Citation Nr: 21030214 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-29 145A DATE: May 18, 2021 ORDER The application to reopen the claim for service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, is remanded. FINDING OF FACT Evidence added to the record since the March 2009 decision is new, pertains to the grounds of the previous denial, and raises a reasonable possibility of substantiating the Veteran's claim to entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW New and material evidence has been received to reopen the Veteran's claim for service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from August 1989 to December 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018, where it was remanded for additional development. It now returns to the Board for adjudication. Reopening of the claim of service connection for a right knee disability. The Veteran seeks to reopen entitlement to service connection for a right knee disability, and entitlement to service connection for a back disability and an acquired psychiatric disability. The Veteran previously filed a claim for service connection for a right knee disability, which was denied by the RO in a March 2009 rating decision. The Board previously found that this rating decision was final in October 2018. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103; see also Browder v. Brown, 5 Vet. App. 268, 270 (1993). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. A claim on which there is a final decision may also be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. After examining the March 2009 rating decision, one of the grounds for denial was that the Veteran had not established a present disability; the March 2009 denial cited the fact that the Veteran had not reported knee pain and that examinations failed to show limitations of motion of the knee, and did not concede that the Veteran has a then-present knee disability. Evidence received since the March 2009 denial includes private treatment records documenting complaint of, and treatment for, right knee pain in 2017 and 2018, during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence is new, competent, addresses the grounds for the prior final denial, and raises a reasonable possibility of substantiating the service connection for a right knee disability. The Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). REASONS FOR REMAND Having reopened entitlement to service connection for a right knee disability, the Board will consider service connection for a right knee disability, back disability, and an acquired psychiatric disability. The Board concludes that all the issues must be remanded. I. Right Knee Disability As previously discussed, the RO previously denied the Veteran service connection partly on the grounds that he had not established a present disability. The RO also did not afford the Veteran a VA examination. Private treatment records now show that the Veteran was treated for right knee pain in October 2017. VA treatment records also show that the Veteran was treated for right knee pain, in association with lower back pain, in January 2016 and February 2018. See Jan. 2016 ER Nursing Assessment. Based on the evidence of a disability during the pendency of the appeal, and the documented injury to his knee sustained in service, as well as indications of an association that his knee pain may be due to a back disability, for which the Veteran also seeks service connection, the Board finds this sufficiently raises the possibility of entitlement for the Veteran to be entitled to a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). The Board will remand for this examination. II. Back Disability The Veteran seeks service connection for a back disability, to include lumbar spine arthritis. Because the Board has previously found that new and material evidence was submitted for the issue of entitlement to service connection for a back disability, the Board will consider the issue. See Browder, 5 Vet. App. at 270. The Veteran underwent an October 2019 VA examination. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The examiner concluded that the Veteran's back disability was less likely than not related to service, because the Veteran's complaints of back pain in service were associated at the time of complaint with urinary problems and a motor vehicle accident that resulted in a muscle strain. The examination is not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination of the Veteran's service treatment records show that the Veteran was not actually diagnosed with a muscle strain as a result of the motor vehicle accident. The record for treatment in September 1989 notes a "hx of MVA" and then, separately, a diagnosis of a muscle strain for the day of treatment. In fact, the record only states that the Veteran was previously in a motor vehicle accident, not that he actually suffered any injury from it. The record also notes that the motor vehicle accident occurred at least several months prior to the date of treatment. A medical opinion must be based on accurate factual premises. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Remand is therefore required to obtain an adequate medical opinion. III. Acquired Psychiatric Disability The Veteran seeks service connection for an acquired psychiatric disability, to include depression. The Veteran underwent an October 2019 VA examination. In opining that it was less likely than not that the Veteran's depression was due to service, the examiner explained that he was unable to verify the Veteran's contention that he was treated for mental health issues while in service. The opinion is not adequate. See Barr, 21 Vet. App. at 311. First, there is no general requirement for service connection that a veteran prove that he has been treated for the claimed disability in service. See Shedden, 381 F.3d at 1166-67. The examiner therefore applied an incorrect legal standard. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Second, the examiner appears to premise the opinion wholly on the lack of in-service records of such treatment. Lay evidence, including a veteran's contentions, cannot be found not credible, and therefore the premise of a negative opinion, solely due to the lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Third, the Veteran previously contended that his depression was due to his injured knee and back. See August 2014 Form 9. The examiner did not address this theory of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, an adequate medical opinion must be obtained to consider whether the Veteran's acquired psychiatric disorder pre-existed service. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1132, 1137; 38 C.F.R. § 3.304(b). Here, the Veteran's entrance records do not note an acquired psychiatric disorder at entrance and, therefore, the presumption of soundness would normally attach. The presumption of soundness may be rebutted if it is shown "by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service." Patrick v. Shinseki, 668 F.3d 1325, 1328 (Fed. Cir. 2011). To show that a disability was not aggravated by service, it must be shown by clear and unmistakable evidence that "(1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). The record reasonably raises the possibility that the Veteran's depression pre-existed service. As previously discussed, the Veteran stated in a November 2011 medical evaluation that he was previously diagnosed with the "beginning of depression" prior to service. A medical opinion concerning whether the Veteran's depression pre-existed service, or was not aggravated by service, by clear and unmistakable evidence has not been obtained. The Board will therefore instruct the examiner to obtain one as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination. The examiner is directed to review the claims file and this decision. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms, such as pain, that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is reminded that the Veteran is presumed credible to report symptoms and that the Veteran's lay contentions may not be found non-credible solely due to the lack of contemporaneous medical records. The examiner is asked to provide a response to the following: 2. Does the Veteran have a right knee disability, and if so, is at least as likely as not related to service, including the Veteran being struck in the right knee by a night stick, or other complaints of right knee problems in service? Is any right knee disability at least as likely as not proximately due to a service-connected disability? Is any right knee disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? 3. Is the Veteran's lumbar spine arthritis at least as likely as not related to service, including the complaints of back pain documented in the Veteran's service treatment records? 4. Did the Veteran's acquired psychiatric disability, to include major depressive disorder, clearly and unmistakably (undebatable) preexist the Veteran's service? The examiner is reminded that clearly and unmistakably is defined as "obvious or manifest." Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? The examiner is reminded that aggravation is defined as defined as clear and unmistakable evidence that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service; or at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael D. Wagner, 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.