Citation Nr: 1604986	
Decision Date: 02/09/16    Archive Date: 02/18/16

DOCKET NO.  12-12 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a right knee condition, to include whether new and material evidence has been received to reopen a previously denied claim.  

2.  Entitlement to service connection for a psychiatric condition, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his brother




ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from August 1979 to January 1984.   

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2014, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) to arrange for the Veteran to testify at a Board hearing.  Accordingly, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in December 2015.  A transcript of the hearing has been associated with the claims file.  

The Board has characterized the issue involving service connection for a psychiatric condition to include PTSD, as this broad characterization is needed to reflect the scope of the issue intended by the Veteran, as shown by his Board hearing testimony.  See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009); Board Hr'g Tr. 16.  

A claim of service connection for a bilateral knee condition was previously denied in a May 1984 rating decision.  The Board does not have jurisdiction to address the merits of a previously denied claim without first determining that new and material evidence has been submitted.  See 38 U.S.C.A. §  7104(a); 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Elkins v. West, 12 Vet. App. 209, 218-19 (1999); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  The current claim is not a new claim because in his original claim the VA had construed the Veteran's claim as encompassing any right knee disorder.  See Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009).  Therefore, his current claim must be considered as a petition to reopen, and the Board has recharacterized the issue on appeal to reflect this jurisdictional issue.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of service connection for a right knee condition and a psychiatric condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The evidence received since the May 1984 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  


CONCLUSION OF LAW

Because evidence received since May 1984 is new and material, the claim of service connection for a right knee condition is reopened.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran was previously denied service connection for a bilateral knee condition in May 1984.  Therefore, his current claim is considered a petition to reopen.  



A.  Applicable Law - New and Material Evidence

(1) Finality of Prior Claims

A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief.  38 U.S.C.A. § 5104 (West 2014).  Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected.  38 C.F.R. § 3.103(f).  A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing.  38 C.F.R. § 20.200; see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

An NOD is a written communication from a claimant or from his or her representative expressing (1) dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and (2) a desire to contest the result.  While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201.  All filings by a claimant must be construed based on a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); see also 38 C.F.R. § 20.200.

An NOD must be filed within one year from the date that the RO mailed notice of the rating decision.  See 38 C.F.R. § 20.302(a).  Generally, a VA decision becomes final if an NOD is not filed.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.1100, 20.1103.  It is, however, incorrect to assert that a rating decision is necessarily final because the Veteran failed to file a NOD.  See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011).  

To the contrary, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  

VA has an express regulatory obligation to make a determination regarding the character of the new evidence submitted.  An initial claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after a decision on the initial claim was not new and material under 38 C.F.R. § 3.156(b).  Mitchell v. McDonald, 27 Vet. App. 431 (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014) (distinguishing Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008)). 

Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim.  See 38 C.F.R. §§ 3.156(c), 20.1000(b).  By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted.  Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014).

(2) Reopening

To reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.  Kent v. Nicholson, 20 Vet. App. 1, 10 (2006); see Bostain v. West, 11 Vet .App. 124, 127 (1998) (noting that the "last final disallowance" of a claim was the denial of a request to reopen).

"New" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

New and material evidence is not required "as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).  "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence."  Id. at 117.  Rather, it is simply "a component of the question of what is new and material evidence," and should be informed by the question of whether the evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade, 24 Vet. App. at 117-18.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  For purposes of the "new and material" analysis, the credibility of the evidence is presumed unless it is "inherently false or untrue" or "patently incredible."  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Furthermore, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary.  See Shade, 24 Vet. App. at 118-19, 123.  If the McLendon standard is met, the claim should be reopened.  See id.

B.  Discussion

(1) Finality of Prior Claims

The Veteran's original claim, which was filed in January 1984, was denied in a May 1984 rating decision.  It appears that notice of this rating decision was sent to his latest address of record.  The claims file contains an intervening-but undated-letter from a different government agency to the Veteran, and it lists a P.O. Box.  Because this letter is undated, it is not clear that the Veteran had moved in the intervening time.  Nor does not appear that the Veteran informed VA of any change of address.  Also important, the letter was not returned as undeliverable, and there has been no indication from the Veteran that he did not receive notice of the May 1984 rating decision.  Therefore, any addressing error in mailing of the May 1984 rating decision is nonconsequential.  Clarke v. Nicholson, 21 Vet. App. 130 (2007); Crain v. Principi, 17 Vet. App. 182, 187 (2003); .  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).

The Veteran did not appeal the May 1984 determination and no new and material evidence was received prior to expiration of the appeal period.  Accordingly, the original claim became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b), 20.200, 20.201, 20.300, 20.302, 20.1103.

(2) Evidence Previously Considered 

The claim was denied in May 1984 on the basis that "Neither SMR's or VAE[xamination] found a bilateral knee condition."  

(3) Subsequent Evidence Received

The Veteran filed a new claim in December 1985, which appears to have remained unadjudicated until the current rating decision now on appeal.  Since that time, the Veteran's VA medical records have been received, and those records reflect a diagnosis of a right knee condition.  The Board finds that this evidence is "new" because it was not before the adjudicator in May 1984.  The Board also finds that the new evidence is "material" because it reflects a diagnosis of a right knee condition, which is the reason the claim was denied in May 1984.

Moreover, this evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary.  See Shade, 24 Vet. App. 110.  

The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for a right knee condition.  Hence, the appeal to this extent is allowed, and the claim is now subject to review based on the entire evidentiary record.  

The Board notes that the Veteran's military personnel file was obtained in May 2009.  Those records do not relate to the right knee.  Therefore, the original claim may not be reconsidered pursuant to 3.156(c).  See Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014).

As this represents a complete grant of the relief sought on appeal, no discussion of VA's duties to notify and assist is needed.  38 U.S.C.A. §§ 5103(b)(5)(A), 5103A(b)(3)(A).  


ORDER

As new and material evidence has been received to reopen the claim of service connection for a right knee condition, the appeal to this extent is allowed, subject to further action as discussed herein below.


REMAND

A.  Right Knee

The Veteran's claim of service connection for a right knee condition must be remanded to (1) obtain missing private treatment records, and (2) to arrange for a VA addendum opinion.  

(1) Missing Private Treatment Records

The Veteran previously underwent a VA examination in January 2012.  With regard to the likely etiology of the Veteran's right knee condition, the VA examiner determined that she "cannot resolve this issue without resort to mere speculation."  She explained that the Veteran's STRs reveal complaints on one occasion for bilateral knee popping with a questionable diagnosis of chondromalacia patella, but that the VA medical records report the Veteran sustained bilateral knee injury after a car accident, and the accident medical records from the ER visit at the private hospital were not available for review.  

The Board notes that the VA examiner is referring to VA medical records in September 2007 showing that the Veteran fell while riding a bus, suffering bruises and spring of left wrist and both knees.  The records note that the Veteran was seen in the ER at Wellington Regional Medical Center, where X-rays were noted to be negative both knees with no effusion and with full range of motion.

At present, those private medical records from Wellington Regional Medical Center have not been obtained.

It must be clear, from an examiner's statements that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis.  When the record leaves this issue in doubt, it is the Board's duty to remand for further development.  Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).

Here, because the records from Wellington Regional Medical Center were cited by the VA examiner as relevant and because it is not clear those records are not procurable, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf.  

(2) VA Examination Addendum

Because the VA examiner did not have all needed records to review, the matter must be returned to her for an addendum opinion once the private medical records have been obtained.  




B.  Psychiatric Condition

The Veteran's claim of service connection for a psychiatric condition must be remanded to obtain a VA examination.  No VA examination has been conducted, but one is necessary to adequately address all the complex medical questions raised by the appeal.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims, to specifically include treatment at Wellington Regional Medical Center in September 2007.  

Also notify the Veteran that he may submit written statements from himself and/or from other people who have first-hand knowledge describing the history of his in-service and/or post-service symptoms.  

The Veteran should be provided an appropriate amount of time to submit this evidence.

2.  Attempt to obtain all identified records not previously obtained.  All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile).  

Associate all obtained private records with the claims folder.  

3.  Obtain all of the Veteran's VA treatment records not already associated with the claims file.  Then, continue associating VA treatment records to the claims file on an ongoing basis until the case is recertified to the Board.  

4.  All attempts to fulfill the preliminary development specified in paragraphs 1-3 above must be documented in the claims file, and the Veteran must be notified of the results of any unsuccessful efforts.  

The Veteran must be also notified that he is always allowed to provide such records himself, notwithstanding VA's inability to obtain the records.  

5.  If, after completing all development set forth in paragraphs 1-4 above, the private medical records from Wellington Regional Medical Center in September 2007 are obtained, arrange for the relevant information in the Veteran's claims folder to be returned to the examiner who conducted the September 2007 VA examination (or a suitable substitute if such examiner is unavailable), for the purpose of preparing an addendum opinion regarding the claimed right knee condition.  (The need for an additional in-person examination should be determined by the examiner.)

Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies.  Based on the examination results, the examiner is asked to provide an addendum opinion on each of the following questions: 

(a)  Provide a current diagnosis for any and all right knee disorders found extant.  If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve?

(b)  For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, to include treatment in March 1981 for complaints of knee popping? 

In answering all questions (a) to (b), please articulate the reasons underpinning your conclusions.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion.  A report of the examination should be prepared and associated with the Veteran's VA claims file.

6.  After completing all development set forth in paragraphs 1-4 above, arrange for the Veteran to undergo a VA examination to address the claimed psychiatric condition.  The relevant information in the claims file must be made available to the examiner for review.  

Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies.  Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: 

(a)  Provide a current diagnosis for any and all psychiatric disorders found extant.  If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve?

(b)  Did any diagnosed condition preexist the Veteran's active service, which began in August 1979? 

(c)  If preexisting his service, did the condition worsen (i.e., increase in severity) during service?  If yes, was that worsening due to the natural progress of the disease? 

How certain are you in your answers to questions (b) and (c)?  Would any doctor with the same information reasonably be able to reach a different conclusion?

(d) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? 

If PTSD is diagnosed, please identify the stressor(s) upon which the diagnosis is based. 

If you determined in questions (b) and (c) that a condition preexisted service, this should include consideration of whether the current condition represents the current manifestation of that preexisting condition.  

(e)  If not directly related to service on the basis of question (b), is any psychiatric condition proximately due to, the result of, or caused by any other medical condition(s)?  If so, please identify the other medical condition(s).  

(f)  If not caused by another medical condition, has any psychiatric disorder been aggravated (made permanently worse or increased in severity) by any other medical condition(s)?  If so, please identify the other medical condition(s).  Also, please identify whether any increase in severity was due to the natural progress of the disease.

In answering all questions (a) to (d), please articulate the reasons underpinning your conclusions.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion.  A report of the examination should be prepared and associated with the Veteran's VA claims file.

7.  After completing all actions set forth in paragraphs 1-6, plus any further action needed as a consequence of the development completed in paragraphs 1-6 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement.  If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations.  The Veteran and his representative should be afforded the appropriate time period to respond.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 2014).




______________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs