Citation Nr: 23015166 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 17-40 739 DATE: March 14, 2023 ORDER The application to reopen the claim for entitlement to service connection for an adjustment disorder is granted. The application to reopen the claim for entitlement to service connection for human immunodeficiency virus (HIV) with acquired immunodeficiency syndrome (AIDS) is granted. The application to reopen the claim for entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for HIV with AIDS is denied. Entitlement to service connection for PTSD, to include as due to military sexual trauma (MST) is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include an adjustment disorder, bipolar disorder, and a depressive disorder, is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder, was denied in a December 1994 rating decision. 2. 3. Evidence added since the December 1994 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for acquired psychiatric disorder, other than PTSD. 4. The Veteran's claim for entitlement to service connection for HIV with AIDS was denied in an August 2009 Board decision which was not appealed and is final. 5. Evidence added since the August 2009 Board decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for HIV with AIDS. 6. The Veteran's application to reopen a claim for entitlement to service connection for lumbar spine disability was denied in an August 2009 Board decision which was not appealed and is final. 7. Evidence added since the August 2009 Board decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for lumbar spine disability. 8. The Veteran's HIV with AIDS disability did not begin during active service and is otherwise related to an in-service injury or disease. 9. The Veteran does not manifest PTSD that is due to service, including MST. CONCLUSIONS OF LAW 1. A December 1994 rating decision which denied service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100, 20.1103, 20.1104. 2. The criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. An August 2009 Board decision which denied service connection for HIV with AIDS is final. 38U.S.C. § 7104; 38 C.F.R. § 20.1100, 20.1103, 20.1104. 4. The criteria for reopening the claim of entitlement to service connection for HIV with AIDS are met. 38U.S.C. §5108; 38 C.F.R. § 3.156. 5. An August 2009 Board decision which denied application to reopen a claim for entitlement to service connection for lumbar spine disability is final. 38U.S.C. § 7104; 38 C.F.R. § 20.1100, 20.1103, 20.1104. 6. The criteria for reopening the claim of entitlement to service connection for lumbar spine disability are met. 38U.S.C. §5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for HIV are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for posttraumatic stress disorder (PTSD), due to MST, are not met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1990 to August 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal October 2014 and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The October 2014 rating decision on appeal combined the issue of whether new and material evidence had been received to reopen a claim for service connection for an acquired psychiatric disability with the issue of service connection for PTSD; however, the Board separates them into distinct issues here. The issue of service connection for PTSD is a separate and distinctly diagnosable condition from the Veteran's adjustment disorder, bipolar disorder, and depressive disorder, which had been previously considered. See August 2019 Medical Record. This appellate issue is separate and distinct claim from the previously claimed adjustment disorder that was the subject of a prior, final denial. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits). Therefore, new and material evidence is not required to reopen the claim for service connection for PTSD. Substantial amounts of evidence in the form of treatment records have been associated with the record after the AOJ's most recent consideration of the PTSD, acquired psychiatric disability other than PTSD, lumbar spine disability, and HIV/AIDS issues. The Board sent a letter to the Veteran in November 2022 informing him of the additional records and indicating that he could request the Board to consider these records in the first instance or request a remand to the AOJ. To the extent that these records address PTSD and HIV/AIDS, these records are cumulative of those considered by the RO with regard to the issues decided herein by the Board. For all other issues, remand for other development was necessary. Thus, the Board may proceed without prejudice to the Veteran as to the PTSD and HIV/AIDS issues. 38 C.F.R. § 20.1305 (2021). 1. The application to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD The Veteran claims service connection for acquired psychiatric disorder as due to service or service-connected disability. In a December 1994 rating decision, the RO denied service connection for an adjustment disorder psychiatric disability. The Veteran was notified of the decision and his procedural and appellate rights in December 1994. He filed a notice of disagreement that month, restricted to other disabilities, a right thigh disability, tinea pedis, and a low back disability, that were decided in December 1994. He raised other issues for the first time, including hair loss, diarrhea, and headaches, for which he did not allege a relation to the adjustment disorder. The Board finds no notice of disagreement was timely filed as to the adjustment disorder issue. The Veteran filed three VA Form 21-4142 "Authorization for Release of Information" in September 1995 for N.K.C.C., C.B.H., and a Dr. M. The RO sent requests to those medical providers under the duty to assist in September 1995. The Dr. M. requested was returned as undeliverable in October 1995. The Veteran was notified in October 1995 of the inability to obtain records from Dr. M. but did not respond to that letter. N.K.C.C. and C.B.H. both provided records to the RO in October 1995. A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence received within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. However, to trigger the duty to issue a determination under 38 C.F.R. § 3.156(b), the evidence must relate to the same disability that was the basis of the earlier claim. Gudinas v. McDonough, 54 F.4th 716, 720 (Fed. Cir. 2022). The N.K.C.C. records are chiropractic records that do not mention psychiatric complaints, symptoms, or treatment. The C.B.H. records document an assault in June 1995 that resulted in the Veteran sustaining an injury to the left side of his face. See June 1995 Medical Record. Again, there is no indication of psychiatric complaints, symptoms, or treatment. The Board finds these post-service records showing chiropractic care and treatment for a June 1995 injury did not pertain to a psychiatric disorder. Accordingly, the Board concludes the duty to issue a new and material evidence determination under 38 C.F.R. § 3.156(b) was not triggered. Gudinas, 54 F.4th at 720. Therefore, the Board concludes that the December 1994 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. New and Material 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. 38U.S.C. §5108. The December 1994 rating decision denied the adjustment disorder claim because the Veteran's service treatment records did not identify any complaints, findings, treatment, or diagnoses of a psychiatric disorder and a VA examination report that found the disorder unrelated to service. Evidence received since the December 1994 rating decision includes the Veteran's December 2021 hearing testimony before the undersigned. See May 2017 Examination. The Veteran's reports at the May 2017 VA examination and his hearing testimony include assertions of facts not previously of record that relate to element of injury or disease in service. Specifically, the Veteran provided reports of an assault that he contends took place during active service and resulted in psychiatric disability. See December 2021 Hearing Transcript. The Veteran had made no allegations regarding an in-service assault at the time of the 1994 rating decision to which he attributed his adjustment disorder. This new evidence raises a reasonable possibility of substantiating the claim, and its evidence is new to the file, competent, addresses one the grounds of the prior final denial, and raises a reasonable possibility of substantiating the Veteran's claim. The Board concludes that the criteria for reopening the Veteran's claim for entitlement to service connection for a psychiatric disability, are met. 38 C.F.R. § 3.156(a). 2. The application to reopen the claim for entitlement to service connection for human immunodeficiency virus (HIV) with acquired immunodeficiency syndrome (AIDS) 3. The application to reopen the claim for entitlement to service connection for a lumbar spine disability In a November 2002 rating decision, the RO denied reopening a claim for service connection for lumbar spine disability, on a direct basis, as the Veteran's lumbar spine disability was determined to not be related to service. The RO also denied service connection for HIV with AIDS in a December 2003 rating decision. The Veteran appealed these decisions which were denied in an August 2009 Board decision. The Veteran did not appeal the August 2009 Board decision. For this reason, the August 2009 Board decision denying service connection for HIV with AIDS and reopening a claim for service connection for lumbar spine disability is final. 38 U.S.C. § 7104(e); 38 C.F.R. § 20.1100. Evidence received since the August 2009 Board decision includes testimony from the Veteran of an assault that he contends took place aboard the U.S.S. Charleston during active service and resulted in infection with HIV with AIDS and contentions that his injury in service that resulted in service-connected right thigh disability also caused lumbar spine disability. See December 2021 Hearing Transcript. The Veteran's December 2021 testimony attempted to clarify what he had testified about at a March 2005 Board hearing. In March 2005, the Veteran testified that he had been assaulted by a Chief Boatswain's Mate, whose name the Veteran could not recall, who was removed from the ship shortly afterward. He denied reporting the assault but said that a friend, N.G., had HIV "because of it." In December 2021, the Veteran clarified that N.G. and another individual, J.J., had assaulted him and that he reported the assault to command the next morning. The Board finds that there are material differences to the Veteran's account of the alleged in-service event which are new to the file and raise a reasonable possibility of substantiating the claim. Furthermore, the Veteran asserts that his lumbar spine disability was caused or aggravated by a service-connected right thigh disability. The Veteran's December 2021 testimony was that his right thigh disability altered his gait which caused his lumbar spine disability. In March 2005, the Veteran had claimed that his lumbar spine disability had been directly incurred in service. Thus, the Veteran's hearing testimony is new, addresses the grounds of the prior final denial, and raises a reasonable possibility of substantiating the Veteran's claim for service connection on a secondary basis. The Board concludes that the criteria for reopening the Veteran's claims for entitlement to service connection for HIV with AIDS, as well as service connection for lumbar spine disability secondary to service-connected right thigh disability, are met. 38C.F.R. § 3.156(a). The lumbar spine disability will be addressed further in the Remand section below. 4. Entitlement to service connection for human immunodeficiency virus (HIV) with acquired immunodeficiency syndrome (AIDS) As noted above, the Veteran contends he incurred HIV in service as a result of rape and that his HIV that ultimately resulted in AIDS. The Veteran's claim for service connection has been denied based on a lack of evidence disease or injury in service, or specifically infection with HIV in service. Service Connection To establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. To the extent that the Veteran's service treatment records fail to corroborate his contentions that he suffered sexual assault and infection with HIV in service, the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Analysis The in-service and post-service medical evidence does not support a finding of in-service infection. The Veteran's service treatment records indicate he was tested on several occasions for HIV infection. An October 1991 HIV test was noted to be negative, but results for December 1992 and January 1993 tests were not given. A service separation medical examination also does not appear to be of record. According to 2001 VA treatment records, the Veteran stated at the time of his 2001 positive test that a prior 1995 HIV test had been negative. According to an October 2001 clinical notation, an October 2000 HIV test performed by the Veteran's halfway house was described as negative. The Veteran's post-service medical records indicate he was first confirmed to be HIV positive in approximately September 2001. See October 2001 Medical Record. A VA medical examination and opinion was afforded the Veteran in April 2004. The examiner, a VA nurse-practitioner, noted the Veteran's first diagnosis of HIV infection in September 2001. The Veteran stated his only possible exposure to HIV infection had to be heterosexual contact during military service. However, he also reported a single episode of possible homosexual contact following an evening of substance abuse. He continued to deny IV drug use. Based on the Veteran's negative HIV tests during military service, the examiner found it less likely than not the Veteran's HIV infection was incurred during military service. See April 2004 Opinion. A second VA medical opinion, authored by a VA physician, was received in July 2004. See July 2004 Opinion. The examiner noted that while the results of the Veteran's December 1992 and January 1993 in-service HIV tests were not noted in his service treatment records, Department of Defense policy at the time was to medically discharge HIV positive personnel when HIV infection was discovered. Thus, the fact the Veteran was not discharged from service following those tests suggests they were negative. In summary, the examiner found the Veteran did not incur his HIV infection during active service. The lay evidence supporting the Veteran's claim is competent, but not credible. The Board considers the medical principle that HIV infection may occur via sexual contact to be of such notoriety to be within the competency of a lay person to report. Kahana, 24 Vet. App. at 432, n.4. Moreover, the Veteran is certainly competent to report that he was sexually assaulted by another. Jandreau, 492 F.3d at 1376-77. Even to the extent that he is competent to report the medical principle and assault, whether he actually contracted HIV at that time may not be within competent lay knowledge. The Veteran does not report a contemporaneous medical diagnosis, being told by a medical expert that he did or could have contracted the virus in the alleged assault, or that symptoms he had close in time to the assault were related to the infection. Kahana, at 432. Thus, his statements are of limited competency. The Board does not, however, consider the Veteran's testimony to be credible. There are material differences in the Veteran's testimony which raise substantial doubts as to the veracity of his assertions. At his March 2005 Board hearing, the Veteran stated he was sexually assaulted by another shipmate, which likely resulted in his HIV infection. He denied any potential HIV infection following military service. The Veteran reported that he was friends with an individual, N.G., and that he had knowledge that this individual was HIV positive. See March 2005 Hearing Transcript. The Veteran's recent testimony is that N.G. and another person, J.J., committed personal assault and rape, during active service, and that he incurred HIV as a result. See December 2021 Hearing Transcript. The Board finds that the Veteran's additional evidence regarding infection with HIV in service is not consistent with his prior statements, or the other evidence of record. The Veteran contends that an April 1992 service record shows that he was in an altercation and this treatment note is evidence of his personal and sexual assault. See April 1992 Service Record. This record shows the Veteran was treated injuries from punches and a lacerated right elbow. The Veteran denied any incident in service that was serious or life threatening at a November 1994 VA examination. See November 1994 Examination. The Veteran's statements regarding personal and sexual assault are inconsistent with prior statements, he has previously reported that he was close enough friends with N.G. to stay in contact with him after discharge. The Veteran now asserts that this individual personally and sexually assaulted him, with the aid of another. The Veteran's reports regarding the time frame during which the alleged assault occurred range from July or August of 1991 to January to March or 1993. See May 2017 Examination. The Veteran's statements made to VA examiners and the Veteran's December 2021 testimony are inconsistent and are afforded no probative value. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The Veteran alleges serious bodily injury with his assertions of rape, the injuries sustained from an assault such as this would be obvious, significant, and require medical attention. The Board finds the Veteran's failure to disclose the injury he alleges to the April 1992 treatment provider weighs against this assertion as the Veteran would have been reasonably expected to disclose this incident due to the severity of this crime and the injuries that would be expected to have occurred as a result. On its face, the April 1992 treatment record does not show the Veteran sustained injuries consistent with rape, therefore there is an absence of evidence that is significant and probative. The Board first must lay a foundation for why it would have expected the fact in question to be recorded, making its absence significant. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (citing Fed. R. Evid. 803(7)); Fountain, supra. The Board interprets the significance of the April 1992 treatment note, which only references a right elbow laceration, and the Veteran's contention that he remained silent about the purported sexual assault and rape, as evidence that weighs against his assertions because it is inconsistent with other evidence and facially implausible that the Veteran would not report serious injury. The Board finds the Veteran's new testimony, in light of the service record and post-service record evidence, does not serve to establish a sexual assault or rape occurred and does not trigger the duty to assist. VA need not provide an additional examination or opinion with respect to this claim. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was afforded medical opinions in April and July 2004 in connection with his prior claim. These opinions are based on the statements from the Veteran which accord with the Board's assessment of the Veteran's credibility. As a result, the Board finds that there is sufficient competent medical evidence on file to make a decision on this claim. A further examination or opinion is not warranted. 38 C.F.R. § 3.159(c)(4). The inconsistency with his prior statements and inconsistency with the service and post-service treatment record weigh against the Veteran's assertions that personal and sexual assault and rape in service resulted in infection with HIV. The Board finds the Veteran's assertions and testimony are not entitled to sufficient probative value to require an additional opinion addressing this question. The evidence persuasively weighs against the claim and service connection for HIV with AIDS is denied. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); 38 C.F.R. § 3.102. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST) Service Connection for PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). To award service connection, psychiatric disabilities must be diagnosed in conformity with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020); 38 C.F.R. § 4.125(a). As for the first element, a current diagnosis of PTSD, the record does not reflect that the Veteran has been diagnosed with PTSD. Further, the Veteran testified that he has not been informed that he has a diagnosis of PTSD. See December 2021 Hearing Transcript. The Veteran has undergone two psychiatric evaluations and years of psychiatric treatment and the record does not indicate a diagnosis of PTSD. See November 1994 Examination; see also May 2017 Examination. He has not proffered evidence that he is qualified to offer medical diagnoses. 38 C.F.R. § 3.159(a). Thus, he is not competent to diagnose himself. There being no favorable evidence of a PTSD diagnosis in conformity with the DSM-5, the element of an appropriate diagnosis of PTSD is not met. Martinez-Bodon, 32 Vet. App. at 404. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); Lynch, supra; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran contends he has right and left knee disabilities that are due to service, or service-connected right thigh disability as a result of abnormal weight bearing. The Veteran was examined for this claim and VA obtained opinions addressing direct service connection and service connection based on causation or aggravation. See May 2017 Examination; see also February 2019 Examination. The May 2017 examination found right, and left knee strain were present on examination, indicating a current disability for both knees that affects soft tissue. In a December 2021 decision, the Board made a finding of fact that the Veteran's right thigh disability resulted in decrease range of motion of the right knee. See December 2012 Decision. The Board finds the opinions secondary service connection are inadequate for adjudication purposes for the following reasons. See Barr, supra. The February 2019 examiner noted the presence of right and left knee strains, and that the Veteran was treated for right knee injuries in service, including medial collateral ligament strain, indicating a history of soft tissue injury in service. The Veteran's claim for service connection includes soft tissue and orthopedic disabilities. The February 2019 examiner appears to have focused solely on whether orthopedic changes were present and failed to address the Veteran's claims from a soft tissue disability standpoint. See February 2019 Examination. The February 2019 examiner noted gait changes and chronic right knee strain were present, but they did not provide sufficient rationale in determining that the Veteran's complaints of functional loss in the right or left knee were not due to or aggravated right thigh disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner should provide an opinion with explanation on whether right thigh disability caused or aggravated right or left knee disability, including any soft tissue disability. 3. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends he has a lumbar spine disability that is due to service, or service-connected right thigh disability as a result of abnormal weight bearing. The Veteran was examined for this claim and VA obtained opinions addressing direct service connection and service connection based on causation or aggravation. The examiner provided an opinion addressing causation; however, the examiner provided a cursory opinion with no rationale addressing aggravation of lumbar spine degenerative disc disease by right thigh disability. See April 2017 Opinion. The Board finds the opinions secondary service connection are inadequate for adjudication purposes. See Barr, supra. 4. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. The Veteran claims service connection as due to service or service-connected disability. See December 2021 Hearing Transcript. The Veteran was examined for his claim for service connection for a psychiatric disorder; however, the reports give widely varying opinions. A September 2014 VA examination report indicates that the Veteran did not meet any DSM-5 diagnosis but had significant evidence of exaggeration on testing. A May 2017 VA examination report indicates that the criteria for an unspecified depressive disorder with anxious distress were met and attributed to his lymphoma, HIV treatment, leaking valves in his heart, bruising easily, skin tearing easily, knee injections, hands scarring easily, glaucoma of both eyes, chronic pain of back and legs, and high blood pressure. See May 2017 Examination. Separately, the Veteran's VA treatment records indicate that he has previously been diagnosed at various times with an adjustment disorder, bipolar disorder, a depressive disorder, and mood disorder. Based on the Veteran's contentions that his psychiatric disorder is due to service-connected disability, and the bilateral knee and low back service connection claims that are being remanded, the Board finds the Veteran's claim for a psychiatric disability other than PTSD, including adjustment disorder, bipolar disorder, and depressive disorder, is inextricably intertwined with his remaining claims for service connection. The VA treatment records raise secondary service connection for the presently service-connected right thigh disability as well as the potentially service-connected bilateral knee and lumbar spine disabilities. A new VA examination to clarify the diagnoses and offer a nexus opinion is warranted. 38 C.F.R. § 3.159(c)(4). As such, the Board will remand the acquired psychiatric disorder claim as well. The Veteran receives ongoing care through VA. The VA treatment records in the claims file are complete through August 12, 2019. To ensure a complete record when this case is returned to the Board, updated VA treatment records from August 12, 2019, to the present should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records from August 12, 2019, to the present. 2. Obtain an opinion to determine the nature and etiology of the Veteran's diagnosed right and left knee strains. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether any acquired right knee or left knee disability, including right knee or left knee strain, (a) was caused or (b) has been aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected right thigh disability. A complete medical rationale for all opinions expressed must be provided. 3. Obtain an opinion to determine the nature and etiology of the Veteran's diagnosed lumbar spine degenerative disc disease. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether any acquired lumbar spine disability has been aggravated by the Veteran's service-connected right thigh disability. A complete medical rationale for all opinions expressed must be provided. 4. Arrange for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to: a. which of the adjustment disorder, bipolar disorder, unspecified depressive disorder, or mood disorder have been present since the filing of the claim in June 2011, even if it subsequently resolved, b. of those psychiatric disabilities present at any time since June 2011, whether any such psychiatric disorder (a) was caused or (b) has been aggravated by the service connected right thigh disability or the bilateral knee or lumbar spine disabilities. A complete medical rationale for all opinions expressed must be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.