Citation Nr: 18139666
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-09 620
DATE:	September 28, 2018
REMANDED
Entitlement to service connection for hearing loss is remanded.
Entitlement to service connection for an acquired psychiatric disorder is remanded.
Entitlement to an evaluation in excess of 10 percent for left knee strain with instability is remanded.
Entitlement to an evaluation in excess of 10 percent for right knee strain with instability is remanded.
Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral syndrome is remanded.
Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral syndrome is remanded.
Entitlement to nonservice-connected pension benefits is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1996 to March 1999.
The Veteran seeks entitlement to service connection for hearing loss and an acquired psychiatric disorder, entitlement to increased evaluations for his bilateral knee disabilities, and entitlement to nonservice-connected pension benefits.  Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits.  
With respect to all claims, the Board notes that the only Statement of the Case was issued in March 2015.  Since that time, voluminous medical records have been added to the record which are directly pertinent to the issues on appeal.  This evidence includes a June 2018 VA Knee and Lower Leg Conditions examination as well as VA treatment records dated as recently as May 2018, to include admission at the Brockton Campus of the VA Boston Healthcare System for psychiatric treatment.  The Board acknowledges that 38 U.S.C. § 7105(e) provides an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review if a veteran or his or her representative submits evidence to the AOJ or the Board with or after submission of a substantive appeal.  This provision is applicable to cases where the substantive appeal was filed on or after February 2, 2013.  38 U.S.C. § 7105(e) (West 2014); see VA Fast Letter 14-02 (May 2, 2014).  Here, although the substantive appeal was filed after February 2, 2013, VA does not interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as evidence gathered by VA pursuant to the duty to assist.  Therefore, if evidence was developed by VA, the Board will not assume that the Veteran has knowingly and voluntarily waived AOJ consideration of such evidence.  Here, the June 2018 VA examination reports and VA treatment records which were not addressed in the March 2015 Statement of the Case were developed by VA.  In other words, they were not submitted by the Veteran or his representative.  Therefore, 38 U.S.C. § 7105(e) is not for application, and waiver of initial AOJ review of the additional evidence as to those issues is not automatic.  Thus, the Veteran must be afforded the opportunity to have the RO consider the additional evidence, relative to the issues on appeal, in the first instance prior to Board appellate adjudication, and if the benefit sought is not granted, to issue a Supplemental Statement of the Case which reflects consideration of this newly-added evidence.
Additionally, with respect to the claims of entitlement to service connection for an acquired psychiatric disorder and entitlement to nonservice-connected pension benefits, the Veteran asserted that he has a current psychiatric disorder that was either related to his period of active duty service or caused/aggravated by his service-connected knee disabilities.  Also, at the time of his initial February 2013 Application for Compensation and Pension Benefits, he indicated that he also sought nonservice-connected pension benefits, at which time he reported only having $10.00 in cash and non-interest bearing bank accounts.  The RO denied the claim of entitlement to service connection for an acquired psychiatric disorder in a December 2013 Rating Decision, and the Veteran was notified in correspondence dated in December 10, 2013, that although entitlement to nonservice-connected pension was established, the monetary benefit of pension was denied because evidence of income and net worth was necessary to establish possible entitlement.  This notification explained to the Veteran that on his Application for Compensation and Pension Benefits, the pension section was not filled out completely, and that VA could not accept blanks on income and net worth forms.  In response, the Veteran submitted an Improved Pension Eligibility Verification Report, VA Form 21-016-1, in February 2014.  The RO then requested in December 2014 that the Veteran be provided with a VA Mental Disorders examination in connection with his claim for nonservice-connected pension benefits to determine whether he had a diagnosed mental condition other than substance abuse alone.  Although there was no notification correspondence to the Veteran associated with the claims file, the March 2015 Statement of the Case nonetheless indicated that the Veteran did not report to the scheduled January 2015 examination.
At his November 2015 Board videoconference hearing, it was not clear as to whether the Veteran was unaware of the January 2015 VA examination or aware of the examination but unable to attend due to transportation issues.  The Board emphasizes, however, that the Veteran has reported to other VA examinations as recently as June 2018.  In light of recent VA treatment records diagnosing the Veteran as having unspecified depressive disorder in addition to alcohol and cannabis dependence, as well as the Veteran’s homeless status (living at the New England Center and Home for Veterans in Boston, Massachusetts), the Board finds that he should be scheduled for an additional VA psychiatric examination to determine the probable nature and etiology of any diagnosed psychiatric disorder, to include depressive disorder.  
The matters are REMANDED for the following action:
1. Obtain all VA medical records of treatment of the Veteran from the VA Boston Healthcare System, to include the Brockton Division in Brockton, Massachusetts, and the Jamaica Plain Division in Boston, Massachusetts, as well as the New Bedford Community Based Outpatient Clinic (CBOC) in New Bedford, Massachusetts.  
All attempts to secure these records, and any response received, must be documented in the claims file.  If no additional records are available, then a response to that effect should be documented in the file.
2. Provide the Veteran with an appropriate VA examination to determine the likely nature and etiology any diagnosed psychiatric disorder, to include depressive disorder.  The claims file and a copy of this Remand should be made available to the examiner in conjunction with the examination.  
Based on a review of the record, to include the Veteran's service and post-service treatment records (to include the recent diagnosis of depressive disorder), and with consideration of the Veteran's statements regarding his symptoms prior to, during, and since service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disorder was incurred in or is otherwise related to his period of active duty.  
If the examiner is of the opinion that a psychiatric disorder was not at least as likely as not related to his period of active duty, then the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disorder was caused and/or aggravated by a service-connected disability, to include his service-connected bilateral knee disabilities.  
Aggravation is defined as a worsening beyond the naturally progression of the disease or disability.  A complete rationale should be provided for any opinion or conclusion expressed.
In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.
3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal in light of the additional evidence associated with the record since the issuance of the March 2015 Statement of the Case.  If any benefit sought 
 
remains denied, then provide a Supplemental Statement of the Case to the Veteran and his representative and return the appeal to the Board for appellate review.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Anthony M. Flamini, Counsel

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