Citation Nr: 21016038 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-38 376A DATE: March 19, 2021 REMANDED Entitlement to service connection for anxiety is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1975 to July 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a BVA video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In June 2018, the Board remand these issues for further development. While in remand status, the RO granted service-connected for coronary artery disease. As such, service connection for this issue is not longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R.§3.303(a). Service connection generally requires credible and competent evidence showing:(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R.§3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for anxiety is remanded. 2. Entitlement to service connection for depression is remanded. The Veteran contends that two in-service events, (1) a helicopter crash that killed members of his unit, and (2) a fire he escaped from at his barracks caused his mental health conditions of anxiety and depression. See Third Party Correspondence received 10/08/2014 at page 3; see also Hearing Transcript at 21. Although this matter was remanded previously in a June 2018 BVA decision, the Board finds that another remand is warranted given the Veteran’s newly raised theory of entitlement to secondary service connection. Specifically, the Veteran’s representative stated that his mental health condition may be related to his service-connected heart condition, reasoning that his heart condition aggravates his mental health disorders. See Appellate Brief received 3/01/2021 at page 1. Since this alternative theory was not previously on the record, the October 2019 VA examiner did not consider it. Relatedly, the Board finds that it cannot make a legal finding of secondary service connection without supporting medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that a remand is warranted to consider this alternative theory of secondary service connection for anxiety and depression. See Douglas v. Derwinski, 2 Vet. App. 435 (1992). On remand, the Veteran will be provided a VA examination and medical opinion. 3. Entitlement to service connection for left knee condition is remanded. 4. Entitlement to service connection for right knee condition is remanded. The Veteran contends that his left and right knee condition was caused by his MOS as an aircraft mechanic, which required him to repeatedly bend his knees. See Hearing Transcript received 1/26/2016 at page 4. The Veteran also claims that he has bilateral knee arthritis. Id. at page 7. The Veteran was last provided a VA examination for his bilateral knees in February 2013. The February 2013 VA examiner did not find that the Veteran had arthritis in his knees. See VA Examination received 2/20/2013 at page 25. However, his SSA records contain a diagnosis of knee osteoarthritis in November 2011. See Medical Treatment Records-Furnished by SSA received 4/15/2019 at page 98. Yet, the exam report does not specify whether the Veteran’s knees were x-rayed. Id. Given the conflicting reports, the Board will remand this matter for a new VA examination and medical opinion. These matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his (a) left and (b) right knee condition. The examiner must review the claims file. The examiner must perform an x-ray of the Veteran’s knees to determine if he has arthritis. If this cannot be performed, please explain why. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is his (a) left and (b) right knee condition at least as likely as not related to service, including repeated bending due to his MOS as an aircraft mechanic? The examiner is asked to reference the Veteran’s lay statements of continuous knee pain since service. See Hearing Transcript received 1/26/2016 at pages 4-6. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2) Schedule the Veteran for a VA examination for his (a) depression and (b) anxiety. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s (a) depression and (b) anxiety at least as likely as not proximately due to his service-connected heart condition? Is the Veteran’s (a) depression and (b) anxiety at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected heart condition? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.