Citation Nr: 1124297 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 10-36 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral knee disability, to include as due to an undiagnosed illness or to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a bilateral wrist disability, to include as due to an undiagnosed illness or to service-connected PTSD with depressive disorder. 4. Entitlement to service connection for a gastrointestinal disability, to include as due to an undiagnosed illness or secondary to medication prescribed for service-connected right hip and sacroiliac joint disabilities. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to March 1979, and from July 1979 to January 1994, with service in Southwest Asia during the Persian Gulf War. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. The issues of entitlement to service connection for bilateral knee, wrist, and gastrointestinal disabilities are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not timely appeal an August 1994 rating decision that denied service connection for a bilateral knee disability. 2. Evidence submitted since the August 1994 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a bilateral knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION An August 1994 rating decision denied service connection for a bilateral knee disability. Although the RO reopened the claim in an August 2008 rating decision and has adjudicated the issue of entitlement to service connection on the merits, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 8 Vet. App. 1 (1995). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2010). Thus, the August 1994 rating decision became final because the appellant did not file a timely appeal. The claim for service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in January 2008. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). Only evidence presented since the last final denial on any basis will be considered, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the August 1994 rating decision, the evidence consisted of service medical records and a March 1994 VA examination. The RO found that there was no evidence of a current bilateral knee disability or X-ray evidence of arthritis. Evidence added to the record since the time of the last final decision includes additional service medical records, VA and Naval hospital treatment records, private medical reports and opinions, records from the Social Security Administration, VA examinations, and statements in support of the Veteran's claim. New evidence includes a March 2009 VA joints examination that indicates a diagnosis of minimal degenerative joint disease of the knees. New evidence also includes a July 2006 private medical opinion that a majority of the Veteran's symptoms, including chronic knee pain, result from his PTSD. The Board finds that the evidence received since the last final decision is new and material evidence and raises a reasonable possibility of substantiating this claim because it addresses a previously unestablished fact, that the Veteran currently has a bilateral knee disability and that the knee disabilities may be related to his service or an event or injury in service. That evidence is presumed credible for the purpose of determining whether it is material. Therefore, the Board finds that new and material evidence sufficient to reopen the claim has been received. New and material evidence having been submitted, the claim for service connection for a bilateral knee disability is reopened, and the appeal is granted to that extent only. ORDER New and material evidence having been received, the claim for service connection for a bilateral knee disability is reopened. That claim is granted to that extent only. REMAND Additional development is needed prior to the disposition of the Veteran's claims for service connection for bilateral knee, bilateral wrist, and gastrointestinal disabilities. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claims requires additional development. As an initial matter, the Board finds that the requirements of VA's duty to notify and assist the claimant have not been met. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2010). Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A review of the claims folder shows that additional notice to the Veteran is needed. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While notice that the Veteran received in February 2008 and July 2009 informed him of what was required to substantiate the elements of his claims for service connection for bilateral knee, wrist, and gastrointestinal disabilities on a direct basis, he has not received any notice that informed him of what was required to substantiate his claims for service connection on a secondary or presumptive basis. Therefore, a remand is required in order to allow sufficient notice to the Veteran. Upon remand, the Veteran will be free to submit additional evidence and argument on the questions at issue. The Veteran contends that he has a bilateral knee disability that is related to his service. Service treatment records dated in October 1981 indicate a diagnosis of chondromalacia patellae. In August 1992, the Veteran complained of knee pain from a road march, running, and walking. In September 1992, November 1992, and January 1993, he was treated for and diagnosed with patellofemoral pain. In April 1993, he complained of knee pain from a road march. In May 1993 and August 1993, the Veteran was diagnosed with patellofemoral pain. On VA general medical examination in March 1994 the Veteran was diagnosed with polyarthralgia involving the knees. Post-service medical records include a July 2006 medical record that indicates diagnoses of various conditions, including chronic knee pain, that the physician opined resulted from the Veteran's PTSD. A January 2008 medical record indicates that the Veteran's knee pain began during his service in October 1981 and notes treatment for chondromalacia patella in October 1981, December 1990, and January 1992. An X-ray examination of the knees in December 2007 was normal. On VA joints examination in March 2009, the Veteran was diagnosed with minimal degenerative joint disease of the knees consistent with the natural aging process. The examiner opined that since there were no objective findings of a continuity of care or chronicity of the condition, the Veteran's bilateral knee disability was not related to his service. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Veteran is competent to report the onset of a bilateral knee disability during his service, he is not competent to diagnose or to relate any current bilateral knee disability to any period of his active service or to his service-connected PTSD with depressive disorder. As any relationship remains unclear to the Board, the Board finds that another VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner on remand should specifically reconcile the opinion with the July 2006, January 2008 private opinions, March 2009 VA examination and opinion, and any other opinions of record. Next, the Veteran contends that he has a bilateral wrist disability, claimed as carpal tunnel syndrome, that is related to his service. Service treatment records dated in August 1992 indicate a complaint of wrist pain from carrying a ruck sack. In July 1993, the Veteran was diagnosed with carpal tunnel syndrome (CTS). Naval hospital records dated in June 2002 and October 2005 indicate a diagnosis of bilateral CTS right greater than the left. Records dated in January 2006 and November 2006 show a diagnosis of CTS. Private treatment records include a July 2006 medical record that indicates a diagnoses of various conditions, including CTS, that the physician related to the Veteran's PTSD. On VA joints examination in March 2009, the Veteran was diagnosed with mild bilateral CTS. The examiner opined that since there were no objective findings of a continuity of care or chronicity of condition, the Veteran's CTS was not related to his service. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Veteran is competent to report the onset of a bilateral CTS during his service, he is not competent to diagnose or to relate any current bilateral CTS to any period of his active service or to his service-connected PTSD with depressive disorder. As any relationship remains unclear to the Board, the Board finds that another VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner on remand should specifically reconcile the opinion with the July 2006 private opinion and March 2009 VA examination and opinion, and any other opinions of record. The Veteran also contends that the has a gastrointestinal disability, claimed as gastroesophageal reflux disease (GERD), that is related to his service. Service treatment records dated in June 1986 and December 1990 indicate a diagnosis of esophagitis reflux. On VA general medical examination in March 1994 the Veteran was diagnosed with a history of abdominal cramping. Post-service medical records dated in September 2006 indicate diagnoses of esophagitis chronic reflux and esophageal reflux. Records dated in March 2007 and May 2007 indicate diagnoses of GERD and gastritis. A January 2008 report notes that the Veteran was prescribed NSAIDs for osteoarthritis of his service-connected right hip and sacroiliac joint dysfunction which caused esophageal reflux symptoms. He was diagnosed with esophagitis and chronic reflux. In February 2008, he was diagnosed with persistent acid regurgitation and epigastric pain. A March 2008 report indicates treatment for and a diagnosis of epigastric pain and acid regurgitation. Records dated in April 2008 indicate diagnoses of GERD and gastritis. On VA joints examination in March 2009, the examiner opined that there was no objective evidence to support a clinical diagnosis of reflux esophagitis. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Veteran is competent to report the onset of a gastrointestinal disorder during his service, he is not competent to diagnose or to relate any current gastrointestinal disorder to any periods of his active service or to his service-connected right hip and sacroiliac joint disabilities. As any relationship remains unclear to the Board, the Board finds that another VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner on remand should specifically reconcile the opinion with the January 2008 private opinion and March 2009 VA examination and opinion, and any other opinions of record. It also appears that additional records should be obtained. A review of the claims file shows that the most recent VA medical records are dated in August 2010. To aid in adjudication, any subsequent VA medical records should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the Veteran submitted statements and opinions from private physicians Dr. Bond, dated in January 2008; Dr. AlShurieki, dated in March 2008; and Dr. Akintonde, dated in July 2006, that indicate treatment of the Veteran. However, those statements are unaccompanied by any treatment records. Accordingly, the Veteran's private treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes information on how to substantiate all the elements of the claims for service connection for bilateral knee, wrist and gastrointestinal disabilities on a secondary and presumptive basis. 2. After obtaining the necessary authorization, obtain the Veteran's private treatment records from Doctors Bond, AlShurieki, and Akintonde, and any additional private treatment records identified by the Veteran. All attempts to secure the records must be documented in the claims folder. 3. Obtain the Veteran's VA treatment records dated since August2010. 4. Schedule a Gulf War examination for the Veteran's claims for service connection for bilateral knee, bilateral wrist, and gastrointestinal disabilities. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should specifically attempt to reconcile the opinion with all other opinions of record, including the July 2006 and January 2008 private opinions, and March 2009 VA examination and opinion. The rationale for all opinions should be provided. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. Specifically, the examiner should provide the following: (a) Diagnose any bilateral knee disability. (1) State whether or not the Veteran has any bilateral knee disability that is due to an undiagnosed illness, or whether his complaints can be attributed to a known medical causation. If any claimed disorder is determined to be attributable to a known clinical diagnosis, the examiner should state whether it is at least as likely as not (50 percent or more probability) that any bilateral knee disability, including arthritis, was incurred in or is due to or the result of any period of the Veteran's active service, including in-service treatment for and a diagnosis of left knee chondromalacia patella, bilateral patellofemoral (PFPS), and complaints of bilateral knee pain related to a road march in April 1993. The examiner must consider the Veteran's statements regarding the incurrence of a bilateral knee disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (2) Is it at least as likely as not (50 percent or more probability) that any bilateral knee disability is proximately due to or the result of service-connected PTSD with depressive disorder? (3) Is it at least as likely as not (50 percent or more probability) that any bilateral knee disability has been aggravated (increased in severity beyond the normal progress of the condition) by the Veteran's service-connected PTSD with depressive disorder? (b) Diagnose any bilateral wrist disability present. (1) State whether or not the Veteran has any bilateral wrist disability that is due to an undiagnosed illness, or whether his complaints can be attributed to a known medical causation. If any claimed disorder is determined to be attributable to a known clinical diagnosis, the examiner should state whether it is at least as likely as not (50 percent or more probability) that any bilateral wrist disability, including carpal tunnel syndrome, was incurred in or is due to or the result of any period of the Veteran's active service, including in-service treatment for and complaints of wrist pain from carrying a ruck sack in August 1992 and a diagnosis of carpal tunnel syndrome in July 1993. The examiner must consider the Veteran's statements regarding the incurrence of a bilateral wrist disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (2) Is it at least as likely as not (50 percent or more probability) that any bilateral wrist disability is proximately due to or the result of service-connected PTSD with depressive disorder? (3) Is it at least as likely as not (50 percent or more probability) that any bilateral wrist disability has been aggravated (increased in severity beyond the normal progress of the condition) by the Veteran's service-connected PTSD with depressive disorder? (c) Diagnose any gastrointestinal disability present. (1) State whether or not the Veteran has any gastrointestinal disability that is due to an undiagnosed illness, or whether his complaints can be attributed to a known medical causation. If any claimed disorder is determined to be attributable to a known clinical diagnosis, the examiner must state whether it is at least as likely as not (50 percent or more probability) that any gastrointestinal disability, including gastroesophageal reflux disease, was incurred in or is due to or the result of any period of the Veteran's active service, including in-service treatment for and a diagnosis of esophagitis in June 1986 and December 1990. The examiner must consider the Veteran's statements regarding the incurrence of a gastrointestinal disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (2) Is it at least as likely as not (50 percent or more probability) that any gastrointestinal disorder is proximately due to or the result of service-connected PTSD with depressive disorder? (3) Is it at least as likely as not (50 percent or more probability) that any gastrointestinal disorder has been aggravated (increased in severity beyond the normal progress of the condition) by the Veteran's service-connected PTSD with depressive disorder? (4) Is it at least as likely as not (50 percent probability or greater) that any gastrointestinal disorder is causally or etiologically related to, or aggravated by, medication prescribed to treat the Veteran's service-connected disabilities. 5. Then, readjudicate the claims. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs