Citation Nr: 1310394	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  10-21 721	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of service connection for disability of the arms and hands.

2.  Whether new and material evidence has been presented to reopen a claim of service connection for a bilateral knee disability.

3.  Whether new and material evidence has been presented to reopen a claim of service connection for chills and night sweats.

4.  Entitlement to service connection for disability of the arms and hands.

5.  Entitlement to service connection for a bilateral knee disability.

6.  Entitlement to service connection for posttraumatic stress disorder. 

REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services 




WITNESSES AT HEARING ON APPEAL

The Veteran and Mr. W.

ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel


INTRODUCTION

The appeal has been advanced on the Board's docket.

The Veteran served on active duty from July 1990 to June 1993.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2008 and in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).  

While on appeal, in a rating decision in March 2010, the RO granted service connection for right and left ankle disabilities and claims are no longer in appellate status. 

In November 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's.  

In November 2012, the Veteran executed a power of attorney in favor of the Georgia Department of Veterans Service as his representative. 






The reopened claims of service connection for disability of the arms and hands and for a bilateral knee disability, the new and material evidence claim for chills and night sweats, and the claim of service connection for posttraumatic stress disorder are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In a rating decision dated in June 1994, the RO denied the claims of service connection for a disability of the arms and hands and for a bilateral knee disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision or submit new and material evidence within the one year appeal period. 

2.  The additional evidence presented since the rating decision dated in June 1994 by the RO, denying service connection for disability of the arms and hands, relates to an unestablished fact necessary to establish the claim.

3.  The additional evidence presented since the rating decision dated in June 1994 by the RO, denying service connection for a bilateral knee disability, relates to an unestablished fact necessary to establish the claim.


CONCLUSIONS OF LAW

1.  The rating decision in June 1994 by the RO, denying service connection for disability of the arms and hands and service connection for a bilateral knee disability, became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).




2.  New and material evidence has been presented to reopen the claim of service connection for a disability of the arms and hands.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2012).

3.  New and material evidence has been presented to reopen the claim of service connection for a bilateral knee disability.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

As the new and material evidence claims for arms and hands, and knees are reopened, the only claims decided, further discussion of VCAA compliance is not necessary.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Standard for Reopening a Claim

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.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

As the Veteran's claim was received after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies. 



"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 the claim. 

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510   (1992).

In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of that claim

Additional Evidence

The additional evidence presented since the rating decision in June 1994 consists of additional VA records, private medical records, statements submitted by the Veteran, and the Veteran's testimony at a hearing in November 2011.

Bilateral Arm and Hand Disability

In the rating decision in June 1994, the RO denied the claim because there was evidence of a disability.  The records submitted since the RO's rating decision in June 1994 includes VA records for May 2009 documenting a diagnosis of carpal tunnel syndrome and private medical records, noting a sensory deficit in the right hand.  




The evidence of current disability relates to an unestablished fact necessary to substantiate the claim, the absence of such evidence, in part, was the basis for the previous denial of the claim, and the evidence is new and material. 

Therefore, the claim of service connection for disability of the arms and hands is reopened.  Before the claim can be decided on the merits, additional development of the evidence is needed under the duty to assist.

Bilateral Knee Disability

In the rating decision in June 1994, the RO denied the claim because there was evidence of a disability.  The records submitted since the RO's rating decision in June 1994 includes VA records which noted an impression of chronic knee pain, probably secondary to an old trauma and a diagnosis in September 2009 of knee arthralgia.  

The evidence of current disability relates to an unestablished fact necessary to substantiate the claim, the absence of such evidence, in part, was the basis for the previous denial of the claim, and the evidence is new and material. 

Therefore, the claim of service connection for a bilateral knee disability is reopened.  Before the claim can be decided on the merits, additional development of the evidence is needed under the duty to assist.











ORDER

As new and material evidence has been presented, the claim of service connection for a disability of the arms and hands is reopened and, to this extent only, the appeal is granted.

As new and material evidence has been presented, the claim of service connection for a bilateral knee disability is reopened and, to this extent only, the appeal is granted.


REMAND

Before deciding the reopened claims of service connection on the merits, and the application to reopen the claim for service connection for chills and night sweats, and the claim of service connection for posttraumatic stress disorder further development is needed.

VA records in June 2008 show that the Veteran's only income was from Social Security disability insurance.  As there is a reasonable possibility that the records could help substantiate one or more of the claims, VA is obligated to obtain the records.  Golz v. Shinseki, 590 F.3d 1317, 1322 (2010).

On the claim of service connection for posttraumatic stress disorder, in April 2008 and in September 2009, the RO determined in a formal finding that there was insufficient information to corroborate the Veteran's claimed stressors.  

During the pendency of the appeal, the evidentiary standard for establishing an in-service stressor to support the diagnosis posttraumatic stress disorder was amended.  




The amended regulation provides that if a stressor is related to fear of hostile military activity and a VA psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary and where the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay statement alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3).

As the evidence is insufficient to decide the claim and as there is conflicting evidence as to the stressor, supporting the diagnosis of posttraumatic stress disorder, a VA examination and medical opinion is needed under the duty to assist. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain records from Social Security Administration.  If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 

2.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records, pertaining to a vehicle accident in 2004.  

3.  Afford the Veteran for a VA psychiatric examination to determine:







Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the Veteran has posttraumatic stress disorder related to service, including fear of hostile military activity.

The Veteran's file must be provided to the VA examiner for review. 

4.  After the development has been completed, adjudicate the claims.  On the claim of service connection for posttraumatic stress disorder, consider the current version of 38 C.F.R. § 3.304(f)(3).  If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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. 2012).



______________________________________________
George Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs