Citation Nr: 1607297 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 12-04 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to a rating in excess of 10 percent for lumbar degenerative disease. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 1989, March 1995 to April 1995, and November 2009 to January 2011, with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011 and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board notes that the request to reopen a claim for service connection for a left knee disability was denied in a June 2011 rating decision. The Veteran submitted an additional request to reopen the claim for service connection for the left knee in January 2012, along with additional evidence pertaining to left knee treatment in service. While this was interpreted by the RO as a new claim to reopen, the Board notes that this constitutes new and material evidence received within one year of the June 2011 rating decision, and thus the June 2011 rating decision remains on appeal. See 38 C.F.R. § 3.156(b) (2015). As the decision below is granting entitlement to service connection for a left knee disability, it is noted that an effective date of January 6, 2011, the day following the Veteran's separation from service, is warranted. See 38 C.F.R. § 3.400(b)(2) (2015). The Veteran testified before the undersigned at a Board hearing in June 2015. A transcript of this hearing has been associated with the claims file. The issues of entitlement to service connection for PTSD and to an increased rating for lumbar degenerative disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed May 2009 Board decision denied service connection for a left knee disability and is final. Evidence received since the unappealed May 2009 decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left knee disability. 2. The evidence clearly and unmistakably shows that the Veteran's left knee disability preexisted his period of service from November 2009 to January 2011. 3. The medical evidence of record does not show by clear and unmistakable evidence that the Veteran's left knee disability was not aggravated beyond its normal progression by his military service. CONCLUSIONS OF LAW 1. The May 2009 Board decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.1100 (2015). 2. The criteria for service connection for a left knee disability are met on the basis of aggravation. 38 U.S.C.A. §§ 1111, 1110, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination of the issues decided at this time, no discussion of compliance with VA's duty to notify and assist is necessary at this time. I. New and Material Evidence Entitlement to service connection for a left knee disability was first denied in a December 2005 rating decision on the basis that a left knee disability had preexisted service and was not permanently worsened as a result of service. The Veteran submitted a notice of disagreement in December 2005, and the claim was again denied in a February 2006 statement of the case. The Veteran perfected his appeal in April 2006, and the claim was denied by the Board in a May 2009 decision. The May 2009 Board decision was not appealed, and it is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The Veteran submitted a new claim of entitlement to service connection for a left knee disability in November 2010. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the prior denial in May 2009, the Veteran has served an additional period of active duty service and submitted new evidence related to that service. The Veteran has submitted service treatment records showing that while deployed to Afghanistan, in October 2010 he complained of reinjuring his left knee during an air assault mission. He reported having pain with physical activity, and he was diagnosed with possible patellofemoral pain or tendonitis. A January 2012 sworn statement from the Veteran described how he slipped and fell while getting off of a helicopter in September 2010 which caused him to have pain and a limp in his left knee. At a March 2013 Decision Review Officer hearing, the Veteran described falling from a helicopter in service and the recurrent problems he has had with his left knee. The Veteran also testified regarding this incident at this June 2015 Board hearing. Board Hearing Transcript 13-14. The Veteran was afforded a VA examination in February 2011. He reported that he had re-injured his knee while deployed in Afghanistan when he fell getting off of a helicopter. Physical examination of the knee found valgus deformity, tenderness, and mild pain. The examiner stated that exacerbation of the left knee pain after a repeat injury during deployment could represent aggravation of the underlying arthritis, although a meniscal tear could also be present. The Board therefore finds that there is ample new and material evidence of record which relates to unestablished facts necessary to substantiate the appellant's claim. The Veteran has testified that he further injured his left knee in service, and this is supported by a service treatment record. The February 2011 VA examiner has furthermore indicated that there may be aggravation of the Veteran's underlying left knee injury. This evidence clearly raises a reasonable possibility of substantiating the claim, and it is found to be new and material; the claim of entitlement to service connection for a left knee disability is therefore reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, although the Veteran's entrance examination for his most recent period of service, which lasted from November 2009 to January 2011, is not of record, there is extensive evidence indicating that the Veteran had a left knee disability which preexisted this period of service. The Veteran's treatment records show numerous reports of complaints and treatment related to the left knee prior to service. In October 1989, the Veteran was in a motor vehicle accident that severely damaged his left knee. Throughout 2004 he was treated for recurring left knee pain, and in November 2011 the Veteran was treated for a left knee tear. The Board therefore finds that the existence of a preexisting disability is clear and unmistakable, and furthermore, this is not contested by the Veteran. The evidence does not, however, clearly and unmistakably show that the Veteran's left knee disability was not aggravated by his military service. The Board finds that there is sufficient evidence, in both the medical treatment records and the Veteran's credible lay statements regarding the severity of his left knee impairment, that the Veteran's left knee disability has worsened during his service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by service "where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease"). The February 2011 VA examiner stated that the Veteran had exacerbation of the left knee pain after a repeat injury during deployment which could represent aggravation of the underlying arthritis, indicating a definite possibility that the Veteran's injury in service could have worsened his preexisting left knee arthritis. While the July 2012 VA examiner came to a differing conclusion, stating that although the Veteran's left knee disability preexisted his military service, it was not aggravated beyond its natural progression, the Board finds that this opinion is not sufficient to establish that aggravation of the left knee disability clearly and unmistakably did not occur. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (The burden of proof falls on the Secretary to demonstrate that the established pre-existing condition of a Veteran did was not aggravated during service.). In sum, the evidence shows that the Veteran's left knee disability clearly and unmistakably preexisted his most recent period of active service, and there is competent medical evidence of record that supports the Veteran's contention that his left knee disability was further worsened by an in-service injury which is not outweighed by clear and unmistakable evidence to the contrary. Therefore, after carefully reviewing the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence does not clearly and unmistakably indicate that his left knee disability was not aggravated by his military service, and entitlement to service connection for a left knee disability is granted. See 38 C.F.R. § 3.102; 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened. Entitlement to service connection for a left knee disability is granted. REMAND I. PTSD The Veteran was afforded a VA examination in March 2013 at which he was found not to meet the criteria for a diagnosis of PTSD. The examiner found that the symptoms of anxiety that he described did not cause functional impairment either occupationally or socially. The Veteran also attended a VA examination in February 2015, but was again found not to meet the criteria for a diagnosis of PTSD. The examiner did, however, diagnose the Veteran with adjustment disorder with anxiety and found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. She noted that the Veteran had experienced significant stressors during his active duty, but stated that the Veteran's symptoms were the result of stressors associated with his Guard service and the demands that it places on him and his family At a July 2014 Decision Review Officer hearing, the Veteran testified that it had been hard for him to talk to the March 2013 VA examiner and that he has difficulty sleeping, problems with his marriage, nightmares, exaggerated startle response, and inability to relax or socialize. The Veteran also testified at a June 2015 Board hearing that he has difficulty sleeping, is affected by loud noises, does not socialize, and has impaired memory. Board Hearing Transcript 4-8. He again indicated that he had difficulty being open to the VA examiners. Id. at 6. The Veteran's VA treatment records show that he has a diagnosis of a traumatic brain injury, for which he has been granted service connection, and that he has reported having difficulty balancing family, work, and National Guard and difficulty relating to his wife. A January 2014 treatment records notes mild, subthreshold PTSD symptoms. The Board therefore finds that this issue must be remanded in order to obtain a new VA examination of the Veteran in order to discuss the significance of his self-reported symptoms and to address whether his diagnosed adjustment disorder with anxiety is related to his active duty service. The Board points out that a claim for PTSD may encompass any psychiatric diagnosis that may reasonably be encompassed by the claimant's description of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Even if the Veteran does not fully meet the criteria for a diagnosis of PTSD, it must be considered whether he has another psychiatric diagnosis which may be related to the stressful in-service incidents that he has reported. II. Lumbar Degenerative Disease In a June 2011 rating decision, the Veteran was granted entitlement to service connection for lumbar degenerative disease with a 10 percent evaluation and an effective date of February 10, 2011. The Veteran subsequently attended a VA examinations of the spine in March 2013 and February 2015. The Veteran stated at the June 2015 Board Hearing, however, that he believed his back condition had gotten worse since his last examination and that he was now experiencing muscle spasms in his back, which he had not reported in February 2015. Board Hearing Transcript 20-21. He also reported having radiating pain down his legs. Id. at 22. VA is obligated to provide a new examination when the evidence indicates that the service-connected condition has become more severe. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In this case, although the Veteran has had a VA examination very recently, he was able to identify a new symptom, that of muscle spasms, which was not present at the time of his prior examination, and the Board accepts that a remand is necessary in order to afford the Veteran a new VA examination. III. Records It does not appear that the Veteran's complete service treatment records or his personnel records have been obtained pertaining to his most recent period of active duty service. As these records have direct bearing on the issues currently on appeal, an attempt to obtain these records must be made prior to any further adjudication of these issues. The record indicates that the Veteran receives medical treatment at the VA Connecticut Healthcare System in West Haven, Connecticut. The record currently contains treatment records dating up to March 2015; all outstanding, relevant VA treatment records should be acquired and associated with the claims file. The Veteran reported at the June 2015 Board hearing that he had been to the Vet Center for treatment for PTSD. Board Hearing Transcript 9. These records must also be obtained prior to further adjudication. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain the Veteran's complete service personnel records and service treatment records for his service from November 2009 to January 2011. All records received should be associated with the claims file. If the AOJ cannot locate the personnel records or service treatment records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain these government records would be futile. 2. The AOJ should obtain all outstanding, pertinent records of treatment of the Veteran from the VA Connecticut Healthcare System since March 2015 and all treatment records from the New Haven and Hartford Vet Centers. All records received should be associated with the claims file. 3. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to determine the nature and etiology of any diagnosed psychiatric disorder. The examiner must be provided access to all files in Virtual VA and VBMS. The examiner must specify in the report that all records have been reviewed. All indicated evaluations, studies, and tests should be conducted. The examiner must address whether the Veteran has a current psychiatric disorder, to include PTSD and adjustment disorder with anxiety. For each diagnosed psychiatric disorder, the examiner must state whether it is at least as likely as not (50 percent or more probability) that the disorder is a result of any incident in service, that it began to manifest during service, or that it is etiologically related to the Veteran's active duty service in any way. If no diagnosis is found, the examiner must discuss the Veteran's claimed symptoms of sleep disturbance, isolation, exaggerated startle response, hypervigilance, and difficulty with interpersonal relations. Please also discuss whether any of the indicated symptoms are attributable to his service-connected traumatic brain injury, and whether it is possible to differentiate the symptoms associated with each separate diagnosis. A complete rationale for any opinion offered must be provided, based upon medical principles and evidence in the claims file. If the examiner is unable to answer the question above, that fact must be stated and the reasons why an opinion cannot be provided must be explained. 4. Schedule the Veteran for a VA orthopedic examination to address the current severity of his lumbar degenerative disease. The examiner must be provided access to all files in Virtual VA and VBMS. The examiner must specify in the report that all records have been reviewed. All indicated evaluations, studies, and tests should be conducted. All indicated tests should be accomplished, and all clinical findings reported in detail, to include range of motion and evaluation for/of any associated neurological signs/symptoms. The examiner is asked to specifically address the Veteran's assertions that he now has muscle spasms and pain radiating down his legs. The examiner must set forth all examination findings with a complete explanation based on the facts of this case and any relevant medical literature for the comments and opinions expressed. The appellant must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2015). 6. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 7. Then readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of these issues. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs