Citation Nr: 1107821 Decision Date: 02/28/11 Archive Date: 03/09/11 DOCKET NO. 08-30 185A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for osteoarthritis, bilateral knees, and if so, whether it should be granted. 2. Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from December 1969 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied reopening of a previously-denied claim for service connection for osteoarthritis, bilateral knees, and denied a claim for service connection for bipolar disorder II, claimed as depression. Jurisdiction over the claims was subsequently transferred to the RO in Winston-Salem, North Carolina. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has accordingly characterized the mental health issue as shown on the title page. The Veteran testified at a hearing before an RO Decision Review Officer (DRO) in December 2008. A transcript of the hearing is associated with the claims files. The issues of entitlement to service connection for osteoarthritis, bilateral knees, and entitlement to service connection for psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed May 2006 rating decision, the Veteran's claim of entitlement to service connection for "bilateral knee condition/arthritis" was denied. 2. The evidence associated with the claims files subsequent to the May 2006 decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for osteoarthritis, bilateral knees. CONCLUSIONS OF LAW 1. The RO's May 2006 rating decision denying service connection for osteoarthritis, bilateral knees, is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for osteoarthritis, bilateral knees. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court defined the elements required for adequate notice when the issue is new and material evidence. Given the Board's favorable determination in reopening the claim, no further notice is required with respect to the claim to reopen. Legal Principles Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record in a case before VA with respect to benefits under the laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA will give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. However, the benefit- of-the-doubt rule does not apply when the issue is new and material evidence. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Analysis A rating decision in May 2006 denied service connection for osteoarthritis, bilateral knees, based on the RO's determination that no evidence was submitted to show that a bilateral knee condition/arthritis was related to active service. The Veteran was notified of the decision but did not appeal. The evidence of record at the time of the May 2006 rating decision consisted of service treatment records and two VA examinations for the spine and right shoulder in April 2004 and February 2006 in which the condition of the Veteran's knees was noted but not diagnosed. The Veteran's request to reopen the claim was received in November 2007. Evidence received since the May 2006 rating decision includes private treatment records received in March 2008 and a VA examination in March 2008 in which the Veteran first reported that he had direct impact of force to both knees in a motor vehicle accident while on active duty and had a slow but progressive increase in pain to both knees. The VA examiner diagnosed osteoarthritis, bilateral knees, and patellar tendinitis, bilateral knees. Because diagnosis of a current disorder was one of the elements not present in May 2006, this evidence is sufficient to reopen the previously-denied claim. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Accordingly, reopening of the claim of service connection for osteoarthritis, bilateral knees, is in order. ORDER New and material evidence having been presented, reopening of the claim for service connection for osteoarthritis, bilateral knees, is granted. REMAND After careful review of the record, the Board finds that further evidentiary development is needed before adjudication of the Veteran's claims for the reasons explained below. Service Connection - Osteoarthritis, Bilateral Knees In light of the Board's foregoing decision granting reopening of the Veteran's claim for service connection for osteoarthritis, bilateral knees, the originating agency must adjudicate the reopened claim on the merits after undertaking the following indicated development. The Veteran asserts, and testified before an RO DRO in December 2008, that a bilateral knee disability is related to a motor vehicle accident (MVA) that occurred during his active service. Service treatment records (STRs) reflect that the Veteran was involved in a one car automobile accident in service in January 1972. Multiple STRs indicate injury to his right shoulder, neck, and lower back but not to either knee. As outlined above, post service treatment records reflect that in a March 2008 VA examination the Veteran reported that he had direct impact of force to both knees in a MVA while on active duty and had a slow but progressive increase in pain to both knees. The VA examiner diagnosed osteoarthritis, bilateral knees, and patellar tendinitis, bilateral knees. The Board notes that an examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); See Charles v. Principi, 16 Vet. App. 370 (2002) (where there is competent evidence of a current disability and evidence indicating an association between the disability and active service, there must be competent evidence addressing whether a nexus exists). A VA examination with specific medical opinions should be obtained to resolve the etiological issue discussed above. Service Connection - Psychiatric Disability The Veteran asserts, and testified before an RO DRO in December 2008, that his psychiatric disability is related to the MVA that occurred during his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Review of the claims files shows that the Veteran was afforded a VA examination for mental disorders in March 2008 in which the examiner diagnosed, in pertinent part, bipolar II, most recent hypomanic, moderate with religious/somatic preoccupations; rule out (R/O) schizoaffective disorder, bipolar-type. The examiner opined that the Veteran did not meet the criteria for a diagnosis of major depressive disorder (MDD), but did meet the criteria for either a bipolar disorder II, most recent hypomanic with loosening of thoughts, vs. schizoaffective disorder, bipolar- type. He also opined that because there was little in the research concerning bipolar or schizoaffective disorder being "caused" by a certain event in one's adult life, other than genetics or childhood abuses, he could not resolve the question of the MVA in service "causing/aggravating" or otherwise complicating the Veteran's life in any way. Under the circumstances, remand for an addendum opinion is appropriate. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records pertaining to both issues on appeal. 2. Then, the Veteran should be afforded a VA orthopedic examination to determine the nature and etiology of any current disability of the knees. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner should provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) that any current knee disability had its onset in service or is otherwise related to service, to include the MVA in 1972. Reasons and bases for all conclusions should be provided. 3. Then, the claims folders should be returned to the VA examiner who conducted the VA examination for mental disorders in March 2008. After reviewing the claims folders and previous examination report, the examiner should provide an addendum in which he should express an opinion as to whether there is a 50 percent or better probability that any psychiatric disability, to specifically include bipolar disorder, had its onset in service or is otherwise related to service. Attention is directed to service treatment records concerning a psychiatric evaluation conducted in service. The rationale for any opinion expressed must also be provided. If the March 2008 examiner is no longer available, the claims folders should be reviewed by another physician with sufficient expertise who should provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 4. The RO or the AMC should undertake any additional development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate these remanded claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claim folders are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs