Citation Nr: 1330559	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  09-27 792A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder.

2.  Entitlement to service connection for a gastrointestinal disorder, including ulcers.

3.  Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability.

4.  Entitlement to service connection for a right knee disability.

5.  Whether new and material evidence has been received to reopen a claim of service connection for a low back disability.

6.  Entitlement to service connection for a low back disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from April 1984 to May 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal of July 2006, January 2008 and March 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The claim of service connection for psychiatric disorder includes posttraumatic stress disorder.  The claim of service connection for a gastrointestinal disorder includes ulcer disease.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  

The Veteran has not responded to the request to clarify that he wanted a hearing before the Board.  Therefore, the Veteran will proceed accordingly.

The claim of service connection for psychiatric disorder and for a gastrointestinal disorder and the reopened claims of service connection for a right knee disability and for a low back disability are REMANDED to the RO via the Appeals Management Center in Washington, DC.










FINDINGS OF FACT

1.  In a rating decision in October 1987, the RO denied the claim of service connection for a right knee disability; after the Veteran was notified of the adverse determination and of his appellate rights, he did not appeal the rating decision and no new and material evidence was submitted within one year of the rating determination; and the rating decision became final on the evidence of record.

2.  The additional evidence since the rating decision in October 1987 relates to an unestablished fact necessary to substantiate the claim. 

3.  In a rating decision in October 1987, the RO denied the claim of service connection for a low back disability; after the Veteran was notified of the adverse determination and of his appellate rights, he did not appeal the rating decision and no new and material evidence was submitted within one year of the rating determination; and the rating decision became final on the evidence of record.

4.  The additional evidence since the rating decision in October 1987 relates to an unestablished fact necessary to substantiate the claim. 


CONCLUSIONS OF LAW

1.  The criteria to reopen the claim of service connection for a right knee disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

1.  The criteria to reopen the claim of service connection for a low back disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).






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.  

In light of the grant to reopen the previously denied claims for service connection for a right knee and low back disabilities, further discussion of VCAA compliance is not necessary. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural History and Evidence Previously Considered

In a rating decision in October 1987, the RO denied service connection for a right knee disability on grounds that residuals of a right knee injury were not shown at the time of the Veteran's discharge examination and there was no residual disability shown on the post-service VA hospital report.  The RO also denied service connection for a low back disability in the October 1987 rating decision on the grounds that there was no recurring episodes of low back pain in service and the discharge examination showed only a history of low back pain with no abnormality of the back diagnosed.  

After the Veteran was notified of the determination and of his appellate rights, he did not appeal the adverse determination.  As no new and material evidence pertinent to the claims was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran, the rating decision became final by operation of law on the evidence of record, except the claim may be reopened if new and material evidence is presented.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156.



The evidence previously considered consisted of the service treatment records, a VA medical discharge report dated July 1987, and an August 1987 VA psychiatric examination, which contained no complaint, finding, history, treatment, or diagnosis of a right knee disability, but did note d chronic mechanical back pain.

Current Claim to Reopen and Additional Evidence

The current claim to reopen was received by VA in June 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 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.  New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).  

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  




Current Claim to Reopen and Additional Evidence

The additional evidence not previously considered by VA consists in part of VA records.  

VA records show that in January 2003 the Veteran was treated for complaints of right knee pain.  In March 2011, the Veteran was diagnosed with back strain.  

Analysis

As the additional evidence relates to an unestablished fact necessary to substantiate the claims, namely, evidence of ongoing right knee pain and a diagnosis of low back strain, the lack of such evidence was in part the basis for the previous denial of the claims, the additional evidence is new and material under 38 C.F.R. § 3.156.  

For this reason, the claims of service connection for right knee disability and low back disability are reopened, and the claims are remanded for further development.


ORDER

The claim of service connection for a right knee disability is reopened and to this extent only the appeal is granted.  

The claim of service connection for a low back disability is reopened and to this extent only the appeal is granted.  








REMAND

On claim of service connection for a psychiatric disorder to include posttraumatic stress disorder and the claim of service connection for a gastrointestinal disorder to include ulcer disease and the reopened claims of service connection for a right knee disability and for a low back disability, as the evidence of record is insufficient to decide the claims, further development under the duty to assist is needed.  

Accordingly, the case is REMANDED for the following action:

1.  Make another request for the Veteran's service personnel and medical records.  

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.  Pursuant to 38 C.F.R. § 3.304(f), ask the Veteran to identify alternative sources for supporting evidence of the alleged personal assaults in service.  If the Veteran identifies additional evidence, assist the Veteran in obtaining the evidence in accordance with 38 C.F.R. 
§ 3 159. 

3.  Afford the Veteran a VA examination to determine:

a).  Whether the Veteran has posttraumatic stress disorder (PTSD) or a psychiatric disorder other than  PTSD, and, if so,





b).  Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that posttraumatic stress disorder or a psychiatric disorder other than PTSD is related to the events in service.  

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

4.  Ask the Veteran to either submit or to authorize VA to obtain on his behalf medical records, pertaining to the treatment of a gastrointestinal disorder, including ulcer disease. 

5.  Afford the Veteran a VA gastrointestinal examination to determine: 

Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that any diagnosed gastrointestinal disorder, including ulcer disease, is related to an injury, disease, or event in service. 

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





6.  Afford the Veteran a VA orthopedic examination to determine: 

Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that:

a).  Any currently diagnosed right knee disability, is related to service, and,

b).  Any currently diagnosed low back disability, is related to service?

The VA examiner is asked to consider the following: The service treatment records document injuries to the right knee in September 1984 and January 1985 and treatment for low back pain in January 1985.  On separation in the report of medical history in March 1986, the Veteran indicated having recurrent back pain and the examining physician noted that the Veteran had low back pain.

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

7.  After the above development, adjudicate the claims of service connection.  If any either benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  







T3he Veteran has the right to submit additional evidence and argument on the claims 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 E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs