Citation Nr: 22017066 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-38 712A DATE: March 24, 2022 REMANDED Service connection for a left knee disorder, to include degenerative joint disease (DJD). Service connection for an acquired psychiatric condition, including anxiety disorder, posttraumatic stress disorder (PTSD), and psychotic disorders. REASONS FOR REMAND The Veteran served on active duty from March 1989 to June 1993. The case is on appeal from a March 2014 rating decision. The Board remanded these claims in April 2019 and May 2021 for additional development. In April 2019, the Board reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, and in May 2021, the Board reopened the Veteran's claim of entitlement to service connection for a left knee disorder. In November 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been included with the record. The VLJ who conducted the hearing has since retired from the Board. In March 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Additionally, the letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board will assume the Veteran did not want another hearing and proceed accordingly. The record is absent of the Veteran's response regarding another hearing on this matter. The Board will consider the case on the evidence of record. In September 2021, the Board remanded these claims for additional development. In February 2022, the Veteran's agent submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). 1. Service connection for left knee DJD. This issue is remanded for a new VA opinion. The Veteran contends that he has a left knee disorder that had its onset in service. In an April 2014 notice of disagreement, the Veteran reported that he incurred an injury in basic training. At the November 2018 Board hearing, the Veteran reported that during service he was an aircraft mechanic and electrician. Also, he reported that he injured the left knee performing long foot marches. The Veteran explained that he had experienced symptoms since June 1989. He reported that he received in-service treatment in 1989 for the left knee but did not seek further medical treatment as he was expected to "suck it up." Also, in February 1993 prior to discharge, he experienced left knee symptoms to include swollen or painful joints from running and marching "too much." He further reported taking inflammation medication for the left knee. Moreover, the Veteran reported receiving treatment at a VA facility and obtaining a knee brace in 2011. The Board previously remanded this claim to obtain a VA examination and opinion addressing whether the Veteran's left knee condition is related to service. The Board found that the prior examinations were inadequate, including the most recent one because it stated that there was no evidence of care for the knee condition until an acute accident in June 2008, but did not appear to consider the Veteran's lay statements. Upon remand, a VA examination was conducted in October 2021. The VA examiner concluded that the Veteran's current diagnosis was less likely than not related to service. The examiner remarked that the left knee condition during service was acute only. The examiner noted there were no left knee complaints on the enlistment entrance examination. The examiner observed that the Veteran stated he was evaluated in 1993 while in service, but the examiner found, per current available documentation, that she was unable to confirm this statement. The examiner noted that the Veteran was evaluated for folliculitis numerous times and cellulitis of the left knee several years after separation from service. The examiner concluded found that there did not appear to be a link to service, and the Veteran was not evaluated until several years after separation from service. The examiner found no evidence of chronicity of care and the objective abnormalities noted during examination. This opinion is insufficient. First, the factual predicate of the opinion is incomplete. The examiner was unable to confirm the Veteran's statement that he was evaluated during service in 1993. His service treatment records (STRs) include his February 1993 service separation examination at which he endorsed a history of swollen or painful joints. He wrote "my left knee hurts from running to [sic] much, or even marching." Above this is written "x1 wk worse [with] jumping." Because the October 2021 VA examiner did not appear to find this separation examination in the STRs, the factual foundation of the examiner's opinion is incomplete at best. Moreover, as with the prior opinions, this VA examiner impermissibly relied on an absence of documented evidence during service without explaining why, as a medical matter, an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). In fact, there is not an absence of evidence. The Veteran has testified that he had symptoms first arising during service. The Veteran's statement is competent evidence of his symptoms during and since service. While there might be some reason to question the Veteran's ability to be a reliable historian, the VA examiner did not give a medical reason for dismissing his statements. The VA examiner's failure to consider the Veteran's testimonial statement, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. As such, there was no substantial compliance with the prior remand directives. Remand for a new opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). 2. Service connection for an acquired psychiatric condition, including anxiety disorder, PTSD, and psychotic disorders. The Veteran contends that he has a psychiatric disorder caused by service. In an April 2014 correspondence, the Veteran reported that he witnessed a man go overboard on the ship to which he was assigned from 1989 to 1993 in the Indian Ocean. He also reported hearing gun shots and airplanes and working around loud engines on the flight deck. At the November 2018 Board hearing, he reported witnessing combat action to include bomb loading and airplane attacks. Furthermore, the Veteran reported experiencing paranoia, inability to socialize, and unable to hold a job after service. The Veteran reported that he was treated and held for 72 hours for psychiatric conditions in Eastern State Hospital in Fayette County in 1994 or 1995. The Veteran's service personnel records (SPRs) show that he was assigned to the USS independence in 1990, served at sea for 1 year and 1 month, and received the Southwest Asia medal for Operation Desert Shield. His STRs do not show reports of, or treatment for, psychiatric symptoms. The February 1993 separation examination is marked normal for "psychiatric" and does not note the presence of psychiatric symptoms. The post-service treatment records show that he was treated for psychiatric conditions. A September 2012 psychiatric examination for an application for disability benefits from the Social Security Administration (SSA) shows that the Veteran reported involvement in legal problems in service and after. He explained that a court order mandated him to take anger management in the early 1990s. He also reported experiencing psychiatric symptoms since service in Iraq for which he was counseled in and as he was transitioning from service into society. The SSA determined that the pertinent impairment diagnoses for the Veteran included severe schizophrenia and other psychotic disorder. A July 2019 treatment record shows that the Veteran reported experiencing depression and anxiety for which he receives treatment. In March 2014, the Veteran was afforded a VA examination to a psychiatric disorder. He reported to have deployed to Iraq from1990 to 1991. He described his role there as being "Plane Captain." He stated that he was involved in direct combat but was never wounded. The examiner reviewed the claims file and opined that there is no clear evidence linking the Veteran's psychiatric condition to service. The examiner concluded that the Veteran "appears to have a Delusional Disorder." The examiner opined that the delusional disorder may be causing some mild to moderate difficulties in social and occupational. Pursuant to April 2019 Board Remand, the Veteran was afforded another VA examination in September 2020 for this claim. The examining psychologist reviewed the claims file. He reviewed the claims file and diagnosed the Veteran with Unspecified Anxiety Disorder. The psychologist opined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that the symptoms are more appropriately explained by stress in response to life circumstances (i.e. child support issues, job status, marijuana use). Pursuant to the May 2021 Board remand, an opinion was obtained in June 2021 for this claim. The examining psychologist reviewed the claims file. The psychologist opined that the Veteran less likely than not has a psychiatric disorder that is directly related to service. In the May 2021 Board remand, the Board observed the June 2021 opinion addressed schizophrenia in only a conclusory way without discussion. The opinion had stated that the Veteran did not currently meet the diagnostic criteria for schizophrenia because there was no evidence of any hallucinations, or delusions, during the September 2021 VA examination. The examiner reasoned that, while there is diagnosis of schizophrenia made in a psychological examination in 2012, such diagnosis was based on reported hallucinations when later on the Veteran denied any auditory or visual hallucinations in September 2020. The Board observes that this VA examiner did not explain why the denial of hallucinations in September 2020 was accepted as the credible account of his symptoms while the prior report of hallucinations was apparently dismissed as noncredible. Pursuant to the September 2021 Board Remand, the Veteran was afforded another examination in December 2021 for this claim. The examining psychologist reviewed the claims file and diagnosed the Veteran with anxiety disorder. The psychologist opined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He continued the September 2020 diagnosis of anxiety disorder. The psychologist noted that while the Veteran reported his anxiety began during service, the psychologist found that there is no evidence in the STRs to indicate he was treated for or diagnosed with anxiety. He noted that the Veteran's mental health issues do not appear to have begun until years after his discharge from the service. The Board finds that remand is warranted to obtain another examination and opinion in regard to this claim. In this regard, the RO did not substantially comply with the prior remand, so a new medical opinion is required. See Stegall, 11 Vet. App. at 271. The Board previously remanded this claim because the prior examinations did not account for the Veteran's lay reports of symptoms beginning during service. Again here, the December 2021 VA examiner relied on an absence of documented treatment during and after service without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. Nor did the examiner give a medical reason for why the Veteran's own lay account of symptoms beginning from service was may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Hence, the medical opinion is legally inadequate. See, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Considering the nature of the Veteran's contentions, the Board also finds that the Veteran's complete service personnel record (SPR) should be obtained. This claim is REMANDED for the following action: 1. Obtain the Veteran's complete service personnel record. 2. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain an opinion from an appropriate clinician regarding the Veteran's left knee condition. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to provide a response to the following: (a.) Is a current left knee condition at least as likely as not related to service? (b.) Is it at least as likely as not that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. After completing the records development indicated above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of all diagnosed psychiatric disorders. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is to: (a.) Identify all psychiatric disorders present since 1990, PTSD and any psychosis. (b.) If the examiner finds that the Veteran meets the diagnostic criteria for PTSD, indicate whether it is at least as likely as not that it was caused by service or incurred during service as a result of an in-service stressor, to include hearing and witnessing bomb loading, gun shots, and airplanes attacks. (c.) For each diagnosed psychiatric disorder other than PTSD, state whether it is at least as likely as not incurred in or caused by service. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.