifth digit, right hand and May 1976 STR that noted the Veteran was treated for three right hand blisters from doing pull ups. The October 2019 VA examiner further opined that the Veteran’s bilateral hand condition was less likely than not incurred or caused by the claimed service-connected disabilities. However, the examiner’s rationale is nonresponsive as he did not provide any discussion related to the Veteran’s service-connected disabilities and instead, merely repeated the same rationale from his opinion addressing whether the hands were directly related to military service. Thus, remand is necessary for a new medical opinion. 4. Entitlement to service connection for hypertension is remanded. The Veteran has a currently diagnosed hypertension disability. See January 2013 and October 2019 VA hypertension examination reports. At his December 2016 Board hearing, the Veteran testified that he started noticing his high blood pressure in service. See December 2016 Board hearing transcript at 4. The October 2019 VA examiner opined that the Veteran’s hypertension was less likely as not caused by the claimed in-service injury, event, or illness and stated the exact etiology of primary hypertension remains unclear, a number of primary and secondary risk factors are strongly and independently associated with its development. The examiner stated that it is not possible for him to make a direct connection of his current hypertension in relation to his service. The October 2019 VA examiner further opined that hypertension was less likely than not proximately due to or the result of the Veteran’s service-connected condition. In support of this opinion, the examiner stated there are multiple risk factors for hypertension and major depressive disorder, alcohol use disorder, and degenerative arthritis of the thoracolumbar spine may have an indirect influence on hypertension. The examiner stated that it is not possible for him to make a direct connection of his current hypertension in relation to service and to his history of major depressive disorder, alcohol use disorder, and degenerative arthritis of the thoracolumbar spine. The examiner’s opinions are unclear as to whether determining the relationship between hypertension and service or major depressive disorder, alcohol use disorder, and degenerative arthritis of the thoracolumbar spine generally is even possible or if it is beyond the limitations of current medical knowledge. When an examiner determines that an opinion cannot be provided without resorting to mere speculation, an examiner must explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. An examiner should also indicate whether they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). For these reasons, remand for a new opinion is necessary. 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has diagnosed major depressive disorder with alcohol use disorder. April 2017 and November 2019 VA mental disorders examination reports. The November 2019 VA examiner also diagnosed the Veteran with mild neurocognitive disorder. See November 2019 VA mental disorders VA examination report. The Veteran asserts that his psychiatric disability is secondary to his knees, hands, and back pain. See October 2012 statement in support of claim. The Veteran has also asserted that his condition began in service and although he did not seek treatment while in service or immediately following, he managed his symptoms through alcohol use. See February 2014 DRO Post Conference Brief. A December 1978 STR clinical record indicated an impression of schizophrenic personality. The April 2017 VA mental disorders examiner opined that the Veteran’s current diagnosis and major depressive disorder and substance abuse (alcohol) is less likely as not proximately due to or the result of the Veteran’s service-connected degenerative arthritis of the thoracolumbar spine. In lieu of a rationale for this opinion, the examiner provided a negative nexus on a direct basis. The November 2019 VA mental disorders VA examiner opined that the Veteran’s acquired psychiatric disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner stated he did not find evidence the Veteran has been diagnosed or treated for schizophrenia. These opinions are inadequate because the examiners relied on the absence of medical evidence in the STRs and failed to discuss a December 1978 STR clinical record that noted an impression of schizophrenic personality. Moreover, the November 2019 VA examiner did not provide an opinion whether the Veteran’s acquired psychiatric disorder was caused by or aggravated by any service-connected disabilities as directed in the September 2017 Board remand. For all of the above reasons, remand for a new opinion is necessary. 6. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing treatment under the provisions of 38 U.S.C. § 1702 is remanded. 7. Entitlement to nonservice-connected pension is remanded. The issues of entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing treatment under the provisions of 38 U.S.C. § 1702 and entitlement to nonservice-connected pension are inextricably intertwined with the Veteran’s other remanded issues; accordingly, they must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain outstanding relevant VA treatment records and associate them with the claims file. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left knee and right knee disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left knee disabilities present during the appeal period (from January 2010 ). (b.) For each left knee disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports that he hurt his knees when he fell down five stairs in service. The examiner must also discuss the April 1977 STR, which showed the Veteran had complaints of left knee pain and was diagnosed with a possible ligament strain. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (c.) For each left knee disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was aggravated (permanent or temporary) by any service-connected disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (d.) Please identify, by diagnosis, all right knee disabilities present during the appeal period (from January 2010 ). (e.) For each right knee disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports that he hurt his knees when he fell down five stairs in service. The examiner must also discuss the January 1979 STR indicated the Veteran reported pain in his right knee from being kneed in the leg while playing basketball and was diagnosed with tendonitis v. contusion. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (f.) For each right knee disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was aggravated (permanent or temporary) by any service-connected disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 3. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left hand and right hand disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left hand disabilities present during the appeal period (from January 2010). (b.) For each left hand disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports that he hurt his hands when he fell down five stairs in service. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (c.) For each left hand disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated (permanent or temporary) by any service-connected disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (d.) Please identify, by diagnosis, all right hand disabilities present during the appeal period (from January 2010). (e.) For each right hand disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports that he hurt his knees when he fell down five stairs in service. The examiner must also discuss the April 1977 STR that noted the Veteran was treated for laceration of the fifth digit, right hand and May 1976 STR that noted the Veteran was treated for three right hand blisters from doing pull ups. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (f.) For each right hand disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated (permanent or temporary) by any service-connected disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 4. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran’s hypertension disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is the diagnosed hypertension at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports he started noticing he had high blood pressure in service. The examiner may not rely solely on the absence of medical evidence during or immediately after service. If the examiner is unable to provide an opinion on the matter, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b.) Is the diagnosed hypertension at least as likely as not (50% or greater probability) that the disability was either caused or aggravated (permanent or temporary) by any service-connected disability? Please explain why. If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 5. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any acquired psychiatric disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period (from January 2010). (b.) For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports his psychiatric condition began in service and although he did not seek treatment while in service or immediately following, he managed his symptoms through alcohol use. The examiner must also discuss the December 1978 STR clinical record that noted an impression of schizophrenic personality. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (c.) For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated (permanent or temporary) by any service-connected disability? Please explain why. (d.) The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (Continued on next page)   6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.