Citation Nr: 21029849 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-34 324 DATE: May 17, 2021 REMANDED Service connection for a left ankle disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Service connection for kidney disease is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to December 1981 and from August 1983 to June 1989. These claims are on appeal from an October 2014 rating decision. In his July 2016 VA Form 9 (Substantive Appeal), the Veteran requested a Board hearing before a Veterans Law Judge. He was notified by way of a July 3, 2019, letter that his hearing had been scheduled for August 12, 2019; however, he failed to show for this hearing. The notification letter was not returned as undeliverable and neither the Veteran nor his representative have requested that a hearing be rescheduled; thus, the Board finds the Veteran's prior hearing request has been withdrawn. 1. Service connection for a left ankle disability 2. Service connection for a left knee disability 3. Service connection for a right knee disability The Veteran is claiming service connection for a left ankle disability, a left knee disability, and a right knee disability. See May 2014 Fully Developed Claim. In his July 2016 Substantive Appeal, the Veteran indicated that he believed service connection was warranted for his left ankle and bilateral knees because he made numerous road marches (each being 10 to 15 miles) carrying a 150-pound ruck sack and that he made 200 parachute jumps during service. The Board finds that these duties are consistent with his service. See 38 C.F.R. § 1154(a). Although the Veteran's service treatment records do not contain any complaints of or treatment for his left ankle or bilateral knees, he has identified in-service events which he believed caused current disabilities. As the evidence suggests that the Veteran may have left ankle and bilateral knee disabilities which are related to his active service, the low threshold requiring examinations and opinions has been met, and a remand is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (emphasis added). The Board also notes that in his Substantive Appeal the Veteran indicated he served overseas as combat support operations for three years in Italy. While he may have been involved in support operations, the Board finds that there was no conflict in Italy during the Veteran's active service; further, his service records do not suggest he was involved in any combat. Therefore, the provisions relating to combat presumptions are not applicable. See 38 U.S.C. § 1154(b). 4. Service connection for a psychiatric disorder, to include PTSD The Veteran is claiming service connection for an acquired psychiatric disorder, to include PTSD. See July 2014 Application for Disability Compensation; see also July 2016 Substantive Appeal (claiming PTSD, nightmares, trouble sleeping). In his July 2016 Substantive Appeal, he indicated he joined the military as a medical lab technician but failed to train as a dental technician and that he suffered "lots of stress and pressure from failing" his first duty as a lab technician and from doctors and patients. He stated that after this experience, he began drinking, which he had not done prior, and which contributed to his kidney problems. He further stated that during his second period of active service, he served overseas as combat support operations for three years in Italy. Finally, he indicated that during a jump training drill at Fort Bragg in July 1988 on a low altitude night jump, two soldiers jumping out of the plane before him became entangled in their parachute lines and died, which caused the Veteran to experience nightmares that it could have been him. The Veteran's service treatment records reflect he was seen in the mental health clinic in August 1981 for a psychological evaluation at the request of his squadron commander. An October 1981 service personnel record indicates that the Veteran was involved in three domestic disturbances in the past four months and was resistant to counseling. An undated letter from a chaplain at Robins Air Force Base indicates that the author saw the Veteran for approximately five counseling sessions. The Veteran's service treatment records do not contain any mental health treatment records and there is no indication that the Agency of Original Jurisdiction (AOJ) has attempted to obtain any in-service psychiatric records, which may be separately stored from the Veteran's already received service treatment records. Thus, attempts to obtain any mental health and/or chaplain counseling records must be made on remand. In a February 2019 letter to the Veteran, VA requested that he provide additional information regarding his claimed in-service stressor to allow VA to attempt to research and verify any claimed stressor. The Veteran did not respond to this letter and it was not returned as undeliverable. Unfortunately, the Veteran's failure to provide VA with this information resulted in the inability to obtain crucial evidence which may have lent support to his claim. In this regard, the Board notes that VA's duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran and his representative are informed they have the right to submit additional evidence and argument on this matter while it is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Further, regardless of whether the Veteran provides additional information regarding his stressors while this claim is in remand status, that the AOJ must make attempts to verify his claimed stressor that two soldiers died in a parachute accident while he was at jump training at Fort Bragg in July 1988. All attempts to verify this claimed stressor must be documented in a formal memorandum and associated with the evidence of record. Finally, notwithstanding whether additional service records are obtained or whether the above-referenced stressor is verified, the Board finds that the Veteran's in-service treatment and his current statements regarding symptoms he experiences (as provided in lay statements) are sufficient to meet the low threshold requiring that VA obtain an examination and opinion. See McLendon, supra. Accordingly, this must be accomplished on remand. 5. Service connection for kidney disease The Veteran is claiming his psychiatric disorder caused him to self-medicate with alcohol, which caused his service-connected hypertension, and which caused his kidney problems. See July 2016 Substantive Appeal. He is also claiming service connection on a direct basis. See August 2019 Appellate Brief, pg. 3. Thus, this issue is inextricably intertwined with the issue of service connection for a psychiatric disorder and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). If, and only if, the AOJ finds additional development is warranted, to include an examination and/or an opinion, this will be conducted on remand. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's in-service mental health counseling and/or chaplain counseling reports to include, but not limited to, those from Robins Air Force Base dated in 1981. The AOJ must outline all attempts to obtain these records in accordance with VA regulation. If it is determined further attempts to obtain the records would be futile or that the records do not exist, the AOJ must prepare a formal finding of unavailability, associate this formal memorandum with the evidence of record, and notify the Veteran of such in accordance with VA regulation. 2. Contact the appropriate records repositories to attempt to verify the Veteran's claimed stressor that in July 1988 at Fort Bragg two fellow soldiers died in a parachute accident. The AOJ must document all attempts to verify this claimed stressor in a formal memorandum and associate this with the evidence of record. 3. Afford the Veteran the appropriate examinations to determine the etiology of any left ankle and bilateral knee disabilities. All appropriate diagnostic testing should be performed, including x-rays. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms, to include all current functional impairment. Following a review of the record, examination, and with consideration of the Veteran's statements, the examiner must provide the following information: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that any left ankle disability began during or is etiologically related to the Veteran's active duty service. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that any left knee disability began during or is etiologically related to the Veteran's active duty service. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that any right knee disability began during or is etiologically related to the Veteran's active duty service. Why or why not? (d) If there is x-ray evidence of degenerative changes of the left ankle, left knee, or right knee, please also determine whether it is at least as likely as not (50 percent probability or higher) that the disability manifested within one year of the Veteran's separation from active duty (by June 1990). Why or why not? The examiner is informed of the following: Pain may constitute a disability even if there is no formal diagnosis. Therefore, opinions regarding the left ankle, left knee, and right knee must be provided regardless of whether there is a diagnosed disability. Any opinion based on the sole fact that there is no contemporaneous medical evidence of in-service injuries or treatment will be deemed inadequate. The examiner must consider and discuss the Veteran's lay statements regarding the onset and continuity of symptoms. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. Following completion of steps 1 and 2, regardless of whether outstanding mental health records are received and/or the above stressor is verified, the Veteran must be afforded the appropriate mental health examination(s) to determine the etiology of any psychiatric disorders found. The examiner must obtain from the Veteran and record in the examination report all claimed stressors and all symptoms he has experienced during and since service. All appropriate diagnostic testing must be performed. Following a thorough review of the evidence of record, and with consideration of the Veteran's statements, please provide the following: (a) Identify all psychiatric diagnoses found on examination and in the record. (b) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability) that the disorder began during, manifested within one year of separation of, or is etiologically related to the Veteran's active duty service. Why or why not? The examiner is informed of the following: The Veteran was not involved in combat; and If and only if the claimed stressor of fellow soldiers dying in a parachute accident in 1988 at Fort Bragg is verified, then it may be considered. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 5. Following completion of steps 1, 2, and 4, if and only if, the evidence suggests the Veteran has a kidney disorder which may be related to service or a service-connected disability, the AOJ must undertake the appropriate development. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.